How Does a California Court Determine a Parenting Schedule?One of the first questions parents ask me in a child custody consultation is:
“What parenting schedule is the judge going to order?”
Sometimes a parent wants 50/50 custody. Sometimes one parent believes alternating weekends is appropriate. Other parents agree that the children should spend substantial time with both parents but disagree about what the schedule should actually look like.
Should they alternate weeks?
Use a 2-2-3 schedule?
A 2-2-5-5 schedule?
Should one parent have the school week and the other have alternating weekends?
There is no standard California parenting schedule that applies to every family.
California does not automatically require 50/50 custody. Fathers are not automatically limited to alternating weekends. Mothers do not automatically receive primary physical custody.
The family court has broad discretion to establish a parenting plan based upon the best interest of the particular child. California law does not establish a general preference or presumption for a particular custody arrangement between parents. C Custody Awards Generally
After nearly three decades practicing California family law, I generally start somewhere much more practical than percentages.
How old are the children?
Where does each parent live?
How far apart are the parents?
Where do the children go to school?
What are the parents’ work schedules?
What has each parent’s role in the children’s lives actually been?
How will transportation work?
What activities do the children have?
Are there legitimate safety concerns?
And there is another important question:
Are we establishing custody for the first time, or are we asking the court to change an existing custody arrangement?
Those questions usually tell me much more than simply saying:
“I want 50/50 custody.”
This distinction matters.
If the court is establishing custody for the first time, we are trying to develop a parenting plan that works for the child going forward.
There may already be a history of how the parents divided responsibility before and after separation. That history can certainly be relevant. But we are not necessarily starting with an established final custody order that one parent is asking the court to modify.
If there is already an established custody arrangement, the analysis can be different.
California courts place substantial importance on continuity and stability in established custody arrangements. The California Supreme Court has emphasized the importance of avoiding unnecessary disruption of established patterns of care and emotional bonds. Marriage of Burgess (1996) 13 Cal.4th 25, 32–33; Marriage of LaMusga (2004) 32 Cal.4th 1072, 1093. C Custody Awards Generally
Depending upon the existing order and the change being requested, additional rules governing custody modifications may apply.
For an initial custody determination, however, I generally start by looking at what schedule actually makes sense for the child.
No.
There is no general California rule requiring judges to divide parenting time exactly equally.
California does have a policy favoring frequent and continuing contact with both parents when that is consistent with the child’s health, safety and welfare.
But that policy does not require a particular mathematical division of time.
The California Supreme Court has explained that the policy favoring frequent and continuing contact does not restrict the family court’s broad discretion to determine what custody arrangement actually serves the child’s best interest.
Family Code section 3040 likewise establishes no general preference or presumption for a particular custody arrangement between the parents. C Custody Awards Generally
So I generally would not begin the analysis by asking:
“How do we get exactly 50%?”
I would begin with:
“What schedule actually works for this child?”
Not necessarily.
Family Code section 3004 describes joint physical custody as each parent having significant periods of physical custody in a manner that assures the child frequent and continuing contact with both parents.
That does not require an exactly equal division of the child’s time. C Custody Awards Generally
This is an important distinction.
Parents sometimes become fixated on percentages.
48%.
50%.
52%.
But children do not experience custody as a percentage.
They experience where they wake up Monday morning, who takes them to school, whether they can get to soccer practice, whether their homework gets done, how long they spend in the car and how often they have to pack a bag and change homes.
The schedule has to work in real life.
This is one of the first practical questions I ask.
Where does Mother live?
Where does Father live?
Where does the child go to school or daycare?
How long is the drive between the parents’ homes?
A 50/50 parenting arrangement between parents who live five minutes apart is a very different proposition from the same arrangement when the parents live 45 or 60 minutes apart.
Distance affects almost everything:
It is easy to make a calendar say 50/50.
It is harder to make that calendar work at 7:30 on a Tuesday morning when the child has to get to school.
School is often one of the anchors of a workable parenting schedule.
If both parents live reasonably close to the school, there may be several practical options.
If one parent lives close to the school and the other lives a substantial distance away, transportation may become a significant issue.
I want to know:
Who can get the child to school on time?
Who can pick the child up?
What happens on minimum days?
Where will homework be completed?
How does the proposed schedule affect attendance and morning routines?
As children get older, their lives increasingly revolve around school.
The parenting plan should account for that reality.
Most parents work.
Having a job does not make someone a less appropriate parent.
But when we are constructing a parenting schedule, we need to know when each parent is actually available.
