We get 50/50, right?
Updated: Mar 18
I've had a few of my male clients call recently stating, "I heard the law has changed and men now have 50/50 parenting time. How can I get my parenting time changed?"
First of all, the law has not changed. There is a push by a certain State Representative Runestad to introduce legislation that would require Judges to award 50/50 custody and parenting time to both parents absent domestic violence and/or child abuse and neglect. Most family law attorneys, myself included are against this legislation because we don't believe it takes the best interest of the child into consideration.
Let's talk about how custody is currently determined. I mostly practice in Wayne County with a smattering of cases in Monroe and Oakland. In six years I have had one case go to trial regarding custody. One out of several hundred cases with children. What this tells me is that Judges do not make the majority of the decisions regarding custody and parenting time; the parents come to an agreement. It is a rare situation that a case will go to trial and the Judge will make a custody determination. I see the majority of parents coming to a decision regarding custody and parenting time and it generally follows what the parties were already doing pre-filing.
If mom and dad were both involved parents then both mom and dad will have nearly equal parenting time. If one parent was the provider and worked all of the time and the other parent was the primary caretaker of the children the parenting time might follow that line as well. Having said that, if mom stayed home pre-divorce, she is likely going to need to get a job post-divorce and dad is going to have to take care of the kids more than what he did during the marriage.
I'm seeing a lot of 50/50 parenting time. In fact, I tell my clients when I sit down in the first interview that they should expect 50/50 custody and parenting time. If they expect something different there needs to be a really good reason and they need to be able to prove it to the Court if it goes that far.
The majority of my cases settle with 50/50 parenting time or close to it. The few cases that I've had that did not result in equal parenting time usually involved a parent who has a substance abuse problem, alcohol abuse problem, or is neglectful, has a mental illness, or is abusive.
I think a law that says that all cases must be determined to have equal parenting time does a disservice to families. This may not be in the children's best interest, and each case should be taken on a case by case basis based on that case's facts.
One recent case, where dad was severely mentally ill and could barely take care of himself, would have been a disaster for 50/50 for the three year old little boy. Another case, where mom was breast feeding her baby while addicted to opioids, heard voices, saw spirits, and was convinced that dad was abusing his child was another case where dad got primary physical custody of the baby. It would have been wrong to start that case out at 50/50.
A lot of thought and years of case law have gone into the current "best interests of the child" parenting time and custody standards and should not be thrown away because one lawmaker wants to make sure all dads everywhere in the State gets mandatory 50/50 parenting time. In 1985, when I got divorced, the standard parenting time plan for dads was every other weekend and two weeks in the summer. That is no longer the case.