How to Get 50/50 Custody (Part 1: Pre-Litigation Strategy)

This is part 1 of 3 of a series that will explain how to increase your chances of being awarded 50/50 parent-time of your children in a divorce or custody battle. This article will focus on pre-litigation strategy. Said another way, this article will focus on what you should be doing before you file your court action and notify the other parent that you will be engaging in a legal battle.  

You can read Part 2 here and Part 3 here.  

New 50/50 Custody Law

In 2021, a new statute was put into effect that is often called the 50/50 custody statute. You can review that statute here. This statute states that in order for a parent to be granted 50/50 custody, they must prove they have been “actively involved” in the children’s lives. Of note, this statute anticipates historical, past involvement—not new-found involvement. This means that it might not be enough for you to suddenly become actively involved once a petition for divorce or a petition for custody is filed—you will usually (but not always) need to show you were actively involved prior to the filing of the court action.  

Maximize Involvement with your children before litigation frustrates cooperation with the other parent.

Litigation is often necessary, especially when the other parent refuses to allow you to be involved with your children. However, it’s important to recognize that once you file that Petition for Divorce or Custody, the other parent is likely going to be even more restrictive than they have been in the past—this is a common defensive reaction. So, while the other parent is still willing to work with you and be flexible, you need to start to carve out as much time with your children as possible and establish a status quo where you are involved in the children’s daily needs.  

Practically speaking, here are some things you can do:

1. Start taking your kids to school or picking them up.  
2. Figure out when your kids have doctor’s appointments and attend them. If the other parent won’t tell you when they are, call the doctor’s office and ask. 
3. Figure out when you can be involved at school in a field trip or volunteer effort. If you work, take a day off to be involved.  
4. Go to your kids’ extracurricular activities. If you don’t know when they are, call the coach or city and figure it out. If possible, ask if you can help assist at practice, bring treats to the games, etc. 
5. Cook meals for your kids. 
6. Do activities with your kids when they’re with you. This doesn’t have to be something that costs money (although it could be), but being able to show you are actually doing something that creates memories is important. Good free activities can include playing board games at home, hiking in the mountains, going to the park, visiting extended family, etc.  
7. Keep track of your kids’ grades and how they’re doing with assignments and tests. Help them with homework, contact teachers about issues, and attend parent-teacher conferences and back-to-school nights.  

Keep evidence of your involvement in these activities. You can do this by taking selfies and pictures at your kids’ events, making notes of the specific dates you attended an appointment, or keeping documentation you received while involved.  

Don’t leave the house.

If you are staying in the same house as the other parent, don’t leave. Certainly, there are exceptions to this, like when you are in danger of domestic violence. However, absent your personal safety, you should try to stay in the same home as your children. Leaving the home and finding another place to stay shows the court that you can find another residence to live in—this typically means that you will never be able to reside in that home again. Staying in the home until a hearing where the court decides on a parent-time schedule is a good strategy because it shows the court that you have been in close proximity to your children, you’ve seen them daily, the kids are used to seeing you, and therefore it’s easier for the court to institute a schedule that maintains that same level of involvement.  

Be on the lookout for protective orders.

Parents sometimes will file protective orders to try and gain a leg-up in upcoming litigation. For example, both parents know that a court case is forthcoming, and the other parent wants you out of the house ASAP, but you’re (wisely) unwilling to leave until you’re court-ordered. In this situation, the other parent may file a protective order because a protective order will usually require you to leave the home. In order to successfully be granted a protective order, the other parent will have to prove that there was domestic violence, abuse, or a substantial likelihood of abuse and, therefore, they need protection. If you suspect the other parent is going to file a protective order, here are some things you can do:

1. Do not raise your voice, threaten, take any aggressive action, or have any physical contact with the other parent in any argument or conversation. If the other parent is refusing to let you leave the room, acting aggressively towards you, or making threats, call the police.  
2. Record conversations, arguments, and disputes. In Utah, as long as you are a party to a conversation, it’s legal to record it without telling the other side. Don’t be obnoxious or obvious about it by holding your phone up in front of their faces—this usually just escalates conflict. Just quietly turn your phone or other device on and start recording. If they later tell you that they’re going to file a protective order, you can alert them to the fact that you recorded all the disputes and will produce them to the court (but won’t produce them to the other parent at this time) to show that you never committed any abuse or domestic violence.  
3. Call the police when there is a dispute. Calling the police in the event of a dispute doesn’t mean you want to press charges (although it can be if you were assaulted). It just means that you need a neutral third party to do an investigation and document what happened. Police reports can be used in later protective order hearings.