What time does each parent begin work?
What time do they get home?
Does either parent work nights?
Weekends?
Does one parent travel extensively?
Does either parent have a particularly flexible schedule?
Who can handle school drop-offs and pickups?
What childcare would be required under each proposed arrangement?
A parenting plan should be something the parents can actually exercise.
Age matters.
There is no reason to assume that the same parenting schedule is appropriate for a two-year-old and a sixteen-year-old.
Younger children may have very different developmental needs and may respond differently to lengthy separations or frequent transitions.
School-age children have school, homework, sports and activities.
Teenagers have increasingly independent lives. They have friends, school activities, sports and eventually jobs.
The older the child becomes, the less realistic it can be to design a parenting schedule as though the child’s only obligation is moving between Mother’s house and Father’s house.
The schedule has to fit the child’s life.
Even when the court is making an initial custody order, the family’s history can matter.
Who has been caring for the child?
Who gets the child ready for school?
Who attends parent-teacher conferences?
Who handles homework?
Who takes the child to medical and dental appointments?
Who attends practices and activities?
What relationship does the child have with each parent?
These questions are not about awarding a prize to whichever parent can prove they changed more diapers.
They help establish how the family has actually functioned and what parenting arrangement may realistically serve the child going forward.
Not necessarily.
Parents sometimes separate and operate under an informal parenting arrangement for weeks or months before either one asks the court for custody orders.
That history can be relevant evidence.
But an informal arrangement should not automatically be confused with the rules governing modification of an established final custody order.
When making an initial custody determination, the court has broad discretion to establish the parenting arrangement that serves the child’s best interest.
Once a stable custody arrangement has become established, continuity and stability can assume greater importance. C Custody Awards Generally
That distinction is important.
A 2-2-3 schedule is one way parents can divide substantial parenting time.
Generally, the child spends:
Two days with Parent A.
Two days with Parent B.
Three days with Parent A.
The arrangement then reverses the following week.
One advantage is frequent contact with both parents.
The disadvantage is also obvious:
There are a lot of transitions.
For parents who live close together and can cooperate reasonably well, that may be manageable.
For high-conflict parents, repeated exchanges can create repeated opportunities for conflict.
The child’s age and ability to handle transitions also matter.
California law does not favor a 2-2-3 schedule. It is simply one possible parenting plan.
A 2-2-5-5 schedule can provide more consistency during the school week.
For example, one parent might always have Monday and Tuesday. The other parent always has Wednesday and Thursday. The parents then alternate the remaining portion of the week, creating alternating five-day blocks.
Some parents prefer this because the child always knows where they will be on particular weekdays.
That can also make recurring activities easier to manage.
Again, there is no California rule preferring this arrangement.
It is simply another possible schedule.
Alternating weeks can reduce the number of exchanges.
Instead of moving between homes every two or three days, the child spends an entire week with each parent.
For some children and families, that works very well.
For others, seven days away from the other parent may be difficult.
Age matters.
Distance matters.
School matters.
The parents’ work schedules matter.
The child’s activities matter.
There is little value in selecting alternating weeks simply because the resulting timeshare is mathematically equal if the schedule does not work for the child.
Alternating weekends remain common when one parent has substantially more of the school-week parenting responsibility.
But “alternating weekends” is not a complete parenting plan.
When does the weekend begin?
Friday after school?
Friday evening?
When does it end?
Sunday evening?
Monday morning at school?
Is there a midweek dinner?
A midweek overnight?
How are three-day weekends handled?
Those details can materially affect both the child and the amount of parenting time.
An alternating-weekend arrangement also does not necessarily constitute joint physical custody.
The Practice Guide cites Marriage of Biallas (1998) 65 Cal.App.4th 755, where alternate Friday-to-Monday weekends plus one night each week did not constitute true joint physical custody. C Custody Awards Generally
That distinction can become particularly important later if one parent seeks to move away with the child.
More important than many parents realize.
The California Family Law Practice Guide specifically identifies the parents’ ability to cooperate in transferring the child between their respective residences as a practical consideration in shared parenting. D Joint Custody
If every exchange becomes an argument, the child experiences that conflict.
One solution I often prefer, when practical, is using school as the exchange point.
Parent A takes the child to school.
Parent B picks the child up.
The parents do not even have to see each other.
That does not work in every case, but it illustrates a larger point:
A good parenting plan should reduce opportunities for unnecessary conflict.
Yes.
Children have lives outside their parents’ custody case.
