How to get 50/50 custody of my children, Part 2 of 3: Filing for Custody

How to get 50/50 custody of my children, Part 2 of 3:  Filing for Custody

This is part 2 of 3 of a series that will explain how to increase your chances of obtaining equal parent time with your children in a divorce or custody battle. This article will focus on what pieces you need to have in place when filing for custody.  

You can read Part 1 here and Part 3 here.  

Fix your residential issues.

In order to be granted 50/50 custody, you need to show that you have the ability to facilitate that kind of parent-time schedule. This means that you need to have a residence that is relatively close to the other parent’s home, and your residence needs to have adequate space for the children. Courts don’t expect that children should each have their own room, but it helps. Courts don’t usually like it when older children not of the same sex share rooms, so if you have a teenage son and a teenage daughter, it’s best if they each have their own room. Make sure you have real beds for the kids and some of the comforts that make them feel like they have a “home” at your residence. Sharing living spaces is okay so long as the people you’re living with are safe and known to the children (typically, this is a grandparent, aunt, or other extended family member), and your living space isn’t too cramped.  

Fix your work schedule issues. 

Additionally, get your work schedule to a place where you can facilitate a 50/50 schedule. Some of this is common sense, but it’s worth noting that courts will not grant a parent 50% custody if they work a graveyard shift and aren’t home in the evenings; courts will not grant a parent 50% custody if they are unavailable when the children are out of school (i.e., work the swing shift); and courts will be hesitant to grant a parent 50% of the overnights if a parent travels a lot for work or needs excessive daycare. If your employer is unaccommodating and rigid with your schedule, you may be in a position where you have to choose whether to find another job so you can exercise 50/50 custody or stick with your current job and ask for as much parent time as possible. The court understands that parents need to work to provide for their children, so common 9 am-5 pm schedules are typically conducive to exercising a 50/50 schedule. Flexibility in your work schedule is also helpful. Some parents will adjust their schedule based on the days they have the children. If you have the ability to coordinate your days off with the days you have the kids, that will be a tremendous incentive for the court to allow you to exercise more parent time. Whatever you decide to do, you need to do it before you ask the court for 50/50 custody. The court is unpersuaded by parents who come before the judge and say, “If you grant me 50/50 parent time, then I will change my work schedule or find another job.”  That legwork needs to be done before you make your request.  

Gather good evidence of your involvement in the children’s lives.

To be granted 50/50 custody, you need to show that you have been “substantially involved” in your children’s lives. If you don’t know this already, you will quickly figure out that the court favors evidence. So, what evidence do you have of your active involvement? Instead of just saying, “I’ve attended doctors’ appointments, school field trips, parent-teacher conferences, extracurricular activities…” etc., do a little better. Get out your smartphone and snap selfies when you’re there at the school field trip you volunteered for, take a picture of your child holding their report card at a parent-teacher conference, take a parent-child photo at their soccer game, and mark the dates of your attendance at their doctors’ appointments in your online calendar. Go back through your photos and your records. Were you there at the child’s birth, holding them in the hospital? Use that photograph as evidence. Were you at the well-child checkups? Figure out what dates you attended. Did you volunteer two years ago at the school Christmas party? Get the date. If you need other ideas, read part 1 of this series—there are other ideas there. Make a list of everything you’ve done to be involved in the children’s lives, attach pictures and other documentation substantiating your involvement, and give it to your attorney. This way, when you before the court for the first time, you’re not just saying you’ve been involved, you’re showing proof that you’ve been involved.   

File a Petition and a Motion for Temporary Orders.

To get your case started, you will need to file a Petition. If you are married, you will file a Petition for Divorce. If you’re not married, you will file a Petition for Custody, Parent-Time, and Support. In that Petition, you will state broadly that you are requesting joint physical and joint legal custody. You do not need to detail your involvement in the children’s lives in this document—that will come later. You will also need to include a parenting plan in this document, detailing a plan for how you intend to get along with and co-parent with the other parent—your attorney will know how to do this.  

Early in your case, have your attorney prepare a Motion for Temporary Orders. You can read more about this motion here. Essentially, this is a motion where you tell the court, “This case may be litigating for a long time, and I don’t want to wait that long to establish my parental rights. I would like to start exercising 50/50 parent-time now.”  Along with this motion, you will present the court with all of the evidence you’ve gathered, and that has been discussed in these articles. The court will then schedule a hearing. The court is backed up, so you may have to wait a couple of months for that hearing. If you are successful in getting 50/50 parent-time at this hearing, and you do well with the parent-time you are awarded, you will drastically increase your chances of being awarded 50/50 custody in a final order in your case. So, as you can see, this motion can be incredibly influential in the final outcome of your case. 

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