You and your child's other parent have just split up. Are you automatically entitled to have 50% custody of your child? The short answer: No. Neither parent is entitled to any particular custody schedule or timeshare of a minor child.

Instead, the court will look at what is in the “best interest of the child” when determining the custody schedule. Family Code sections 3011, 3020, and 3040 lay out the guidelines for these considerations, but ultimately there is wide discretion to choose a parenting plan that is in the child's best interest. The court considers a number of factors when determining a child's best interest, including but not limited to: the health/safety/welfare of the child, any history of abuse (either to the child or within the household), the nature and amount of contact with both parents, and any habitual and continued abuse of alcohol as well as illegal or controlled substances among a parent.

Courts do not set custody schedules to “punish” or “reward” either parent, rather, the court considers only what will be good for the child. This means that a parent might get less than 50% custody even though they've done nothing “wrong.” To the extent that both parents are able to split custody equally and provide for the minor child physically and emotionally, while taking into consideration the child's educational and health needs, then an equal timeshare is more likely.

When determining a custody schedule, the court is NOT allowed to consider such factors as the immigration status of either parent or the sex, gender identity, gender expression, or sexual orientation of a parent.

Parents can work together to create a schedule that they believe works for their family and their child/children. In the event that parents do not agree on a custody schedule, you can ask for the court's intervention to make those orders.

Whether you have created a custody schedule with the other parent and need it written into a court order, or can't work it out and need to ask the court to set a custody schedule for you, the Law Office of Rochelle Binns can help. Contact me today for your free consultation.