The Practice Guide specifically identifies extracurricular activities, sports, lessons and hobbies as practical considerations that may need to be accommodated in a shared parenting arrangement. D Joint Custody
As children get older, this becomes increasingly important.
A child should not necessarily have to quit soccer because practice occurs during one parent’s custodial time.
A teenager should not have to abandon ordinary school activities because the parenting schedule was designed years earlier and never adapted to the child’s changing life.
The child’s schedule matters too.
Yes, particularly with highly integrated shared-parenting arrangements.
The Practice Guide explains that successful joint physical custody depends more upon the quality of the parenting relationship—the parents’ ability to share parenting responsibilities and cooperate for the child’s benefit—than upon any particular mathematical allocation of time. D Joint Custody
That does not mean divorced or separated parents have to like each other.
They do not have to be friends.
They do not have to spend holidays together.
They do need to be able to implement the parenting plan without making the child the battleground.
High conflict does not automatically mean one parent should have minimal parenting time.
But high-conflict families often need more detailed orders.
Instead of:
“Parents shall share holidays by agreement,”
the order may need to say exactly who has Thanksgiving in odd years and even years.
Instead of:
“Parents shall agree upon exchanges,”
the order may need a specific exchange time and location.
A detailed parenting plan may address:
Sometimes the best way to reduce conflict is to reduce the number of things the parents have to negotiate.
Generally, maintaining sibling relationships is important.
The Practice Guide explains that California public policy favors preserving sibling bonds when possible and that separating siblings ordinarily requires compelling circumstances, such as extraordinary emotional, medical or educational needs. C Custody Awards Generally
There can certainly be circumstances where different schedules are appropriate.
A sixteen-year-old and a three-year-old may have very different needs.
But separating siblings should not be treated casually.
Yes, potentially dramatically.
California’s policy favoring frequent and continuing contact with both parents is subordinate to the child’s health, safety and welfare.
Family Code section 3044 also creates a rebuttable presumption against awarding sole or joint legal or physical custody to a parent found to have perpetrated qualifying domestic violence within the statutory period.
The policy favoring frequent and continuing contact cannot be used to rebut the section 3044 presumption. C Custody Awards Generally
A domestic-violence case therefore should not be analyzed as though it were simply an ordinary disagreement over whether the parents should use a 2-2-3 or alternating-week schedule.
Safety comes first.
Legitimate safety concerns can significantly affect the parenting plan.
Depending upon the evidence, the court may need to consider whether parenting time should be:
The child’s health, safety and welfare remain the court’s primary concern.
An equal percentage is not more important than safety.
Not by itself.
Depending upon the child’s age and maturity, the child’s wishes can become relevant.
But the child does not simply dictate the parenting schedule.
The court still determines what arrangement is in the child’s best interest.
Parents should also be extremely careful about putting children in the middle of a custody dispute or making them feel responsible for choosing between their parents.
Then I start asking a different set of questions.
How long has the order been in place?
Is it a final custody determination?
What has actually happened under the order?
How is the child doing?
What change is being requested?
Is the parent asking merely to adjust parenting time, or would the requested change effectively alter custody?
California law places substantial importance on stability and continuity once a custody arrangement has become established. C Custody Awards Generally
The applicable legal standard can also depend upon the nature of the existing order and the requested modification.
For example, the Practice Guide explains that a change to parenting or visitation time that does not amount to a change between joint and sole custody may be determined under the child’s best-interest standard without requiring a showing of changed circumstances. Marriage of Lucio (2008) 161 Cal.App.4th 1068; Marriage of Birnbaum (1989) 211 Cal.App.3d 1508. C Custody Awards Generally
A significant custody modification can present a different issue.
That is why an initial custody determination and a later custody modification should not be treated as the same case.
Start with the child’s actual life rather than a percentage.
I would want answers to questions such as:
Then we can start constructing the schedule.
That approach is far more useful than beginning with:
“I am entitled to 50%.”
No. California does not have a general presumption requiring equal parenting time. The court determines the parenting arrangement according to the child’s best interest.
The court applies the child’s best-interest standard. Practical considerations can include the child’s age, where the parents live, school, transportation, the parents’ work schedules and availability, the history of parental involvement, activities, sibling relationships, safety and other circumstances affecting the child.
No. Joint physical custody involves significant periods of physical custody with each parent. It does not require a mathematically equal division of time. C Custody Awards Generally
California does not establish a single mileage limit in the research reviewed for this article. The practical question is whether the proposed arrangement serves the child’s best interest considering school, transportation, activities and the other circumstances of the case.
