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How Can You Get 50/50 Physical Custody When You Don’t Currently Have Custody (And Why It May Be Unlikely to Happen)

child walking downstairs with items in arms

Many clients come to my office consult about their case and tell me that their goal is to get 50/50 custody of their children. In a lot of these situations, it is fathers who are unmarried to the mothers and have not been significantly involved in the child or children’s lives up until they decide to consult with an attorney- often because either the mother or the state is pursuing child support. Under operation of law, until paternity is granted/ordered by the court, through operation of law, the mother who gave birth to the child is the presumed custodian of the child. Generally, unless the mother is unfit, the child is having significant behavioral, school or medical issues that the mother is not addressing or the child is a teenager who is able to articulate reasons to live with the father, this may not be a realistic goal.

There are two ways to be awarded 50/50 custody: 1) that the court or judge awards it or 2) the other parent agrees to it. While many judges have been reluctant to award 50/50 custody, the tide is changing in this regard. However, in order to encourage a judge to believe this is an appropriate case for 50/50 custody, often the parent seeking 50/50 time has to show the court that he or she is playing a significant role in the child’s life, is prepared for this type of significant role, among other considerations. Another significant consideration by the court is the level of co-parenting and cooperation the parents are able to engage in. this is because if a child is going to thrive in living in two homes on an equal basis and regularly going back and forth, the parents have to work together extremely well to ensure that the child’s needs are met in both homes.

The overriding factor in any custody award or determination is the best interests of the children. If the parents do not have a demonstrated history of getting along and cooperating, often they are not going to be able to coordinate to ensure the children’s needs are met in both homes. Studies have shown that in situations where the parents split 50/50 custody but do not get along, there is likely to be much more confusion for the child, the child is unlikely to have consistent expectations at each home, such as training and discipline, the child is likely to be exposed to fighting and disagreements between the parents and the child is much less likely to consider their life a happy one.

While there is significant research showing that children thrive in joint custody situations, this also presumes that the parents are working together and cooperating to make this successful. Another significant consideration in awarding custody, particularly in 50/50 situations may be a concern by the court that one parent is trying to alienate the other parent. This phenomenon, known as “parental alienation” is a significant concern as one parent seeks to diminish or reduce the value of the other parent in the child’s life. Another consideration is whether the 50/50 custody arrangement has worked for the child. This may be the result of parents living in same household, raising the child jointly with both parents acknowledging that each played a significant role in the child’s rearing or if the parents have been separated for an extended period, that they were both having significant parenting time. Finally, in some circumstances, a custodial parent can agree to 50/50 division. This is often a difficult agreement to broker and is frequently the result of a parent who may be viewed as unfit by the court so he or she agrees to 50/50 custody in an effort to reduce the chances that they lose full custody.

If you believe 50/50 custody is appropriate for your family, it is important to involve an experienced and knowledgeable family law attorney. At Pingel Family Law, we can assist you with analyzing your situation and determining the right and best course of action for you and your family. Call us today at (816) 208-8130 to schedule your consultation.