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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:
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).
Pennsylvania grants a no-fault divorce when both spouses agree to divorce and file an affidavit that the marriage is irretrievably broken. The court may grant a divorce 90 days after filing. If one spouse files an affidavit that the couple has lived apart for at least two years and that the marriage is irretrievably broken, the court may grant a divorce based on those circumstances.
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