For Better, Worse, Or Divorce Podcast

Brian Walters meets with Leigh Baseheart Kahn, partner of Schwartz Sladkus Reich Greenberg Atlas LLP, a NYC and South Florida-based family law firm, to discuss the complexities of 50/50 child custody arrangements. Brian and Leigh tackle common misconceptions and legal standards that courts consider in 50/50 custody plans as well as challenges that can arise in these arrangements and their experience handling high-conflict situations. Brian and Leigh wrap up the episode with tips for parents considering a 50/50 custody plan, ensuring children’s well-being is prioritized while managing co-parenting dynamics.

If you are interested in reaching out to Leigh Baseheart Kahn: https://ssrga.com/attorney/leigh-baseheart-kahn/

Your hosts have earned a reputation as fierce, and effective advocates inside, and outside of the courtroom. Our partners are experienced trial attorneys who’ve been board-certified in family law by the Texas Board of Legal Specialization.

Brian Walters: Thanks for tuning into the Better, or Worse, or Divorce Podcast where we provide you tips, and insights on how to navigate divorce, and child custody situations. I’m Brian Walters. Today I’m joined by Leigh Baseheart Kahn. She’s a partner at Schwartz Sladkus, some other names, which is based out of New York City – also in South Florida and does family law. Leigh’s been practicing law for over 20 years. She has worked on all aspects of matrimonial matters from the preparation of complex prenuptial and marital settlement agreements to the preparation of matrimonial matters for trial. Today we’re going to be discussing some complexities and issues around child custody. Specifically 50/50 custody, a topic that we discuss with potential new clients calling the firm pretty regularly. We are excited to have Leigh to join us with her expertise. Leigh, give us a little more background about yourself. I always tell lawyers not to give me the law review bio. Tell me something interesting like where you were born and anything interesting that you do in your life other than be a lawyer. That kind of stuff.

Leigh Baseheart: Good morning, Brian. Thank you for having me. I won’t give you the normal law school bio. What I will say is I work in New York City. I lived here for seven years, but as soon as I was going to have children I got out. I live in Northern Westchester and I have two kids. One is in college at the University of Michigan, and I realized when she decided to go there that everybody knows someone who has gone to Michigan. So, go blue. I have a son who’s a senior in high school now, and going through the application process, which is, oh, so fun.

Brian Walters: About to get them both out of the house it sounds like.

Leigh Baseheart: I am. I’m on the cusp of being an empty-nester.

Brian Walters: My wife and I have two kids. Ours are younger, but she talks about that a lot. That’s a bittersweet moment. You want them to go on in life and prosper, but you also miss them. At least most kids, maybe not every one of them. And maybe not every child misses every parent. That’s interesting. So you guys have an office in South Florida. Miami area I assume as well, is that correct?

Leigh Baseheart: Our South Florida office is in Boca Raton.

Brian Walters: Okay.

Leigh Baseheart: We do have matrimonial lawyers there as well as up here in New York.

Brian Walters: We’re all over the state of Texas. If we ever went to another state, I think probably Florida would be the first choice to do that. we’ve actually looked into it a little bit here, and there, but they’ve never actually pulled the trigger on it. That seems to be the fastest growing area in the center of a lot of things these days.

Leigh Baseheart: It does, and sadly I’ve never found an excuse to have to visit the Florida office – but hope springs eternal.

Brian Walters: Well, no state income tax. Think about things in the longer term. That’s certainly a selling point. That’s why we get a lot of people coming to Texas, too. Well let’s talk about this subject at hand. I get this all the time in calls on intakes, or even for existing clients, and so about 50/50 custody which can mean a lot of different things to different people. Maybe I’ll lay out what Texas does with custody, child support, and that type of thing. You can kind of tell me what New York, and to the extent Florida does. But for here we don’t have a 50/50 as a default called a standard possession order for the court. It kind of picks a custodial parent, primary parent, and then everything sort of flows from that in most cases. There’s a bunch of presumptions, which means that’s what the court normally does. That’s what most people settle on eventually. Which is how most cases are resolved.

