By Matthew T. Hovey, Esquire
Earlier this year, the custody portion of Pennsylvania’s Domestic Relations Statute (Chapter 23) received a major update. The update included both changes to promote progress and conformity amongst practitioners and the codification of organic developments in the law, such as in the area of relocation of one parent with a child or children subject to a custody order. Most of the changes have been viewed favorably and well accepted.
One of the most significant changes is in 23 Pa.C.S.A. § 5327(a). This section of the statute establishes that “In any action regarding the custody of the child between the parents of the child, there shall be no presumption that custody should be awarded to a particular parent.” What does this mean? It is now explicitly mandated that the Family Courts cannot favor the mother over the father simply because she is the mother of the child, or vice versa.
This is a progressive development in the law and a clear step towards gender equality. At least on a superficial level, mothers and fathers now stand on equal footing when it comes to parenting their children. Courts are no longer permitted to rule based on hollow stereotypes and, if there is a true fight over primary custody, are required to seriously examine the parenting abilities of each party and the unique circumstances of each case.
The consequence of this mandate, however, has been an emphasis on shared physical custody (otherwise known as 50/50). Recently, I discussed this portion of the statute with a Family Court Judge. The Judge expressed to me that based on his/her interpretation of the statute, if all the custody factors used to evaluate the parents are essentially equal, then the Judge felt that he/she had no choice but to award shared physical custody because the Court is no longer permitted to favor one parent over the other unless the evidence tips the scales of justice.
What does this mean for a custody case? If a parent strongly favors primary custody, then he/she needs to be prepared to fight. The parent will need to hire an attorney and assume the inherent risk of taking his/her case to trial. The parent, in conjunction with the attorney, must construct a strong case in favor of his/her position. This may include evidence related to parenting the child, co-parenting between the parties, and, if available, expert evidence regarding how the situation of shared custody is psychologically and emotionally effecting the child.
Agree or disagree with the change in the statute? We at Prince Law Offices, P.C. want to know. Leave a comment below and share your opinion with us!