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50/50 Custody

Is it a Myth?
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A first-of-its-kind study performed by Custody Xchange ( found that parenting time varies dramatically as one crosses state lines. Nationwide, a father is likely to receive about 35 percent of child custody time, far from the goal of equality most fathers desire .

“Bottom line, their study showed that, nationally, a father is likely to receive on average 35 percent of time with a child by court order,” says Michelle May O’Neil, partner with O’Neil Wysocki Family Law. “Interestingly, 40 percent of states start with a 50/50 model for parenting time. For example, Florida has a 48-hours-on and 48-hours-off plan. Contrast this with Tennessee, scoring last of the 50 states, where a father is likely to receive about 21.8 percent of time with a child. In Tennessee, a father will likely receive a  48-hour Friday to Sunday period twice a month. This translates to about 183 days for dad in an equal time state, like Florida, compared to Tennessee, which gives an average of 80 days a year. That is a 100 day per year difference depending on the state lived in!”

According to the study, Texas scored close to the average, with fathers receiving about 33 percent of the child’s time. Says O’Neil, “It was interesting to note that when the 20 states that provide a start of 50/50 are eliminated from the study, Texas scored close to the top for providing time for fathers compared with other states that do not provide equal time.”

Last year, 20 states, including Texas, considered laws to make equal or shared co-parenting the presumed standard even over objection of one or both parents. Texas did not pass its proposed law, but it is expected that another similar law will be filed in the upcoming 2019 session. Shared parenting, advocates say, replaces the “winner take all” attitude of custody cases. In one model, two parents enter a courtroom and at the end, one leaves a parent and the other leaves a visitor,” O’Neil says. “In the other model, both remain parents even after the breakup of the relationship.”

According to O’Neil, the visiting parent model came from old notions that mothers were better primary caretakers of children, diminishing the father’s role. The tide began to change in the late 1960s and early 1970s as women joined the workforce and roles at home began to change. The “tender years doctrine” favoring mothers has been replaced with a gender-neutral “best interest of the child” standard. Even so, many judges still trend toward awarding the mother custody most of the time, making it unusual for fathers to be awarded custody of children in a contested case. Says O’Neil, “Today, fathers’ rights advocates feel that more stringent laws imposing equal footing are necessary.”

Anyone who has been involved in a contentious divorce with complex custody issues wants an attorney who is willing to get in the arena and fight for them. This is exactly what you get with Best Lawyers Michelle O’Neil and Michael Wysocki. O’Neil has developed a reputable niche in family law appeals. Her work extends further than appealing to a higher court about what may be deemed an unfair decision in family law courts. She is often called upon by lawyers to co-counsel cases to assist with complex family law matters. O’Neil has tried more than 26 family law jury trials and handled more than 75 cases in the Texas appellate courts. Many of her cases have been first impression family law cases. Described by one lawyer as a “lethal combination of sweet-and-salty,” she exudes genuine compassion for her clients’ difficulties, yet she can be relentless when in pursuit of their goals. Having tried cases in over 50 Texas counties as well as countless bench trials and jury trials, Wysocki’s experience in the courtroom knows few rivals. He focuses on family law litigation across the state of Texas, representing men and women in divorce, child custody, and complex property division cases. He believes a family law attorney must possess the skills of a counselor, mentor, negotiator, and litigator. He knows that no two families, children, or cases are alike, and he finds creative ways to solve current problems while preventing future issues. Both O’Neil and Wysocki are Board Certified in Family Law by the Texas Board of Legal Specialization.

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