Why isn’t 50/50 custody the default resolution in child custody cases?

I have studied this question throughout my career, and I’ve been a divorce and family lawyer for 25 years. If there is one family law question to which I know the answer, it is this one. 

Eventually, a rebuttable presumption of 50–50 custody will become the norm. That change is happening now, although I am appalled at how slowly. 

There are many reasons why a 50-50 custody award is not the presumptive/default physical child custody award. I will list those reasons in the order of what I believe to be the strongest to the weakest. I do not mean that the strength of an argument depends upon how intellectually rigorous and honest the reason is. I mean how entrenched the reason is in society and in the legal culture. 

#1. Nothing else comes close: sexism. Any knowledgeable and experienced divorce and family law attorney will tell you that although sexism is not as strong as it once was a generation or two ago, it is still alive and kicking the butts of fit fathers who are denied the joint equal physical custody of their children. It is as shocking as it is terrifying as it is disgusting to see mothers and their lawyers make sexist arguments that the court’s still accept. Such as? 

  • Children, especially young children, need to spend more time with their mother than with their fathers. 
  • Women are born nurturers, more naturally competent parents than are men. 
  • Children are more strongly bonded to their mothers than to their fathers. 
  • (This one is particularly insulting) men who want more than minimal custody and parent time with their children do so to avoid having to pay child support. 
    • While it is true that some men don’t really want to be that involved in their children’s lives, yet seek sole or joint custody simply to reduce the amount of child support they have to pay without having any intention of engaging in the level of responsibility that a joint equal physical custodian should, to suggest that men in general want joint custody solely or primarily to save money is a pretty damn cynical view of men, not to mention a pretty damn false one. Think about it. If men wanting joint custody are motivated by greed, does that mean that women wanting sole or primary physical custody of their children are motivated by greed as well? 
    • We all know plenty of women who oppose a joint custody award and seek a sole or primary custody award precisely for the financial benefits primary or sole custody confers. It is unfair to presume that either mothers or fathers inherently seek a child custody award that is the most financially advantageous at the expense of their children’s emotional and physical well-being. 

#2. Unscientific and pseudoscientific principles (that are usually, though not always, invoked to mask the blatant sexism). Such as? 

  • Children should not be going back and forth like ping-pong balls between their parents’ respective homes 
    • There is some truth to this, but only under certain circumstances. The way I explain it to my clients and to legal professionals with open minds (few though there are currently) is that joint equal custody doesn’t benefit children if the parents live so far away from each other that the children don’t have access to the same group of friends and other familiar surroundings and resources. 
    • If mom and dad live many miles apart, the kids end up having no friends in either mom’s neighborhood or dad’s neighborhood. Here’s why: they are only in mom’s neighborhood half the time and only in dad’s neighborhood half the time. that makes it hard to make friends in either neighborhood. And so the kids often end up with no friends in either neighborhood. Certainly no close friends. They don’t go to church with the same kids on the weekends. While they may go to one school, if that school is in one parent’s neighborhood, then the kids don’t do anything with their friends after school on the days and weeks when they are with the other parent. 
      • Some parents and lawyers and judges think that the solution to this problem is having the children go to a school centrally located between moms and dads house. this almost never works well. the kids may have friends at school, but because they do not live in the neighborhood without school is located, their friendship is limited to the time they spend at school. 
    • Joint equal physical custody works best for children when the parents live within walking distance of each other, when the parents reside in the same neighborhood and school district and parish. Yet even when these circumstances exist, I’ve seen courts that still refuse to award of joint equal custody claiming that going back and forth between moms and dads house is a problem in itself, not a symptom of parents who live too far apart. 
  • joint equal custody makes it hard for kids to follow two different sets of rules in each parent’s home. What utter bilge. Sure, if the environments and rules in each parent’s home are so radically and catastrophically different from one another as to do the children harm, then perhaps joint equal custody can’t work. But such a scenario just doesn’t arise often enough to dismiss the idea of joint equal custody out of hand on this basis. The majority of parents are going to agree upon things like diet and bedtimes, and those parents who aren’t in total agreement will likely have rules and routines that don’t differ enough to do the children harm (such as bedtime at mom’s being 8:30 p.m. and bedtime at dad’s being 9:00 p.m., or mom may eat out with the kids more often than dad does— these are differences that are going to do the children long-term damage, if any damage at all). 

There is one legitimate reason why every child should not be in a 50–50 physical custody arrangement: when the circumstances of the parents and children are not conducive to a joint equal physical custody (50-50″) award. 

  • Sometimes the circumstances of one or both parents makes joint equal physical custody more trouble than it’s worth, of no benefit to the child, or even deleterious to the child. 
    • Work schedules and distance between the parents’ respective homes may not be conducive to the exercise of joint equal physical custody.

If a parent is unfit to exercise custody of a child, then that’s not really a problem with joint equal physical custody, but a matter of the parent’s incompetence. Holding father to a burden of proof that presumes them to be unfit until proven otherwise, is patently irrational, unconstitutional, and fundamentally unfair and gratuitously harmful to children and fathers alike. 

Utah Family Law, LC | | 801-466-9277 

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