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Equal Child Custody Revisited

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Several months ago I submitted a blog entitled "Why Equal Child Custody Should Not Be Presumed." It is accessible on the Huffington Post Divorce Website in permanent archives. In that blog I stated that one size does not fit all and that I believed the statutory policy requiring 50/50 equal custody should not be the law.

I have received some comments where people have been very upset over my position.
In the state of Michigan where I practice there have been proposals in the legislature to have the statutory presumption for joint, equal, physical custody. The law has not been passed as of this date.

The general view of the attorneys who specialize in family law is that one size does not fit all. The view is that custody and parenting time should be decided on a case by case basis without a mandate or rebuttable presumption.

There clearly is a trend in Michigan and elsewhere towards a sharing of custodial arrangements.

There is also a trend to get away from some of the arguments over semantics. In Michigan there is a presumption favoring joint legal custody, which means that in almost every case the parents are to share in any major decision making consistent with the best interests of their children. This covers medical issues, school related issues, religious issues, and extracurricular activities by way of example.

I also feel that we are too hung up on semantics. A lot of battles are over physical custody. In many of my cases I don't even use the terms physical custody, whether it is sole physical, primary physical, or joint physical. We will simply say that there is to be joint legal custody with a shared decision making arrangement and then set forth a parenting time schedule which is what visitation is called for the simple reason that both parents are parenting when they are with the children and not visiting.

In many of my cases I have an equal parenting time schedule with arrangements ranging from a 2-2-5, by way of example. The children may be with mom on Monday and Tuesdays, and dad on Wednesdays and Thursdays and then the parents alternate weekends with their children. This is called a 2-2-5 because the children go two days with each parent and never go more than five days without seeing the other parent. I have some arrangements where it is one week on and one week off with an overnight in the middle so that they again don't go more than several days without seeing the other parent. The possible scenarios are endless.

There are many shared custodial arrangements where it is not equal but it may be a 60/40 arrangement, it may be six out of 14 overnights; five out of 14 overnights; anything is possible. The key is not what is best for the parents but what is in the best interests of your children.

The angry responses that I have received to the blog were that attorneys just want to litigate and that the clients are being hurt. The truth of the matter is that where two people can agree then a shared custodial arrangement is clearly going to work and is clearly in the best interests of the minor children.

Let's look at the scenario where we have a high conflict divorce where each parent cannot agree on anything. One will say it is raining, the other will say it is not. One parent will say it is midnight; the other will say it is morning. I have had many cases like this and even if there were a presumption by statute favoring joint physical custody, these are the cases where the litigation would continue. These are the cases where there would not necessarily be joint physical custody. Do I believe that joint physical custody makes sense? Do I believe that there should be a sharing of the children as much as possible? Absolutely!

On the other hand, I believe that there are cases where it just will not work. I have found over the years, that in most cases where parents get along and there is not high conflict, there can be a very easy relationship where the children, especially teenage children, can go back and forth between each home. This works, and makes sense.

On the other hand, in most cases where there is a high conflict, whether because of anger, bitterness, domestic violence, abuse, or perhaps mental illness, these are the situations where every detail has to be spelled out. Every day has to be spelled out; the hours of pick up and drop off have to be spelled out. These are the cases where joint physical custody too often will not work. Where the parents cannot communicate at all, everything has to be detailed so there is no room for argument.

Another issue is the right of first refusal. This is where one parent may be on vacation or have a work schedule that he or she has to be out of town and the other parent should be the standby. In cases where there is good communication, this makes sense, and isn't even necessary. In those cases where there is high conflict where the parties cannot agree on anything, the right of first refusal makes no sense and often is used as a weapon by one parent against the other.

Although I may be antagonizing some people I stick to the views of my prior blog. While I believe joint physical custody makes sense in the majority of cases, it does not make sense in every case. I do not believe that it should be statutorily mandated. Every case is different. The key again is not what is best for the parent; it is what is in the best interests of the children. Most states have best interests of the child or children in their custody statutes and this is what is to be followed.

I welcome comments and a discussion on this issue. It is clearly a hot topic and it is one that is important.