Modifying timeshare (custody and visitation) and asking for 50/50 split custody – bad idea

On May 7, 2012, in General Family Law, by Brent Rose

Custody cases and being pro se (without a lawyer) just don’t mix. I know we lawyers are expensive, but how much is your child’s future worth? Here is a classic mistake made by unrepresented parties when trying to modify timeshare (the more modern term for “custody” and/or “visitation”): asking for 50/50, split, or rotating timeshare. […]

Custody cases and being pro se (without a lawyer) just don’t mix. I know we lawyers are expensive, but how much is your child’s future worth?

Here is a classic mistake made by unrepresented parties when trying to modify timeshare (the more modern term for “custody” and/or “visitation”): asking for 50/50, split, or rotating timeshare. Here’s why:

Once timeshare is set, either by the judge as part of a divorce or paternity case or by the parties in a settlement agreement, timeshare is pretty much locked in. It is very difficult to change timeshare. But it can be done. The person wanting the change has to prove to the judge that there is an unexpected and substantial change in circumstance.

“Unexpected” means there was no way to know it when the judge made the decision or when the agreement was signed. “The kids are now in school” or “the kids want to be with me more” or “inflation has gone up” are bad reasons because they are all predictable. “Mom is running a meth lab in front of the kids” is a good reason, because it probably couldn’t have been predicted.

A “substantial” change is a really big change. It can’t be “Dad moved to a new house across town” or “Mom had three more kids.” These might be big life events, but to change timeshare, a judge has to see something huge, something like, “Mom’s new boyfriend is a child molester who attacked my child.”

So if something has to be that big and that bad for timeshare to change, why a person ever ask for timeshare to go to 50/50? I see people alleging, “Mom is now a prostitute, living on the streets with the kids, hooked on drugs, and the kids are flunking out of school, therefore I want the kids half the time.” Half?! And you want this disaster of a mother to have them the other half?!

Judges aren’t dumb. Everyone knows child support gets gutted as the amount of timeshare increases, and that’s exactly what they’re thinking when they see a petition like this. Another deadbeat doesn’t care about the kids and just wants to reduce child support. If something is serious enough for timeshare to change, that is, for the old agreement or judgment to be completely broken, it’s probably serious enough that the other parent should be very restricted in seeing the kids.

Bottom line: be careful in seeking modification of timeshare, but if you do seek modification, speak to lawyers like us first, and never ask for 50/50, rotating timeshare, or “split custody.”

4 Responses to “Modifying timeshare (custody and visitation) and asking for 50/50 split custody – bad idea”

  1. Phil says:

    You stated that it would be a bad idea to use “the child or children are now in school” as a reason to request the courts / judge to modify a 50/50 time share split. Although two parents may live in the same County, I’m sure there are many parents that don’t actually live in the same town as is the case between myself and my ex. About 18 months ago we were in court for a modification hearing. (Immediately following the divorce the mother had primary residence) At the conclusion of the hearing the judge awarded primary residential responsibility to me. (All in all, the ex lieing to the judge and then failing a drug test that the judge ordered probably didn’t help her case much) Any way, the judge still ordered a 50/50 split, one week on / one week off. I was in shock esp. after she lied to the judge which the judge called her out on and then failed a drug test! 50/50 split, I have primary residence of our child, but beyond that the court order doesn’t state which parents home would be used for school designation. So if child starting school is a bad excuse how exactly does it work? Unless I’m wrong a child can only be registered at school under one address, not both esp. when both parents are zoned for different schools. Is the parents address (parent w/ primary residential responsibility) automatically used for school zone designation. I have a vehicle, insurance, license, etc. where the mother has none of those. Mother works full time (finally, after 4 years!) no car, and a suspended drivers license. I don’t work, because I’m disabled and can not work (yes SSDI, incase clarification was needed) which allows me to be home for my child 7 days a week. In this situation do you feel “child starting school” Is still a bad reason for a modification of the current time sharing schedule? I can understand your many reasons for child starting school being a bad idea but you’ve also mentioned that every individual case is also different. I’d love to hear your input on this.

    Phil

  2. Brent Rose says:

    Phil,

    Right, “the child or children are now in school” is not a good reason to change timeshare. Florida law says that, for timeshare to be changed, an “unexpected” event must occur. Going to school is, obviously, expected of all children. When timeshare agreements are fashioned at the time of a divorce or paternity case, they should account–as much as humanly possible–for all general events of a child’s life (school, sports, plays, band, etc.) until that child turns 18. And, yes, “child starting school” is not a reason for modification because it’s clearly not unexpected. All kids go to school.

    In your case, since you’ve been given “primary residential care,” it sounds like your child must go to school in your zone.

  3. Camina Malaysia says:

    question, so if its a done deal, you are saying that there is nothing to be done til the child turns 18? what about chronic late dropping child off to mothers house? child not adjusting to new environment? routine schedul not being followed? are these not reasons to change time share? i’m so confused and at a loss both for myself and my child. although the father was admitted to my house everyday from 6:30pm to 8pm, the father chose not to always be there to see his son. when we went to mediation not only did he lie about how much he makes (self employed), but well lets just say that meeting was horrible, there was not choice in the matter of time share, it was told to me what was going to be. that very weekend father had my son overnight. (my son was never alone with him before) it took four hours to get my son in his fathers truck and that was only because he was crying himself to sleep) but all this has been for the best interest for my son? my son leaving the house to find me when I am not there (that was scary), the nightmares, the not wanting to let go. this has all changed my son from his happy go lucky self, to aggressive, cursing like his father (that’s nice hearing from my two year old), he’s just not the same anymore, not wanting to potty train, he used to love the games we played to potty, now lies about going and does not want to be changed. so what do I do then? anything at all? or nothing at all? I keep praying someone will read my file and see the wrong in all this. I even wrote a letter to the judge outlining the mediation. but all I received back was a letter stating it is unlawful to write directly to the judge. what to do? please advise. I’m an emotional wreck seeking any advise.

  4. Brent Rose says:

    Camina,

    Either I’m a bad writer or you are. You seem to think I wrote that you can’t win, so don’t try. That’s not at all what I wrote. All I said was, judges don’t grant 50/50, so don’t ask. It makes no sense to say, “the other parent is awful, so give that parent half the time with the kids.” I said to say, “The other parent is awful, so give that parent almost no time with the kids.”

    If you try to kill the king, you better kill the king.

    Brent

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