A 2-2-3 schedule is a shared parenting arrangement in which the child generally spends two days with one parent, two days with the other parent, and three days with the first parent. The schedule reverses the following week.
It provides frequent contact with both parents but also involves frequent transitions.
A 2-2-5-5 schedule generally gives each parent the same two weekdays each week while alternating the remaining days, creating alternating five-day blocks.
For some families, the consistent weekdays make school, activities and childcare easier to manage.
Yes. Alternating weeks can be used as a parenting arrangement.
California law does not specifically prefer week-on/week-off custody. Whether it is appropriate depends upon the child’s best interest and the circumstances of the family.
It can matter considerably.
The farther apart the parents live, the more difficult frequent exchanges may become. Distance can affect school transportation, morning routines, extracurricular activities, friendships and the amount of time the child spends traveling between homes.
There is no single mileage rule that determines whether shared custody is appropriate.
Yes.
The court can consider the practical circumstances affecting the child when determining a workable parenting plan.
A parent’s employment does not make that parent less deserving of custody. But a proposed parenting schedule should realistically account for each parent’s availability, school transportation and necessary childcare.
Not necessarily.
The legal characterization depends upon the actual custodial arrangement rather than simply the label used by the parents.
Marriage of Biallas is an example where alternate Friday-to-Monday weekends plus one night each week did not amount to true joint physical custody. C Custody Awards Generally
The family’s parenting history can be relevant, but an informal arrangement before the initial custody determination is not necessarily the same as an established final custody order.
On an initial determination, the court has broad discretion to establish a parenting plan based upon the child’s best interest.
That can change the analysis.
Stability and continuity become particularly important once a custody arrangement has been established. Depending upon the existing order and the requested change, the parent seeking modification may also have to satisfy additional legal requirements. C Custody Awards Generally
Yes.
Children’s circumstances change. School, activities, transportation, developmental needs and the parents’ circumstances can all change over time.
However, the legal standard for changing an existing order depends upon the nature of the existing custody determination and the modification being requested.
Custody litigation can become overly focused on numbers.
Parents talk about 50/50.
60/40.
Every other weekend.
Three overnights versus four.
Those numbers certainly can matter. Parenting time can have legal and financial consequences, and the amount of actual custodial responsibility can become particularly important in later disputes such as move-away cases.
But percentages should not be the starting point for designing a parenting plan.
The starting point should be the child.
Where does the child go to school?
How old is the child?
How far apart do the parents live?
What are the parents’ work schedules?
What activities does the child have?
How will transportation work?
How many exchanges will the schedule create?
Can the parents implement those exchanges without exposing the child to conflict?
What has each parent’s involvement actually been?
Are there legitimate safety concerns?
A schedule that answers those questions is much more useful than one designed simply to produce a particular percentage.
California law recognizes this distinction. Joint physical custody turns on meaningful periods of custodial responsibility and frequent and continuing contact, not necessarily an equal division of every hour of the child’s life. C Custody Awards Generally
There is no perfect parenting schedule for every California family.
A 2-2-3 schedule may work extremely well for one child and terribly for another.
Alternating weeks may reduce transitions for one family but create too much separation for another.
Alternating weekends may be appropriate in one case and inadequate in another.
Parents who live five minutes apart have options that may simply be impractical for parents who live an hour apart.
And the schedule that works for a four-year-old may no longer make sense when that child is fourteen.
The family court is not supposed to choose a parenting schedule because it has an attractive percentage attached to it.
The court is supposed to determine what arrangement serves the child’s best interest.
That is also how I approach these cases.
Before deciding what schedule to request, I want to understand the child’s actual life, the parents’ circumstances, the geography, the school schedule, the history of parental involvement and the areas of conflict.
Then we can propose a parenting plan that makes sense.
The parenting schedule is often the part of a custody order that affects a family most directly.
It determines school nights, weekends, holidays, vacations, exchanges and how a child divides everyday life between two households.
And the analysis can be very different depending upon whether the court is establishing custody for the first time or one parent is asking to change an established custody arrangement.
Edgar & Dow represents parents in contested child custody matters throughout Riverside County, San Bernardino County and Southern California.
If you are establishing a parenting schedule for the first time, seeking a shared parenting arrangement, or dealing with an existing schedule that is no longer working, contact Edgar & Dow to schedule a consultation. We can evaluate the child’s circumstances, the parents’ availability, the geography, the existing custody orders and the practical issues that should be addressed in a workable parenting plan.
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