A legal guide to advantages & disadvantages of 50/50 custody

With 48,700 divorces finalised across the country in 2023 according to the latest statistics from ABS, separation and divorce are part of life for many.

By Mercedes Porthan, Legal Assistant at Armstrong Legal, Brisbane and Danielle Forward, Practice Leader at Australian Family Lawyers, Bayside.

 

Separation after the breakdown of a relationship can be a complex and challenging process in many ways. This is especially true for relationships where children are involved, whether the parents were married or not. It’s only natural to want to maximise your time with your children post-separation.

Whilst this process can be emotionally draining and anxiety inducing to most, it’s important to explore and understand your options fully. After all, you’ll want the best for your children.

For legal background, the legislation governing such matters is the Family Law Act 1975 (the Act) with recent amendments made to it by the Family Law Amendment which came into force on 6 May 2024.

Amongst other things, the amendment removed the presumption of equal shared responsibility, noting that there has never been a requirement for children to spend equal time with each parent. In simple terms, this means that the Court must look at what is best for the child as the main consideration when making a decision.

The good news is there is no need to involve the Court in determining the parenting arrangements if you and your former partner agree on the future arrangements for the children. In fact, it’s encouraged to come to an agreement without Court interference.

The latest study published in 2019 by the AIFS tells us that 97% of separated parents do not go to Court to decide their parenting arrangements.

Instead, many parents will elect to go through family dispute resolution services (mediation) and/or lawyers to assist in reaching an agreement without Court intervention.

If you’d like to learn more about the dispute resolution process refer to our article on mediation.

 

What is 50/50 custody?

50/50 custody provides for the child or children to spend equal time with each parent during the week or fortnight period. According to a 2014 survey of separated parents, only 9% chose a 50/50 arrangement for their family.

It’s important to note that there are many care arrangements available to parents and a 50/50 schedule might not be best suited for everyone’s family taking into account schools, work and distance.

In those cases where 50/50 is not workable or in the child’s best interest, one parent will assume the primary carer role and the other parent will spend time with the child that suits best which might be close to 50/50 or something else.

 

Types of agreements

While some parents may prefer to have an informal arrangement, it’s generally advisable to formalise the parenting agreement in a document. There are two options:

Parenting plan

This is a written agreement dated and signed between the parents covering the parenting arrangements. This does not require the Court’s approval and is therefore not legally binding. This does suit parents with a good co-parenting relationship, however there are risks in not having a binding and enforceable arrangement; or

Consent order

Similar to a parenting plan, a consent order outlines the care arrangements for the child, however it has the added advantage of being approved by the Court making it a binding and enforceable Court Order which parents must follow. This is usually the preferable option.

If parents can’t agree on the care arrangements for their child, then it might be necessary to apply to the Court for parenting orders. The presiding Judge would then make a binding parenting order if the parties can still not reach agreement between themselves.

The best interests of the child

Section 60CA of the Family Law Act 1975 provides that – “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” 

Section 60CC(2) of the Act outlines the primary considerations in determining the best interests of the child. These include the importance of the child having a relationship with both parents, the need to protect the child from harm, the developmental, psychological, emotional and cultural needs of the child and any views expressed by the child. In short, the well-being of the child is the priority above all else.

 

Thinking of a 50/50 arrangement? Consider these factors first

The number one priority and most important question should always be “What is best for my child?” However, you must equally consider “How can I make this happen?”. Whilst 50/50 might sound fair to all in theory, do bear in mind that it doesn’t work for every family.  Consider these factors:

1. Is your schedule likely to change on short notice? 

Can you prioritise your child’s wishes or needs on short notice? Children who spoke positively about 50-50 custody in a 2012 study highlighted parental flexibility about changing or swapping days based on their needs as a key factor.

2. Can you communicate effectively with your ex? 

Another main consideration should be whether you genuinely believe you can and wish to stay in regular contact with the other parent. In a 50/50 arrangement, you’ll have to work together as a team due to the time management and planning aspect of these arrangements.

3. The child’s age

From monsters under the bed to teen troubles, the age of the child can play a significant influence on whether a 50/50 arrangement will work.

Whilst younger children often enjoy new experiences and spending quality time with their parents, those who are on the older side can often find travelling between two homes burdensome and find this can interfere negatively with their social life. Check out our article on child custody schedules by age for practical schedules that may work for you.

4. Consider your financial position and financial stability.

Regardless of the type of parenting arrangement, both parents have a duty to support the child financially after separation.

Parents are free to manage this between themselves or they can apply to the Child Support Agency.

 

Advantages of 50/50 custody

In an equal time arrangement, co-parenting is more embraced and parents need to work together as a team which can have a positive impact on children. What’s more is the child may have a richer life in terms of experiences by sharing time at two different homes.

Additionally, having a child regularly exposed to different extended family carers, race and cultural practices can be beneficial to the child’s development, emotional wellbeing and identity.

 

Disadvantages of 50/50 custody

Frequent communication and contact is required between parents for a 50/50 arrangement. Therefore, parents who are unable to effectively communicate may not be able to facilitate a 50/50 arrangement in a manner that is positive and beneficial for the child.

Children may have difficulty adapting to frequent travelling and sharing of two homes. Younger children in particular can struggle with overnight arrangements based on their need for security and attachment to one parent and home.

Examining the pre-separation child-parent relationship could be a good starting point in deciding whether 50/50 custody is a good idea. Having equal time with both parents could have a negative effect and become taxing on the child’s emotional wellbeing if there is a lot of animosity and unresolved issues between the parents.

Parental conflict, along with distance between the two homes were mentioned as a key factor in the 2012 study by children who spoke negatively about their 50-50 custody arrangements.

 

How to make 50/50 custody work:

To make 50/50 custody work you MUST establish a suitable schedule for both parents and for the child.

There are plenty of templates available online that can help. Alternatively, seek legal advice to ensure you are entering into an arrangement that best suits your family.

There are also many useful co-parenting Apps that can help. For further information on this, see our article specifically on co-parenting apps for divorced parents. 

Ensure you establish expectations early on to avoid conflict arising from last minute changes, activities or interactions. It’s crucial to have good communication between the parents and the best way to go about this is to openly communicate your concerns and needs with the other parent, respectfully. This will show a good example to your child of teamwork and respect.

 

FAQs 

Are fathers less likely to get 50/50 custody?

The Court tends to favour arrangements that allow children to maintain strong relationships with both parents. In many cases, if the father has not been as actively involved in caregiving or if the mother has historically taken on the primary caregiving role, judges may be less likely to award 50/50 custody, assuming that the child might need more stability with the parent they’re most familiar with.

Times are changing however as it’s becoming more common for both parents to be working and raising children which means we are seeing more shared care arrangements. Ultimately, each case is determined on its own facts and what is best for the child.

What are some major red flags before the Court?

Having a history of any violence or abuse may hinder a  50/50 custody outcome.

What are the most common reasons to reject 50/50 custody?

 At the end of the day, it will all come down to practicality and what’s in the best interest of the child. For example, it will be deemed impractical and not in the child’s best interest to grant 50/50 custody in a case regarding a newborn who is still breastfeeding.

How is child support calculated in 50/50 custody?

If the Child Support Agency is determining the rate of child support, the income of the parents and nights of care the children spend at each household will be used in their calculation method. Alternatively, parents may opt to have a private agreement instead.

What about the child’s wishes? 

The child’s views are important, and their preferences may be taken into consideration. Generally, the older the child the more consideration their opinion will get. However, there is no set age limit in Australia for when a child is mature enough to make such decisions.

 

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