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California Child Custody Timeshare

In a divorce case, one of the big things that the courts in California will decide is custody and visitation of any minor children that the divorcing parties may have. I haven’t checked, but this is probably not unique to California. As always, check the laws of your particular state or country, but if you’re in the United States but outside of California, the court presiding over a divorce will likely determine child custody and visitation also.

To be clear, custody and visitation are not interchangeable terms. As they are commonly used in California, “visitation” refers to the schedule by which the child will visit with the parent they do not regularly live with. For instance, if the child lives with Mom regularly, then visitation refers to the schedule under which the child visits with Dad. There could be a visitation schedule for regular or routine weeks and a different schedule for other times of the year, such as holidays and the child’s summer vacation from school.

Custody — again, as used in California — refers to two kinds: (1) legal custody, and (2) physical custody. Legal custody refers to the right of a parent to decide things related to the child’s schooling, medical care, and religious education. As a rule of thumb, legal custody is at play whenever a parent has to sign a permission slip (e.g school field trip) of some kind for the child to do something. Physical custody refers to who the child lives with. A common custody arrangement might, therefore, be “shared legal custody and primary physical custody to Mom with Dad having visitation”. In such an arrangement, Mom would be referred to as the “custodial parent” and Dad would be the “non-custodial parent”.

When talking about physical custody in California, you may often see or hear the term “timeshare” often referred to as a percentage (e.g. 20%, etc). That percentage refers to the number of hours in a given calendar year the child spends with each parent. You generally only need to compute the number of hours the child spends with the non-custodial parent and then just subtract that percentage from 100.

A year has 365 days in it. 24 hours per day means that a year has, um, a lot of hours in it. (kidding, it’s 8,760 hours). Thus, if the child spends 876 hours in a year with the non-custodial parent, that works out to be 10% timeshare. Normally, that means the custodial parent has 90%.

If you’re not mathematically-inclined, don’t worry. There are many tables and charts online that will tell you the timeshare percentage for common custody arrangements. The Superior Court of Santa Clara County has such a chart in Appendix B of it’s Family Local Rules. To work through an example, suppose the non-custodial parent only has the child one weekend per month. According to the chart, this works out to 24 days in a given year or 7% timeshare. You compute that 7% as follows:

  • A normal weekend goes from 6 PM Friday to 6 PM Sunday. This allows the child to go to school on Friday, come home for a brief period, and then go spend the weekend with the non-custodial parent. The child then comes back to the custodial parent at 6 PM on Sunday and then has the evening to prepare for school on Monday.
  • 6 PM Friday to 6 PM Sunday works out to 48 hours, or 2 whole days. 2 whole days per month equals 24 days per year. 24 days out of 365 days = ~7%. (Actually, 6.6%).

From the chart, you can tell there is something called an “extended weekend” also which goes from as soon as school lets out on Friday to when school resumes again on Monday. With an extended weekend, the non-custodial parent has a few more hours on Friday (e.g. 3 PM when school lets out vs 6 PM for a normal weekend), but ~13 more hours (6 PM Sunday to 7 AM Monday) on Sunday. The percentage computation, therefore, for a 3 PM Friday to 8 AM Monday arrangement once per month becomes:

  • 3 PM Friday to 8 AM Monday = 65 hours per month
  • 65 hours = 2 days, 17 hours per month (2.71 days)
  • 2.71 days per month for 12 months = 32 days per year.
  • 32 days out of 365 days = ~9% timeshare

Why worry about timeshare? For one, if you’re the non-custodial parent, you’ll likely want to increase your timeshare so you see your kids more often. However, the more practical real-world reason is that timeshare percentage is one of two factors that determines what the child support payment each month is as well as who actually pays it.

Good luck! As always, I hope that helped.

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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