THE BLOG
09/12/2014 03:13 pm ET Updated Nov 12, 2014

Splitting the Baby

Why 50/50 "time-sharing" is not always the answer:

"Time-sharing" sounds like such a lovely idea. So very civilized. We will all do the very thing we teach our child to do almost from out of the womb. Share. Share something you love. Easy enough, right?

We pull the toy out of the very hands of the child who will not share. Those who don't share are deemed naughty. Children are even evaluated in school for their ability to share. It is a fundamental human social skill. We are all on the sharing bandwagon -- until you get a divorce and the very thing you have to share is your child. Then all this sharing crap goes right out the window, and people are back on the playground, only this time they are paying roughly a collective $1,000 per hour to get their share of what belongs to them. After all, anything less than half just wouldn't be fair to them. Children, however, don't divide as easily as the furniture and sometimes 50/50 time-sharing is the most unfair resolution of all.

Let's be real, "fair" is a place to go for a funnel cake; you are not going to get it in the courtroom. Divorce is not fair and there is certainly nothing fair about spending even one night away from your child. I often think of the King Solomon story in the context of the cases where time-sharing becomes an issue and people demand 50/50 or there will be war. After all, the child is half theirs, right? To paraphrase Solomon's story, when asked to choose between two women purporting to be the real mother of a baby, the wise King says that they should just split the baby down the middle, literally, as the only fair solution. The real mother, of course, objects and says she would rather the baby live with the other woman, than die and be shared. Sometimes love is about letting go, of a night or a few. Maybe you have to give up a little child support or maybe you have to pay a little more depending on the number of nights. Maybe what is best for your child looks more like a 60/40, or 37/63.

In my many years of practicing law, it is amazing how many people make this "equal time-sharing" demand without ever really thinking about the perspective of a small child. To me, it is the most important starting point. After all, the child is the one person who really, truly did nothing to put themselves in the middle of this mess. Think back on being a small child. Remember how long it took to get to summer and how it seemed to go on forever. As an adult, years go flying by so quickly it takes our breath away. This is very easy to explain. A day to a small child is a huge percentage of their existence, we however, have lived over 10,000 days before the age of 40. A two-year old child has lived a mere 730 days, with only a few of these days actually forming a memory for them. What does a week away from one parent or the other feel like for them if it pains you? Who cares, right, as long as you get your equal time? Well, maybe we all need to spend less time on getting what we deserve and more time giving our children what they really need. Empathy is really underrated, especially in family law.

I litigate for a living, but if I do my job really well, you never step foot inside a courtroom. If you step foot into a courtroom, you have already lost. You have abdicated your parental authority to the state rather than compromise with someone you once loved. A stranger will now decide where your child will lay their head at night. Bravo. Judges, for the most part, are more than willing to do the best they can in the "best interest of the child" but they don't know YOUR child. Every child is different. In the real world the judge will have an hour or maybe if you're lucky, a day to hear your entire life story. Every child deserves the schedule that is right for them and that grows and changes with their needs while giving them frequent and continuing contact with both parents. A two-year-old may need more time with their primary caretaker in the intact marriage, whether it was Mom or Dad. A small child may need to ease into overnights away from the primary caretaker. A breastfeeding baby may need a few more months before overnights begin. I often tell clients just because you can force overnights for a child before they're ready, does not mean you should.

When I was a much younger lawyer, I remember watching a judge admonish two parents who had come into court for an uncontested final hearing with an agreed 50/50 week on/week off rotation for a three-year-old child. He first asked them both if they were exceptional parents- really exceptional parents. He asked them if they had thought about what this would feel like for the little boy, how they would handle the logistics of such an arrangement. Did they live down the street from each other? Did they have a plan for the other parent to visit in the off week? They had not. They just figured it was fair for them. Then he told them that in his many years on the bench he had seen many good parents but not a lot of exceptional ones and that he would not enter the order until they came back and were prepared to say they had actually thought this was best for their child and could explain how they would make this work for him as he grew. He sent them on their way. I have told this story often in my practice as I require my clients to do the really hard work with each other and for their children. Looking at each child differently and not a one size fits all solution. Do the right thing until it hurts and you know you are doing it right. But remember, not every judge cares as much as this one, or takes the time to determine what is right for your child. They often have no better option in the ugly battles of he said/ she said then to split the baby, literally, somehow. (Many judges would like to give neither party the child if that was actually an option after seeing the bloodbath some parties engage in while fighting to prove themselves the winner in the game of being the better parent.)

We all knew this parenting thing was no piece of cake. It was going to be hard anyway that's for sure. Divorced parenting is just short of impossible at times. We take two people who are likely not great communicators to begin with, and now thrust upon them a higher duty of communication than they ever needed when living under one roof with the kids.

The decisions to fight over our children in the name of fighting "for" our children are harmful and often without a clear goal in mind other than to win. Sometimes they are unnecessarily fueled by my own kind, the divorce attorneys. Often they are fueled though anger, an inability to forgive or feelings of inadequacy as a parent if we don't "fight" for our children. Sometimes we need to give up a day or two for our children to really be ok. In the best situations and most of the time even in the worst, we eventually get to the place of peaceful coexistence where you allow your ex to have your Thursday to go to the football game and he watches the kids while you go on that business trip. Parenting should be viewed as a privilege, not a right. It will all work out, if we genuinely and selflessly put our love for our children in the forefront no matter what timesharing percentage results.