It wouldn’t be a legislative session in Austin without someone trying to remake family law in Texas! This year, there was a bill introduced by an East Texas legislator, Rep. James White, calling for equal custody for both parents in a divorce case.
Adopting this bill (which, by the way, didn’t get out of its House Committee) would have been a departure from the current Texas Family Code. Currently, a court typically awards a majority of parenting time to the custodial parent during the school year, and provides opportunities for the non-custodial parent to get blocks of time with the children during the summer.
Under this proposed plan, one parent could get no more than five days more with his or her children during the entire year than the other parent gets. If one parent got 185 days with the children and the other parent got 180 days, that would be acceptable under this bill. But if one got 186 and the other got just 179, that would not pass muster.
On the surface, equal custody looks like a great idea. It’s important for children to spend time with each parent, be it a mom and a dad, two moms, or two dads. Having a system that had equal parenting time as the standing order, rather than the existing model, might make us rethink the role of parents in divorce.
But this law makes a big assumption that a family code shouldn’t make. It assumes a one-size-fits-all model for parenting, mandating that equal parenting time be the law for all parents.
When parents opt for equal parenting time in their plans, the easiest way to do it is a week-on, week-off schedule. While that makes sense for the parents who are trying to keep a schedule straight, it can throw kids off their routine.
Let’s say Susie has an after-school activity on Tuesday that ends at 4:30. Maybe Dad is able to pick her up right at 4:30, but Mom works until 5. On alternating Tuesdays, Susie is staying later waiting for Mom to pick her up. If Dad had parenting time with Susie every Tuesday, they could avoid that situation, and they could certainly negotiate among themselves to adjust for that after-school activity.
But if there’s a law mandating equal custody and one parent decides to strictly stay with the court-ordered mandate–which sometimes happens when exes have disputes–it can result in less flexibility for parents and more disruption for the kids.
The current standing orders might not be perfect for all parents, but it does attempt to factor in minimizing the disruption to children’s routines as they go between their parents’ houses. An equal custody law, while it might be aiming for fairness, reveals something that proves to be true time and time again in family law. Just because something is equal doesn’t mean it’s fair or it’s best for all concerned. The best parenting plan is one that factors the children’s needs in first and takes the parents’ lives and schedules into account.