In Texas that looks like the primary parent has a majority of the time, but it’s not a big majority. It’s somewhere between 55, and 60% depending on the exact terms of it. It’s intended for both parents to live nearby, but to be kind of a main home during the school week is sort of the concept. Then the other, the non-custodial parent gets probably a majority of the time of the free time. The weekends, holidays, summer, and that type of thing. That’s sort of the structure that we have. From that flows child support. We have a very simple, I don’t know how fair it is, but it’s simple. That’s its own. Plus, I guess the method of calculating child support. Which is basically the non-custodial parent pays a percentage of their post-tax income, 20% for one kid, 25% for two, to the custodial parent pretty much regardless of their incomes, and the difference in their incomes.

In theory, the court can consider that. But in general, I don’t think we prize predictability here a lot. Which makes it easy to settle because everybody kind of knows what’s going to happen. That’s the way we do it here. You rarely see a 50/50 custody arrangement either by a court, or in a settlement agreement. But it can happen, it’s pretty rare. It’s kind of disfavored under the law. How by contrast does New York handle things? Or is it similar to that?

Leigh Baseheart: New York doesn’t have any presumptions at the moment, and I’ll get to that in a second.

Brian Walters: California is the same way, which boggles my mind. I don’t understand that, but that’s the way they do it.

Leigh Baseheart: For custody, it’s the best interest of the child that is the overarching standard. There’s no presumption. There’s legal custody which is decision-making. And there’s physical custody, as you know, which is where the child lives. There’s no presumption as to either. I will say most of our cases end up with joint legal custody. We may have guardrails in there to help people if they may have difficulty making joint decisions like consulting with an expert in the area, or a parent coordinator who’s someone who stays on retainer and helps them. As far as physical custody goes, that’s the one that’s gotten trickier in recent years. As I said, there’s no presumption in New York state there is a law, a potential bill pending in our state legislature to put in place a presumption for temporary custody of equal parenting time, a rebuttable presumption.

That’s still in the state legislature. It hasn’t passed, but it’s only for temporary not for permanent custody. For permanent custody. Again, we have no presumption, but the trend has been that either by settlement or in the courts I have found there has been a trend toward ending up at some point at 50/50. Not necessarily with younger children there may be a step-up to that. Although I have had cases recently where children as young as four, or five, six have an equal parenting schedule. So, it’s becoming more common. It is by no means what happens in every case, and I can’t even say this is necessarily the norm across the state because New York’s a big state. In New York City we have four appellate departments and each one may do things differently. I have found recently that it’s sort of skewing in that direction. Which carries with its own host of concerns and potential problems.

Brian Walters: Yeah, absolutely. We read about this all the tim. About somebody’s filed, some state legislatures filed a bill wanting 50/50 time, or whatever the case is. I think people read that on the internet, and think, “Oh, my gosh”, they conflate somebody. I think there’s almost 10,000 state legislators in this country and there’s hundreds of thousands of bills filed every year. Just one legislator filing one bill in Minnesota, Texas, or New York doesn’t really mean anything. It’s a question of what becomes law. Which is a much, much smaller number of such things, especially when there’s a big change like this.

It would be interesting to see. My guess is that once at least a major state actually makes the presumption of 50/50 up front on a final. I suspect it is a little bit like a dam breaking. I think a lot of other states will start considering that. So, we’ll see. I’ll say one other thing about Texas is that under the age of three, there is no presumption. Which does make it more difficult sometimes to come up with an arrangement for really young children. That standard possession presumption is only for three and out.

