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50/50 Custody vs. Actual Time Spend

San Jose, CA |

On the initial order, the court ordered 50/50 custody. One party is delivering 40% due to 'work obligation' and need to travel. Would the court adjust the time share arrangement after 3 months review cycle to reflect actual time? The travel party is now trying to ask for 'make up' right due to the 'work obligation'. How would the court response to this 'make up' request?

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Attorney answers 3


You may not want to formally change the order through the court after only three months. A written order creates a baseline of legal rights but the parties are free to adjust and that may be your best course.

There are a few issues in your question that you might want to discuss with a family law attorney. These cases can be very specific to each family and you should not rely on a general non-confidential opinion.

Good luck.

The advice provided is general in nature and is not based on any confidential communication or information provided by the requesting party. To receive complete and specific legal advice you should consult personally with an attorney in your area.


unless it is written into the orders, you are not required to allow the other party to make up time. I caution you here, though. Courts like to see the children spend as much time with each parent as possible, and do not like to see spiteful decisions being made that effect their time with either party.

If you aren't already, keep a calender/diary of times when the other party does not utilize their time with the children. That is your proof to the court, instead of your word against theirs. After a period of time has passed, and 3 months may be sufficient (depending on the judge), you can file an Order to Show Cause to change the percentage. That will effect the amount of child support being paid, and possibly the ability to claim the children as dependents on taxes.

I hope this information helps.


Most times, in your circumstances, the court would adjust the timeshare arrangement after three months from the 50/50 to a 60/40. The real test would be how convincing your ex could be in regard to his proclamation that from now on and in the future he will maintain the 50/50 timeshare. For the court to order make-up time would certainly be the exception and not the rule. Generally, this approach would be disfavored by the court. Whatever you do though, make sure and maintain records of the actual time each of you spend with the child. Additionally, maintain records of all your communications and correspondence with your ex concerning all these custody/visitation issues.

John N.Kitta
Fremont Family Law Attorney