Should 50/50 Custody be a Legal Requirement?

Posted on Mar 28, 2022 by Katie Carter


Custody and visitation is a challenge in any set of circumstances. It’s worth mentioning that, even among happily married couples, parenting challenges arise pretty consistently. It should probably come as no surprise that, for people who tried to be involved but ultimately couldn’t make the marriage or relationship work long term, there are additional coparenting issues.

That’s not a dig at anyone. Parenting is so hard. And when you consider that two different people from completely different backgrounds are trying to navigate their way through an unfamiliar landscape with a child when they’ve never raised a child before – or, at least, haven’t raised this child before (because they’re all SO DIFFERENT) – well, it’s no wonder there’s conflict.

I hear it all, from “Moms always win custody,” to “Moms always lose custody.”

Obviously, I’m on mom’s side here, because I work at a firm that is dedicated to representing women exclusively in custody cases. It might be worth mentioning, too, that I am a mother myself, and that I find myself doing the lion’s share of the parenting in my own household. So, I have both a personal and a professional perspective that, in general, is in favor of mothers.

Today, the law doesn’t technically favor one parent over the other; at least, not in Virginia. In Virginia, the law is based on (1) a general presumption that the court will consider every type of custody, including primary physical, shared physical, and split physical, and (2) that the court will consider the ‘best interests of the child’ factors in making a determination.

There are definitely criticisms of this approach, and, in some ways, it’s a departure from what the law was before the law requiring consideration of all forms of custody went into effect. I don’t think there’s any question that the state of the law today is more egalitarian than in previous years. But it’s also relevant to point out that most custody arrangements are settled, rather than litigated, and that dads are often willing to give moms primary physical custody. Litigated cases, which according to this article I read amount to 10% or so of overall custody cases, often result in shared custody – but that’s a small margin of overall custody cases.

And, of course, custody cases themselves can differ a lot. It’s not always a case of two well-meaning parents who just happen to disagree over parenting strategies; in some cases – in fact, in more cases probably than most people realize – there are real issues, from domestic violence to substance abuse and more. It’s not fair to just say, well, dads deserve equal time, too, without delving into the issues in each family that may (or may not) make a mandated shared custody arrangement a requirement.

It’s also not fair to moms to suggest that we have some sort of inherent caregiving nature that makes us more ideally situated to raise children. It hurts women, personally and professionally, when we can’t find support. Especially in modern times, with COVID-19 cases on the rise, and fewer resources available to us, from schools and daycares to testing and vaccines, especially for younger kids, expecting women to bear the brunt of childrearing is unrealistic and damaging, both to moms and to kids.

I’m no economist or sociologist, and I’m not really prepared to debate the merits or demerits of certain parenting arrangements. I’m also not divorced or separated myself, so I can’t give an anecdotal account of how good or bad it has been in my own life. Reading the article from the Washington Post that I shared above, and the fictionalized account of the couple, Ashlyn and Jordan, sort of made me roll my eyes.

On the surface, it seems to suggest that two coparents who have had a tumultuous relationship – even going so far as to make sexual abuse allegations against each other, for example – can ultimately credit a statute that presumes 50/50 custody with giving them the ‘freedom’ to settle into a more harmonious coparenting relationship. That, to me, seems almost laughably simplistic, not to mention that it ignores other cases where there’s more going on under the surface.

Is it worth it to mandate 50/50, without giving real consideration to the circumstances underlying each case? Sure, to have a ‘best interests’ standard means that the judges have to bring their own personal experiences to the table and ultimately make a decision – a decision that, in some cases, might turn out to be harmful for the kids involved – in an already overburdened judicial system. Sure, it invites a certain amount of uncertainty and unreliability and subjectiveness to the decisions rendered by courts. But it also leaves room for evidence to be introduced that supports an alternative conclusion.

Parenting is a difficult enterprise under any circumstances. But presumed 50/50 statutes look to me like a way to discount the experiences of concerned parents, to ignore the needs of the children involved, in an effort just to give lip service to a more egalitarian way of parenting. Maybe that’s the way the country should eventually trend; maybe it would help lessen the burden that moms everywhere are feeling, ESPECIALLY in the wake of the pandemic. But it’s not really the place of a statute to try to enforce change on a societal level.

I don’t see how you enforce a statute that doesn’t leave at least some room for subjective judgment on the part of judges, GALs, and other professionals involved in the system. Sure, it’d be better if the parents could work things out themselves, but, in those 10% of cases that wind up in the courts, it does seem to me like being able to listen to the concerns and render a decision tailored to that specific case is the ideal outcome.

‘Best interests of the child’ may be flawed, but is 50/50 better? It sounds scary to me.

For more information, to request a copy of our custody book, or to schedule an appointment, give our office a call at 757-425-5200.