Many people exit a divorce with children with the desire to balance the custody relationship so the parents split time with the children in a 50/50 custody arrangement. I have written several times about the risks involved in 50/50 child custody arrangements. As great as they are when they work, they are terrible for everybody when they go wrong. The risks are so great that many Texas family judges are hesitant to approve 50/50 custody in a divorce.
The reason for the refusal is that the judge believes the standard possession order (the typical 1-3-5 weekend schedule) is a good default to include in the divorce decree and if the parties want to come up with some other arrangement they can do that and if it fails then the standard possession order remains as a default. It’s not a bad idea; although sometimes the inclusion of the 50/50 custody schedule in the divorce decree can actually help give the parties clear direction how to stay on course when things get rocky between the parents.
Divorce attorney for 50/50 custody in Texas
As a divorce attorney who drafts 50/50 custody arrangements, I generally include them if the parents can prove four conditions.
1. There is a healthy parenting relationship;
2. The 50/50 custody arrangement is more likely to maintain the healthy parenting relationship;
3. Moreso than including the standard possession order as a default;
4. And they both understand that there is a high probability that the situation becomes unworkable over time. If that happens it may require going back to court to change the terms of the decree.
Without these conditions, it rarely makes sense to adopt a complex arrangement that relies on a cooperative relationship where the parties got to the point of needing a divorce decree because their relationship has already faltered. I see a lot of these 50/50 custody arrangements fall apart and as a Fort Worth divorce lawyer I would rather add value to a client’s divorce by helping them avoid another round of litigation where I can.
Importance of drafting a 50/50 custody arrangement in the Texas divorce decree
Regardless of the design of a 50/50 custody arrangement (e.g. alternating weeks, 5-2-2-5, etc.), a well drafted custody arrangement in a divorce decree or mediated settlement agreement is a critical part of improving the probability of maintaining the 50/50 custody when problems arise between the parents. The possession language in the divorce decree or settlement agreement becomes important when the parents are unsure of how to handle a unique situation or conflict arises. If the parents are unsure of how to deal with the situation and the divorce documents provide no guidance then the parents are stuck stewing in the situation. It is easy for the relationship to deteriorate to the point where the cooperation necessary for a 50/50 custody arrangement disappears.
Sometimes people think they will just figure it out down the road but in five or ten years you and the other parent may not have the same memories of how they intended to deal with the problem and the parenting relationship may be so deteriorated that a rational discussion is no longer probable. These are reasons why I believe people should be very careful about putting a 50/50 custody arrangement in their divorce decree or mediated settlement agreement and quite frankly it’s one of the worst topics to try to draft without the help of Fort Worth divorce lawyers.
Key considerations in drafting a 50/50 custody arrangement in Texas
These points are only some of the considerations in a 50/50 custody arrangement under Texas law. There are many considerations that could be important in any particular divorce (or other family situation) that may be as important or more important than some of these.
- Is it reasonable to believe no significant changes will occur to the parents that would make this unreasonable?
- How will the parents live close enough to make it reasonable to transport the child(ren) on a regular basis?
- How will decisions be made about who will register the child(ren) for school?
- What happens if neither parent can take possession of the child(ren) during a particular time period?
- What happens if a parent relocates for work?
- And what happens if one or both parents remarries?
- How will child support be addressed?
- Who will have final say if the parents do not agree on a course of action?
- How will work schedule changes affect possession?
- How will the parents exchange possession of the child(ren)?
- What happens if one or both parents lose their jobs or take pay cuts?
- How will the parents deal with extracurricular activities?
- How will medical decisions be addressed when the parents disagree about treatment?
- Will discipline agree across both households?
These might seem like small issues now but I have seen 50/50 custody arrangements fall apart over a lot less. You have to remember that in ten years everybody will be in a different place in their lives. A lot can change in attitudes, financial status and household makeup. Dealing with particular situations in the order language is not always the right course of action; but the language needs to balance clear instructions with the ability to broadly apply. That is where a Texas divorce lawyer experienced with drafting 50/50 custody arrangements can really put value into legal counsel.