Leigh Baseheart: And I, in preparation for this podcast, was looking around for someone to see if there were some states that do have a rebuttable presumption already, and apparently some do. I gather Arkansas does, Kentucky does. Missouri passed one last year with varying levels of what the standard is to overcome that presumption. And I gather more state legislatures have bills pending, so it is starting to become more of a consideration. I’m actually a member, a fellow of an organization called the American Academy of Matrimonial Lawyers. We’re a national organization with about 1400 lawyers from across the nation, and we actually passed a couple of years ago a resolution in opposition to there being a presumption of equality, a fair shared physical custody for a whole host of reasons, because presumptions for instance, don’t consider a number of factors that courts normally consider in determining what’s in the best interest of the kids.

Whether there’s domestic violence, what the differences are in how the parents have a relationship with their children, a relationship with each other, how close in proximity they are to each other, what a child’s mental health, or psychological needs may be. The age of the child, and the child’s preferences. And when there’s a presumption, those factors may get lost in a determination. So, it was a concern enough of our organization that we put out a resolution on this issue.

Brian Walters: Yeah, understandably, and I get that a lot of people who come into my office, and why wouldn’t it be 50/50? I’m just as much of a parent as the other one is. I love my children just as much. I’m just as capable. It’s a fair question. I totally think that it is, but let’s go through some of the reasons that are cited, and again, that’s the law in Texas, so obviously the state legislature, and the governor so far have thought that these reasons override a 50/50. I mean the first one that comes to my mind is exactly the way it’s structured is the school schedule. Is that to be a 50/50 time, let’s just say that’s week on, week off, and let’s just say it’s, I don’t know, a fifth grader, or something like that. To do that realistically you would both have to live, it’s an elementary school, so you’d have to both live pretty close to the school, I think, because if they’re going to get on a bus, they’d have to both be in the bus route, right?

They’d both have to live within the area of the elementary school. And in a large city that’s a small area where there’s a lot of population, there’s a lot of elementary schools, and if you live three blocks away, you might be in another elementary, so the bus isn’t going to come there. Or if you live 10 miles away in a dense area, that might be a thirty-minute drive each way depending on traffic, et cetera. And otherwise, if they were kind of in the primary home arrangement during the school week that could either walk to school, or ride a short bus ride, or have a two-minute car ride, now they’re looking at when they’re at the other home, if they’re not close by each other, they’re spending an hour a day on the road that interferes with everybody’s schedules.

That can be a problem with schoolwork, and homework. And if a parent has to stay at work till five, or six, now the child, instead of being able to come home right after school, has to stick around with aftercare until six o’clock, or 6:30, or something. You can come up with a lot of reasons why that would be an issue. And I think most parents probably when they get divorced, or split up if they’re not married, probably think they’re going to live pretty close by other, but the reality is that if you get divorced when your kid is six years old, it’s unlikely you’re going to live within three, or five miles of each other for 12 years until that kid graduates from school. And so how do we deal with that? I think that’s, to me, kind of a logistical issue around school to me is, and related to extracurricular activities that are often school-based. To me, that’s one of the main arguments against it, against just a regular 50/50 is it wouldn’t be practical at some point. So, anyway, what are your thoughts about that?

Leigh Baseheart: Well, I think that’s right, and I think what it also highlights is the need for good parental communication, and co-parenting. If you’re going to have a 50/50 schedule, even if it’s week on, week off, or some other variation of that, you have to have parents who can get along, who can coordinate. What if, for example, a child leaves a book, or something for an extracurricular that they need at the other parent’s house. You’ve got to have a willingness to communicate, and have an exchange with the other parent. You have to be willing to have, for example, be on the same page for discipline, and house rules, and bedtime, and all sorts of things. Because if in an equal parenting schedule, one house has one set of rules, and the other one has a very, very different set of rules, not only does it make it difficult for the parents, it makes it difficult for the child to adjust half the time to one set of rules, and half the time another.

So, you have two parents who are willing to be on the same page with each other, and there are some who can. I have some clients who say look, “I can go with the flow, this is what’s best for my kids”, and that’s great, but you have a good number of situations where that’s not the case, and for who an exactly equal schedule would be difficult for the logistical reasons.

