The headline is a bit of a teaser. It’s not that your lawyer is holding back. It’s more likely you just aren’t asking the right questions. Long ago, when this writer first started to practice custody always went to mom and dad got Saturday to Sunday from noon to noon. But as women went into the workforce and families became reliant on two incomes whether divorced or not, the amount of custodial time allocated to fathers kept increasing. Thus, in the past twenty years we have witnessed a decided trend toward equal physical custody or something quite close to equal. Some counties in Pennsylvania presume equal custody although the case law says they shouldn’t be making any such presumption.
On its face, fairness would seem to suggest that parents should have equal time with their kids. And many lawyers encounter clients who come into the office professing they want equal custody or worse, they will not abide any result that is not 50/50. When I encountered the latter statement from a prospective client, I would often ask: “Would you consider 45% of the time with your kids a “loss?” If the answer was affirmative, I knew I had a problem because that answer was typically more ego based than needs based. What I wanted to ask the client were two questions. First, do you understand the arithmetic difference between 50/50 and 55/45? The answer is 18.5 days a year. The second question is “What loss would your children experience if they did not get those additional 18.5 days with you?”
Most lawyers don’t choose to go down that road of inquiry because it telegraphs weakness or at least undue haste to compromise. The client is likely to leave the interview searching for someone who better understands how important 50/50 custody is. The way a commercial litigation attorney would put it is far more precise but no less devastating. “How much are you prepared to pay the lawyer to get the result you want, knowing that no lawyer can guarantee results?” In a commercial world if I am owed $20,000 from someone who doesn’t pay me, and if I have a 70% chance of winning my case, I certainly don’t want to invest more than $14,000 in paying my lawyer because after $14,000 my lawyer owns the claim and not me.
But this is custody of young, innocent, and impressionable children, right? No one can put a price on that. People approach child custody litigation with that mindset. Unfortunately, litigation investments often don’t pay off. Lest I seem too “compromising” in my approach, there are times when the other parent takes ridiculous positions that relate primarily to their need to “control” the custody environment. Then you can be forced to go to court. But, if you can settle on a less than ideal result and save your kids the angst of a custody trial and yourself the thousands it will cost, does defending “principle” make sense? Realize that if a custody proceeding costs $12,000 in fees, start to finish, and you win, your 18.5 additional nights cost you about $650 per night to attain. And, if the judge does not bend your way, you paid $12,000 to “take a shot” that missed.
So, is this essay better titled “Take What’s Offered and Eat —-?” No. All but the worst parents typically end up with every other weekend (often three days), a split of holidays and 2-3 weeks of summer vacation or roughly 20% of the year. There is a trend now to split summers and the winter and spring breaks. This means the typical schedule is probably closer to 30% custody for one parent. That means the sweet spot, where litigation often hangs in the balance is usually about 72 days. It’s a big chunk of time but rarely do clients ask themselves “What will I do with my additional kid time?” That’s a question often posed by judges who preside over these cases. The answers they get are often not what the lawyers expect to hear. Some parents take the combative approach. They don’t actually utter these words, but the undercurrent is: “None of your business judge, they’re my kids and I own half their time.” Another combative approach, equally ineffective is: “My additional time is time the children are not with their malignant mother/father and that’s enough.” Then we have the rocket scientist approach. “Judge I would use the additional time to teach my children quadratic equations and read to them the works of Faulkner and Erasmus. Then we would walk the Appalachian Trail.” This tack usually fails when the court asks how many Faulkner books are in the family library or where the Appalachian Trail is located.
Truth is that while we aspire to time spend with our kid’s playing tennis or studying a lunar eclipse, that’s not really what parenting is about. It’s lots of going to Michaels to get supplies for the school project and then driving through a fast food joint because we need to get to the soccer game or the third performance of “The Whiz.” It’s driving to birthday parties and the Friday night football game. If the other parent can’t or won’t support those things, you may have a sound reason to invest in a visit to your local courtroom so your kids don’t miss out. But your drive to the game or walk through Michael’s is not something worthy of litigation investment.
The other element too often ignored is the price custody litigation inflicts on your kids. Kids are wired to love both parents; even the bad ones. When kids do go to court, they are typically as closed mouthed as a diplomat at a nuclear summit. Everyone tells them they don’t belong “in the middle” but they are undeniably “in the middle.” They understand far better than their litigating parents the consequence of telling the whole truth in a courtroom or judge’s chambers. They understand that there is no rolling back what they say about the time dad forgot to pick them up from the baseball game or the time mom shouted at the umpire before throwing a cold drink on the poor guy because he missed a call. So, what often occurs is the children lie: “I don’t remember that” or “I don’t think that’s how it happened.” The judge then sees the kid failing in school and he’s asked to decide whether it’s mom’s fault or dad’s when the judge really thinks it’s because the kid is depressed by the parents’ food fight over custodial time.
This is what those of us who litigate custody see, especially when the fight goes on even though each party has substantial custodial time. Parents all tend to look at what the other parent does and think we could do better. But the cost to prove that is high in a raw dollars sense and in an emotional capital expense. For a kid, little is more depressing than conflict you can’t control and child custody litigation is by definition, conflict you can’t control unless you abstain. Again, there are times when you have to fight. There is an arithmetic benefit to having more time with kids, yet far too few clients think about the emotional and financial cost to secure what they think they should be entitled to. I have sat through many child interviews in courthouses throughout the state. Invariably, judges try to help the kids out by asking the magic wand question: “If I could fix things for you by changing the custody order what is it that you would want me to do?” The answer is all too frequently: “Make them stop fighting.”
Moral to the story: while it may be what you want and believe you deserve, you don’t need “equal” to be “good” when it comes to parenting. In the meantime ask your attorney what the fight will cost and whether the chances of doing better in court are worth the investment.
Coda: One day after this post I listened to an interview of NPR journalist Mary Louise Kelly about what it’s like raising children while working for National Public Radio and taking assignments to cover events in Pakistan, Iran, North Korea and the Ukraine. It’s a fascinating listen as she describes how she texted from Asia to her family to not forget that the family dog needed his nails clipped. At one point she asked her now 17 year old son about whether her career had harmed his childhood. His response was a long pause coupled with a “No” and a request for some money to go to Chipotle. Her analysis was that it doesn’t much matter who bakes the brownies; so long as someone provides the brownies. Not many of us can manage Kelly’s work/life balance but all of us can be inspired by it.