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Family Law Blog

Child Custody and Timeshare

November 30, 2022

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Oftentimes people come in and they ask that they want to get as much child time as possible. They want to get the largest child timeshare as they possibly can because they know that the more time they have, the less child support they have to pay. We always tell them, we need to stay away from the percentages. Stay away from numbers. Let’s talk about the actual schedule that makes sense for the child.

Perfect example: mom stays at home mom, and she’s got all the time in the world. She doesn’t leave the house unless she’s taking the kids to school, picking the kids up from school, going to the grocery store, going to the doctor, whatever she needs to do. If that’s the only time she’s leaving the house, she’s got all the time in the world for the children. That’s how a judge is going to look at it. And let’s say her husband is a doctor who works 65 or 70 hours a week. He leaves at six in the morning before the kids even get up for school, and he comes home at seven or eight o’clock at night after he gets done doing his rounds. Now, let’s say those two parents split up and now mom is living in the family home and dad goes out somewhere else, but he’s still working 70 hours a week and he’s working six days a week. How do you think a judge is going to divide that timeshare? The dad is probably only going to get Sundays each week when he has off work. Why? Because a judge is not going to give dad 30% timeshare when dad is just gonna turn around and put the child in daycare or have a babysitter watching the child while the child is at dad’s house while mom is sitting on the couch at home watching tv. If mom’s available to watch the kid, a parent is almost always a much better caregiver to a child than a babysitter.

That is mostly true even if the babysitter is a family member, a sister, a brother, a mother, a daughter.

If the mother of the child is available and the other parent is not available, the mother is very likely to get that custodial time. Oftentimes parents will come to us and they’ll say, I want Joint Physical Custody. And they fight and fight and fight for Joint Physical Custody, but they only end up getting every other weekend and a dinner visit once a week. So that timeshare is only about 15%. If you have 15% timeshare, you only have Visitation, you do not have joint custody. In California, case law suggests that 30% or more is Joint Physical Custody. So if you have 25% timeshare, then you only have Visitation. That’s a very important thing to remember. Now, let me go a step further. Let’s say we go to court and we have a custody battle and father ends up with a 25% timeshare. And I can tell you 25% timeshare might be every other weekend, one night during the week, two weeks of vacation time in the summer, half the Christmas holiday, and you still only end up with 25, 27, 28% of timeshare, which means you do not have joint physical custody, per se, under the law. So then after that happens we start writing up the order and dad says, “I want it to read joint physical custody.” Even if we put in the order Joint Physical Custody, he still does not have Joint Physical Custody under the law. He still only has Visitation even if it says Joint Physical Custody, because the percentage of timeshare that you have dictates whether you have Joint Physical Custody or not.

Just as a side note, that percentage of time, whether you have Joint Physical Custody or mother has Sole Physical Custody and you have Visitation, that is a very important issue when it comes to a couple of other issues that come up in Family Law. One of which is a Move-Away case. If a parent with sole Physical Custody wants to move away, you need to understand that they have a presumptive right to move. That is a very, very big deal. So if you’re fighting for custody and you want more time, you always want to try to get 30% of time or more.

Another issue under Custody is who gets the time that the child is in school under their custodial time? Does it automatically go to mother if mother has the larger timeshare? The answer to that is no, not automatically. And here is the problem. There are two different cases in California that have two different answers to this question. One of the cases says that the time that the children are in school goes to the parent who drops the child off at school. That could be very bad for the other parent who works full-time and leaves for work early in the morning, and then let’s say the other parent then drops the child off every single day for school.

However, that’s only one of the answers.

Another case in California says that the time that the children are in school, that percentage of timeshare goes to the parent that the school is more likely to call to take care of the child if there’s an emergency during the school day. So what does that mean? That means if the child gets sick or slips and falls and gets injured or anything happens at school and the school has to call one of the parents because there’s an emergency at school or because the child gets sick at school and needs to go home. Let’s say that person that’s available is dad because dad works from home and mom is a nurse and works, you know, 10 hour days at the hospital. If the person that would normally take care of that child in an emergency is dad because he can leave his computer and go pick up the children at school in an emergency, then that case says that dad should have that timeshare.

Let me give you a problem. Let’s say for example, the same facts apply, but let’s say mom on the way to the hospital, she has to show up for work at eight o’clock in the morning. So on the way to the hospital, mom drops the children at school every single day. But dad works from home and he’s the parent that the school would call for an emergency. Who gets that timeshare of the children in school? The answer is, I don’t know. The answer is this is exactly why you need to hire an attorney with a tremendous amount of experience, because there’s gonna be a million other little tiny factors that go into arguing this issue because there’s two cases that say the exact opposite. One case says, mom should get that time. The other case says, dad should get that time. So make sure if you’re going into court for any reason, you make sure you hire an attorney with a tremendous amount of experience to help you with these kinds of subtle issues.

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