Brian Walters: Yeah, I agree. I think that’s a good summary of it. And again, I think when you start out, when you first split up, or divorce, it’s not that difficult to do that 50/50, but what happens three, or five years down the line when somebody has to move away to a different part of town, they remarry, get a job, different job, that kind of thing. Now how do we deal with that at that point? I think that’s a problem. I mean, for example, in Texas, under the standard possession order, there are three different versions of it. There’s the one where you live real close to each other. There’s the one where you live kind of in the same general area, and then there’s the one where you live far away from each other, and you actually have three possession orders when you do that. And it just depends on how far away the parents live from each other.

Usually the main parent is, so the primary parent is restricted to a specific area. And so how are we going to do that if it’s 50/50, and now somebody moves, do we have to come back to court? I think that you often would at that point. Well, I’m moving. I don’t have a choice, and why should I be penalized, right? Custody battle number two, three years later. And I think that’s one of the reasons the courts, at least in Texas, are trying to that arrangement. And I can see why New York would have potentially on temporary orders of 50/50, because usually, yeah, you’re just splitting up, you’re generally staying in the same area, and it’s a lot going on, and that might kind of calm everybody down, but long term I think you’re going to have to think about some other arrangements.

Leigh Baseheart: I think that’s right. And one of the other things that I had this concern come up in some of my cases, one of the things with particularly a presumption of equal parenting schedules is to a certain extent, it makes it almost more about the parents than the children, and the children are supposed to be the focus of this. An issue that I see is the potential for using it as leverage. If a parent wants to get an edge financially, they can say, “Well, we have a presumption of equal custody, but I’m willing to compromise on that if you’re willing to compromise on these financial issues”, for instance, another potential problem is at least in New York, the way our child support statute works, it’s like Texas in that the non-custodial parent pays, and there’s a calculation based on percentage of income, child support to the custodial parent.

But when there is equal parenting time, what our law has developed is that the parent with the greater income pays child support to the parent with lesser income. So, then you have situations where people think that there may be motivation to seek an equal parenting schedule to impact the child support award. Our judges are aware of that. I’ve had one judge talk outside the courtroom just speaking to a group of lawyers, mention that she knows that that’s a concern, and she’s mindful of that, but it’s something that complicates a presumption of equal custody, because then you build into it in New York, at least that presumption of, okay, what’s the motivation for fighting to keep the presumption, or what’s the motivation for seeking to rebut the presumption?

Brian Walters: Absolutely. And I do think there’s, again, I typically get these folks coming in just sort of from the, I read somewhere, which might be reliable. It might not be, but it’s, you get the sense that there is some of that where, “Oh, if I get 50/50, I don’t have to pay child support, or I get a big discount.” And again, I think that’s one of the reasons Texas doesn’t presume that, because they want this to be real predictable so that everybody settles their cases, or almost everybody settles their cases, and doesn’t clock the courts. And I flesh that out, or fleshed that out usually pretty quickly by saying, “Okay, well if it got you 50/50 time, would you still pay the full amount of child support, like you just had the standard order.” And if the answer is just an unequivocal, “Sure, no problem. I don’t care. I just want more time with my kid.”

Well then that’s probably what driving it is more. But I often don’t get that response. I usually get, “I thought I wouldn’t have to pay child support in that circumstance.” And I think the judges are really sensitive to that. I had a trial recently where we took exactly that position on custody for the dad is even and he is a higher wage earner, but if I win, or lose custody, I don’t care. I’m still going to pay that standard amount of child support. Again, took that issue off the table. I think of them trying to say that’s what was driving it, and I think won him a good amount of points with the jury, and judge in that particular case. So, I think that that is something people ought to be aware of is that if you do truly want more time, that probably won’t affect your child support payment. So, think carefully about what that is.

