Skip to main content

Will court give a father 50% physical custody? Spouse agrees to 50/50 Legal but not Physical

San Jose, CA |

Father is asking for 50% legal and Physical custody. The wife is adamant on not giving 50% physical - only reason i can think of is custody payment she will receive. Father is a stand-up citizen with no priors nor any abuse in this 14 year marriage. 2 children 14yo son and 9 yo daughter

We were settling this out of court through a paralegal service but now stuck and frustrated because of this. Should I pursue this in court - will i get 50% physical ? can i get a fair deal?

Attorney Answers 4

Posted

If the parties can't come to a mutually acceptable agreement, the court will order whatever the court feels is in the children's best interest. While the default arrangement is for the parents to have equal time (especially where infants are not involved), this is not universally applied, since every child could potentially have their unique needs and every parent their unique flaws or challenges.

If you can't agree between yourselves, why not try mediation? This is what the court would order you to do anyway, and if you come to an agreement at mediation that you can both live with, then this is better than having a stranger (i.e. the judge) dictate the arrangements for you.

Again, to be clear: The court would order you to mediation, so why not give it a try on your own initiate?

Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.

Mark as helpful

2 found this helpful

3 lawyers agree

1 comment

Asker

Posted

Hi David, Thank you for responding! We used Priority One paralegal services and I believe they are now getting to the agreement part and will soon find out that we are not able to reach one - where i believe they will send us for next.

Posted

It is possible that the court will give a father 50% physical custody of the children. The court will look at the facts, review the mediator's report, and make a determination regarding what is in the best interest of the children. A good portion of the decision may depend on who historically has spend the majority of time nurturing and raising the children in the past.

If you have found this information helpful, please let the attorney know by marking best answer. Thank you. This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client relationship by providing said information to you on this site. Nothing contained herein is intended to constitute, offer, induce, promise, or contract of any kind. The content provided is presented as a courtesy to be used only for informational purposes and is not represented to be error free. The Law Offices of John N. Kitta makes no representations or warranties of any kind with respect to its answer to inquiries, and such representations and warranties are being expressly disclaimed. Given limited facts, we are attempting to share relevant information concerning this area of the law as a public service.

Mark as helpful

2 found this helpful

2 lawyers agree

4 comments

Asker

Posted

Thanks John. Would children ever be interviewed by court and/or mediators? 14yo and 9yo

John Noah Kitta

John Noah Kitta

Posted

It is very, very rare that the Judge would actually speak with the children. You would need to request to the mediator to set up a separate mediation appointment with the children. This is probably the only way you can get the children's input into the mediator's report, which will be read by the Judge prior to the hearing. The Judge has an obligation to be aware of a child's feelings if they are at an age to formulate a reasonable opinion. In the past, it has been as young as age 7; but usually, when a child is age 12 and over, the courts tend to pay more attention to their thoughts.

Asker

Posted

John, This was very helpful! One quick question - Now that Priority One has filed and an agreement is being crafted (which i disagree on) we may end up in mediation ordered by Priority One and agreement has not reached then we end up in court. I am assuming that's the procedure here.

John Noah Kitta

John Noah Kitta

Posted

If you are interested in reaching an agreement in mediation, the mediator will give a written report to the Judge with a recommendation. Generally, the court will adopt the mediator’s recommendation about 90% of the time. I hope this is helpful.

Posted

The other answers are good. I would add that if you want to have a lot of time with your kids, it will be helpful to focus not on the percentage, but on the actual time share plan. Get a calendar and mark out times when it will make sense for your kids to be with you and when they should be with the other parent and see how you can maximize your time. When you focus on the timeshare percentage, it sounds to the attorneys, mediators, and the judges like you are focused on minimizing your support obligation.

The answer above does not constitute legal advise and is not based on any confidential information provided by the poster. Each situation is specific in nature and any answer offered is based only upon the information provided by the poster; the attorney does not warrant the answer is applicable to the poster's situation. This answer does not create an attorney-client relationship.

Mark as helpful

2 found this helpful

2 lawyers agree

2 comments

Asker

Posted

Ahh..makes a lot of sense. Sarah, tell me this - when reviewing the paperwork, I don't see "timeshare" as a category unless i am missing something.

Sarah Victoria Cottingham

Sarah Victoria Cottingham

Posted

I meant parenting plan--i.e. what days your kids are with you and the other parent. Your request would go anywhere on the forms where you can check a box for the custody or visitation schedule. You can attach a page to describe the arrangement you want. The timeshare percentage is determined by the schedule.

Posted

You may want to consider consulting with a family law attorney on a limited scope basis in lieu of a paralegal service since you are stuck and frustrated. Parenting plans need to make sense for all of the parties. If it is appropriate in your case, then 50-50 should be your goal. Your wife will need to tell you and the court why she is adamant on not giving you 50%. You state that the only reason you can think of is custody payment/child support. Don't think and guess why she feels this way, because you need to find out. The judge is going to want to know. Many people don't want to agree to 50% due to money, and this situation comes up frequently in custody cases. You will need a strong declaration to the court articulating why the court should order a 50% or whatever plan you believe is in the best interest of the children.

www.JoeTorriLaw.com

This communication does not create an attorney-client relationship. This means that I am not your lawyer and I will not appear in court simply by posting on this site. If you would like me to represent you, you must call my office, sign a written fee agreement and pay a legal fee, assuming I do not have a conflict of interest and you are in Southern California. If I respond to your question and you have follow up questions by posting on this site, I may or may not reply. This information should not be construed as legal advice. I am offering my opinion. Each person's case is unique, and that's why you should contact a lawyer over the phone for a consultation for your situation. That's why you should not rely on any response that an attorney posts on this site. I am licensed in California. I am not licensed in another state or country. I do not practice law outside of California.

Mark as helpful

1 found this helpful

1 lawyer agrees

Family law topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics