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Custody & Father’s Rights in Pennsylvania

On Behalf of | Nov 21, 2013 | Child Custody

Custody & Father’s Rights in Pennsylvania

Many fathers fighting for custody of their children have the misconception that Pennsylvania courts favor mothers.  While it was once the norm for fathers to only have their children every other weekend and for a few hours one night a week, such is no longer the case.

Custody law has changed dramatically in the past few years, and even the past few centuries. At one time, prior to the early 1800’s, mothers could not have custody of their children. Children were considered property and, at a time when women could not own property, fathers automatically received custody of their children. However, by the 1800’s, the tables had turned with the advent of the “Tender Years Doctrine.” The Tender Years Doctrine established the presumption that the custody of young children belonged to the mother. It was assumed that only mothers, and not fathers, could provide the kind of nurturing that young children need to flourish.

Even after the Tender Years Doctrine was found to be unconstitutional in 1970’s, Pennsylvania courts still favored the mother when determining who would receive primary custodial rights of minor children. In the 1980’s, the primary caretaker doctrine was established. The primary caretaker doctrine held that when two parents were equally fit, the parent who was the primary caretaker, i.e, the parent who bathed the children, dressed the children, and took the children to their medical appointments, among other things, usually the mother, would be given positive consideration.

In 2011, the Pennsylvania Legislature established new law. Specifically, the new law set forth 16 factors for courts to consider when awarding custody of minor children. Said factors include, but are not limited to, the parental duties performed by both parties, past abuse committed by either party, the child’s sibling relationships, the need for stability and continuity in the child’s education, family life and community life, and which party is more likely to attend to the daily physical, emotional, developmental, educational, and special needs of the child. All of the factors laid out in the new law are to be given equal consideration, except that those factors dealing with the safety of the child, such as past abuse committed by one parent, may be given extra weight.

Most courts and attorneys read the 2011 law as having abolished the primary caretaker doctrine, because although the care provided by one parent was a factor to be considered, it was not to be given extra weight. The primary caretaker doctrine was officially abolished in 2013 when the Pennsylvania Superior Court held that the doctrine was longer viable.

The 2011 custodial laws provide for gender neutrality custody cases, meaning that there is no presumption that either the mother or the father should be awarded custodial rights based on their sex. Today judges must make these decisions regarding the relative fitness of the parents and make an award of custodial time that is in the best interests of the child, using the 16 factors set forth by the legislature.

Generally, it is now widely accepted that shared custodial agreements, i.e equal time with both parents, benefit the children of divorced parents. Courts today strive to assure continuing contact with both parents and the sharing of rights and responsibilities by both parents. Unless the circumstances dictate otherwise, when both parents are fit and live in close proximity of one another, the court will award shared custody of the child without showing a preference based on either parents’ gender.

However, if a father were to wait to pursue shared custodial time with his child, allowing the mother to restrict his time with the child to anything less than 50/50, this may establish a “status quo” that the court may be hesitant to disrupt. The attorneys at McMorrow Law, LLC are skilled at handling all aspects of custody cases. Call us today at 724-940-0100 so that we may help you preserve your relationship with your child.