Does A California Judge Have To Adhere To A “50/50” Split Of Parenting Time?

Ideally, parents who decide to divorce can come together and negotiate an acceptable schedule for sharing custody. Of course, the court is the final arbiter of what arrangements are in the “best interests” of the child. And if a dispute does later arise, say as to whether to modify a previously agreed upon schedule, the Court is not strictly bound by the original terms the parents agreed upon.

Parents Disagree Over Where Child Should Attend Kindergarten

A recent unpublished decision from the California Second District Court of Appeals, Proulx v. Neal, provides a useful illustration. This case involves two parents who divorced in 2018. They have a young son. At the time of the divorce, the parties agreed to a custody schedule that provided a roughly 50/50 split of parenting time.

The child was of preschool age at the time. The parents agreed that the child would attend one preschool part-time while living with the father, and a second preschool part-time while living with the mother. When the child turned five, however, the parents disagreed as to where he should attend school for Kindergarten full time. Each parent wanted to enroll the child at a school near their home and have the child spend the school week with them.

After holding a four-day hearing, the judge decided to endorse the father’s plan. The mother objected on the grounds it would result in giving her “less than a 50 percent time share” and effectively cut her out of decisions regarding the child’s education. The court dismissed the mother’s objections and granted final approval to the father’s choice of school.

On appeal, the Second District affirmed the judge’s decision. The appellate court noted that this was not a case where one parent proposed to “move away” or relocate with the child. Such decisions require a court to determine whether or not the proposed move would be to the detriment of the child. But here, the selection of the school did not require the child to move or change primary residences.

More to the mother’s point, the Second District said the trial court was not required to rigidly “preserve a 50/50 physical custody schedule regardless of which school [the child] attended the next fall.” Put another way, the judge did not have to order “an arithmetically perfect split.” Both parents acknowledged this would be impossible now that the child would only attend one school full time. Indeed, the appellate court said the mother’s own counter-proposal, which the trial court rejected, would have given her 65 percent of the time spent with the child. She could not therefore object to the judge granting an unequal split of time to the father.

Contact a Campbell, California, Child Custody Attorney Today

Child custody issues are always best decided through voluntary negotiation between the parents. A judge should only be called upon as a last resort. If you need legal advice or representation from an experienced Campbell child custody lawyer, contact Hepner & Pagan, LLP, today to schedule a consultation.