What Are My Chances of 50/50 Residence?

Q.

I currently have my son 3 nights a week and this has been the arrangement that my ex told me I was allowed. I work a 4 on, 4 off shift system so my weeks are 8 days. Ideally, I want to share our son 50/50 but was told by her that I should think myself lucky as most dads don't have their children anywhere near as much. Is it right that I have no hope of 50/50 custody?

A.

I can entirely sympathise with your predicament. This may not be what you want to hear, but you do have a lot more contact with your son than most separated dads. There is no legal minimum or maximum where Custody Is Shared, as each case depends on its particular facts. In all cases, however, the court will be primarily focused on the child’s best interests. You haven’t said whether you and your ex were married or not, so all I can advise you on is if you were to make a freestanding application to the Family Court to try to enforce your right to an extra half a day a week.

If You Go To Court

Of course, you will be able to judge your ex’s potential reaction to a family court case better than I can. What would she do if you told her you were taking her to court over the extra half day? This is a judgment call for you. At the moment, your custody is shared 43/57 – and while every moment with your son is extremely precious, would there be a possibility that your ex could make things a lot more difficult than they are now? I don’t know how old your son is, but what effect could his parents going to court have on him? Forgive me if I’m way off the mark here, but it seems to me as though you’re very angry that your ex has control of the situation – i.e. that she has dictated how much time you spend with your son, rather than it being a joint decision between two parents (and I can understand why you would feel this way).

The Court’s Decision

If you were to make an application to the family court, the judge or magistrate would look at what was best for your son. This doesn’t necessarily accord with what either you or your ex wants. The court would look at both you and your ex as equals, and decide what to do about custody based on the evidence put before it. Although it used to be quite rare, courts are increasingly prepared to grant shared custody. What they are looking for is whether you and your ex can get along for the benefit of your child, and, in terms of practicality, if you live close enough to one another and the distance to your child’s school.

Another option would be to look at Mediation, which would mean that the decision would remain you and your ex’s to make rather than at the discretion of a third party. If you went to court, there is always the chance that the court could direct that you had less of a share of the custody of your son, rather than more. I wish you the best of luck with whatever you decide.