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Changes in the Pennsylvania Custody Law Eliminate the Primary Care Taker Preference

In 2011, the Pennsylvania legislature enacted a new custody law that changed the way custody was determined by the courts and attorneys when representing their clients in custody actions. The Pennsylvania Superior Court, in M.J.M. v. M.L.G., discussed whether the primary caretaker would still be given greater weight or whether the primary caretaker doctrine would be only one factor since it is now part of the sixteen factors enumerated by the new Pennsylvania Custody law.

In 23 Pa.C.S.A. 5328, the legislature set forth sixteen factors to consider when determining custody. They are as follows:

  1. Factors - In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:
    1. Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
    2. The present and past abuse committed by a party or member of the party's household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.
    3. The parental duties performed by each party on behalf of the child.
    4. The need for stability and continuity in the child's education, family life and community life.
    5. The availability of extended family.
    6. The child's sibling relationships.
    7. The well-reasoned preference of the child, based on the child's maturity and judgment.
    8. The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.
    9. Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs.
    10. Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
    11. The proximity of the residences of the parties.
    12. Each party's availability to care for the child or ability to make appropriate child-care arrangements.
    13. The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party's effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.
    14. The history of drug or alcohol abuse of a party or member of a party's household.
    15. The mental and physical condition of a party or member of a party's household.
    16. Any other relevant factor.

Prior to the enactment of the 2011 Custody Act, the courts tended to give greater weight to the primary caretaker of the children. The primary caretaker doctrine stated that “where two natural parents are both fit, and the child is of tender years, the trial court must give positive consideration to the parent who has been the primary caretaker.” Commonwealth ex rel. Jordan v. Jordan 448 A.2d 1113 (Pa. Super. 1982).

However, after the enactment of the 2011 Custody Act, the Superior Court in M.J.M. v. M.L.G. stated that “the language is clear (in section 5328 of the Custody Act), and we cannot expand it to provide that a trial court must also give weighted consideration to a party’s role as primary caretaker.” The Superior Court did indicate that where necessary, especially when the safety of the child is at stake, various factors, including the primary caretaker factor, could be given greater weight. However, in normal circumstances, all of the sixteen factors of the Custody Act are to be given the same weight. One factor is not more important than the other.

Currently, the primary caretaker is no longer given greater consideration than the non-primary caretaker. The court is required to look at all sixteen factors equally and take into consideration the best interests of the child to determine the proper custodial arrangement. Clients and their attorneys need to take all of these factors into consideration when negotiating a custody agreement or preparing for court.

Number 16 of the sixteen factors of the new custody act, “any other relevant factor,” now becomes more important when discussing custody with counsel or presenting the case to the court, especially when all other factors are equal. The new custody act now gives both parents equal opportunity to obtain custody of their children.

It is now more important than ever for an individual to consult with his or her attorney to evaluate the new law in comparison to their individual circumstance so that the correct decision can be made for the best interest of the individual’s child(ren).


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