The other part of this is that busy parents who are most parents, whether they have a job, or whether they’re a stay at home parent, or whatever, they often can’t even use all the time that they’re given, especially if they’ve remarried, or had another child with somebody, or remarried, and had another child with somebody. Most people and most schools, at least in Texas, get out around 2:30, or 3, and most people have to work past that time. Most adults do. And so can you really use that after school time every day?

Can you really use all of the 30 days in the summer we have in Texas for kind of intended to be sort of a long vacation. Most people cannot take 30 days of vacation, and they end up actually, it becomes a problem in the summer, “What am I going to do with my child? I’ve got to work, and they’re with me for 30 days”, and sure we can go on a week to Disney World, or whatever, but what about the other three weeks? And so these can be problems. And so sort of one of those, be careful what you ask for situations, I think.

Leigh Baseheart: Right. And I’ve had that come up recently since the pandemic with more people working from home. And so they say, “Well, I work from home so I can have half the time, because I’m still home.” But when you have very young children working from home, I’ve worked from home with very young children, and it’s not as easy as it sounds.

Brian Walters: No, no, me too. I do that all the time, but I have to close the door, and my wife, and kid know not to bug me.

Leigh Baseheart: Right. But if you’re a single parent who has a child with you for 50% of the time, you don’t have that luxury.

Brian Walters: Absolutely. And all that it really does is cut down on your commute time, which maybe that’s a big amount of time. Maybe that’s not, maybe you can work after two hours off in the afternoon to be with your kids after school, or whatever, and then pick it up at eight o’clock at night. But again, I don’t think that’s very practical for most people. They’re probably going to want to do something else with their time. So, again, in theory, I think this makes a lot of sense. Both parents love their children. Both parents want to be with their kids as much as they can, but at least in Texas, and it sounds like New York as well, at least on our permanent order, we’re not going to typically see 50/50s here. And maybe the law will change at some point, but I haven’t heard a real push for that.

We’ve actually got a couple of family lawyers that are in the state legislature, and they kind of keep us informed about what’s happening, and not happening, and basically there’s not much they’re going to change. I took five years off in the middle of my career to run, and own a different business, and just kind of take a break from this, and I came back after five years, and literally nothing has changed. So, although, that’s not true, same-sex marriage had become legal, but that really didn’t change anything either. I just was like, “Okay, there’s a few more people, a few more clients”, but otherwise there’s no difference. It didn’t change anything. The law didn’t change the financial stuff. It didn’t change custody issues. If they had a child together, whatever, it was nothing literally had changed. So, maybe there’ll be some big changes in the future in Texas, but I don’t anticipate it anytime soon. We’ll see. We’ll see. Who knows.

Leigh Baseheart: In New York, it’s changed over time, but the way I look at it as we’re getting to a lot more 50/50 custodial arrangements, even without there being something in the law. People get there, or courts award it. So, the way I look at it, if we get there anyway, why do we need to put in something that creates complications that don’t need to be there?

Brian Walters: Yeah, absolutely. That’s very true. Okay, well, I think that’s all the time we have for today. If you’re interested in reaching out to Leigh directly, we have her contact information in our bio, and thank you for joining us today, by the way.

Leigh Baseheart: Thank you for having me.

Brian Walters: Yeah, my pleasure. As always, if you have any follow-up questions on this episode, or would like to talk to one of us directly about your family law situation, reach out to us at Podcast@waltersgilbert.com, or you can just contact us directly through our website, waltersgilbert.com, I’m Brian Walters, and thank you for listening.

Leigh Baseheart: Thank you.

For information about the topics covered in today’s episode, and more you can visit our website at waltersgilbert.com. Thanks for tuning into today’s episode of For Better, or Worse, or Divorce, where we post new episodes every first, and third Wednesday. Do you have a topic you want discussed, or a question for our hosts? Email us at podcast@waltersgilbert.com. Thanks for listening. Until next time.