Let’s start with the maybe not-quite-so-obvious. In family law, it doesn’t really matter what “studies” suggests or what the “data” says. We are not making arguments about what is best for many children, or most children, or some randomized, average, but ultimately representative group of children.
We are talking only about your children.
The children who are the subject of the pending litigation.
Results of a study, or arguments based on data points, whether supported by peer reviewed study or completely fabricated, are not admissible in court. They do not reflect the legal standard.
In Virginia, the legal standard is “best interests of the child.”
What is the best interests of the child?
A good question. In Virginia, there are ten factors identified by statute as the “best interests of the child” factors.
If you’re making an argument about child custody, you should – using these factors – make an argument about what is in the child’s best interests. There are other laws, too, of course, like the fact that the court must consider all forms (primary physical, shared physical, and primary physical) of custody equally, but the governing principle is that whatever is ordered by the court or agreed to by the parents should support the child(ren)’s best interests.
It is not relevant what a study might have showed because the children who participated in that study may or may not be representative of your children.
Because your children are unique, right? And your family, too? The specific demands of your family, the needs of your children, and the ideal family arrangement based on those needs and demands are all unique. A study that is not based on your family and your children and drawing its conclusions only based on your children and your family is just … not relevant.
You won’t get far if you want to get a study admitted in a child custody case. You’d do better to focus on the ten factors and the specific facts, evidence, witnesses, and exhibits you can use to make an argument that supports the parenting plan that you believe is in your child(ren)’s best interests.
I don’t think 50/50 is in my child(ren)’s best interests.
Great. Neither do I. In fact, I am personally a believer that, though most children benefit from strong relationships with two healthy coparents, many (including my own, incidentally, were it to come down to it) also benefit from having a secure home base. It’s not that they don’t go back and forth, or they never have an overnight, but living out of a suitcase to satisfy both parents’ need – rather than whatever the child(ren) actually need themselves – to feel like things are equal for the sake of equality is just … not it. That’s parents treating kids like a house or a 401(k) to be equally divided.
The question(s) are about your kids. How are they doing? What are they doing? What has worked and what hasn’t? Who has done the work (and who hasn’t)? To whom are they the most securely attached? What are your respective work schedules like? What amount of caregiving can you both realistically be expected to do? Where will you live?
There are a million questions (and as many more answers) about your specific situation and your specific children, what is most feasible, and what is most beneficial for everyone involved.
I don’t pretend to know all of these answers for you today – I don’t even know you – but it’s worth reflecting on how your kids are doing now and what will help them either continue on a good path or, if they’re not doing that well, find themselves walking a better one in the not-too-distant future.
What alternatives can I suggest to 50/50 custody?
I love this question. Custody doesn’t have to be either week on/week off or every other weekend! It’s not like those are the only two options, though, if you listen to people on social media, you might think they are!
No, there are a million different options. And it’s definitely worth considering a 60/40, 70/30 or even 80/20 split, if you and your child’s father can agree. (And, if you can’t, you can ask the judge to order it.) What might those parenting plans look like? I wrote an article a little while ago with different breakdowns, including advantages and disadvantages, so that might be a good place to start.
Bonus points, though, for suggesting an alternative at all. Going into court blindly – or negotiating blindly – is a good way to get blindsided, or to wind up with a super generic parenting plan. You want to think through all of the options and ultimately make suggestions, either to your child’s father directly or to the judge if your case goes to trial.
No, really, though – do kids do better with 50/50?
Gosh, it’s impossible to say, isn’t it? And, also, who cares? We are talking about YOUR kids. Will they be okay? Probably they will, particularly if you and your child’s father can find a way forward that minimizes the ongoing conflict.
Conflict, really, is what creates bad outcomes for kids. And certain other factors, like parental mental illness, addiction, or poverty. But it generally isn’t divorce itself that shapes these outcomes, provided that the parents are healthy. The negative contributing factors that I mentioned – poverty, addiction, mental illness, and even ongoing conflict – are generally bigger drivers of negative outcomes. (And, sure, you can look to the studies for this information, because we’re talking generally and not preparing evidence for trial.)
What matters is whether YOUR kids will be okay. And studies have also shown that one protective, safe parent is often enough to drive good outcomes, even if you have a narcissistic, high conflict, or abusive coparent on the other side. In fact, you can and should research this, because I think it’ll make you feel better.
They’ll be okay, whether you wind up with 50/50 or something else, if you’re okay. If you’re safe, healthy, and protective, no matter what your parenting plan says. If you show up, if you give them a place to safely regulate, and if they know that they don’t have to perform for you.
Virginia is not a mandatory 50/50 state, but many cases do start out at 50/50 or close to it because the court believes that having two involved parents is best for kids. I would personally *edit* that statement to include that children are better off having two healthy, present, safe, fit parents, but the court seems to care (at least initially) about presence, rather than all of those other annoying extra qualifiers.
Should I even bother litigating if it’s going to be 50/50 anyway?
It’s complicated. I can’t guarantee an outcome. It won’t necessarily or automatically be 50/50, but that also doesn’t mean it won’t be.
Probably the best first step is to at least talk to an attorney. Get a sense of your situation and your options and come up with a plan from there. Because, like I said, I can’t really do that from here, without any context into your specific situation. You might decide to go forward; you might also decide to negotiate. Both choices are equally valid, but only you can actually choose.
Keep in mind, too, that if things don’t go well, custody and visitation are endlessly modifiable if there’s a material change in circumstances. So, if you wind up with 50/50 (or any other arrangement) and the kids are suffering, you can petition the court to modify custody and visitation. Over and over. Until your youngest child turns 18, you could go back to court again and again to change that parenting plan. I’m not saying you necessarily want to, but … if the situation warrants, you might choose to modify a few times over the years.
No one can make the decision for you, but you always have the option to go to court if you and your child’s father can’t negotiate an outcome that you’re happy with. Of course, the same also applies to him; he can file petitions with the court, and then you’d have to respond.
What’s really best for kids – your kids, remember – is complicated. It could also evolve over time. But, then again, maybe it won’t. Maybe what’s good for them now will always be good for them. Maybe they’re adaptable and they’ll do fine with whatever the arrangement is. I don’t think there’s any question that two healthy, fit coparents can go a long way towards helping kids adjust to whatever their new normal looks like, but, then again, you can’t control whether your coparent is healthy, fit, or able.
There are, of course, many, many reasons you might want to limit their contact with a dad who isn’t fit, healthy, or able, and you shouldn’t let anyone tell you that this isn’t a legitimate goal in many cases. While it’s probably safe to say that I have a sampling that isn’t necessarily representative of the larger majority of cases (because I see, so often, the ones who ultimately wind up in litigation, which represents a vast minority of custody cases overall), I see lots of protective parents engaged in litigation designed to keep their kids in their own, safe care. It’s less because they don’t see the benefit of a present and involved dad – quite often, they bemoan that they DON’T have this and how their kids may suffer, now and in the future – but because the father figure they have does not meet those criteria.
Both things can be true: that kids would be better off with a dad and also that the dad that they have is not going to leave them better off.
You can look to the studies, if it makes you feel better, but ultimately that’s not going to be relevant information for the court to consider. There may be other elements of your custody case, like a Guardian ad litem or a custody evaluation, but the bulk of it will come down to the “best interests of the child” factors and finding an arrangement that will satisfy your coparent and meet your child’s ongoing needs. It’s an art, rather than a science.
For more information, to learn about more coparenting arrangements, or to schedule a consultation, give our office a call at 757-425-5200.