Posted in: Custody & Visitation
Who gets custody of the children after a marriage ends may be one of the most complicated issues a divorcing couple has to face. Not so very long ago, the parent who spent the most time caring for a child during the marriage (known as the Primary Caretaker) was almost sure to be allowed to continue that level of care after the couple’s divorce. Since the mother was usually the parent who contributed the most time to the child’s care, a mother could feel pretty confident of gaining primary custody after the dissolution of her marriage.
But, the law has changed over the years. Awards of custody equally shared by a mother and father have become commonplace. And an award of primary custody to a father is not the surprise it once was.
In 2011, a newly enacted Pennsylvania statute listed the factors a court must consider when making a decision regarding child custody. Despite the new statutory standards, however, Pennsylvania courts continued, in some cases, to give special consideration to a parent who already had primary custody. In those cases, the new Act’s effect on the legitimacy of this favoritism was never explicitly discussed.
This changed on March 1, 2013, when the Superior Court of Pennsylvania found that the favoritism traditionally granted to a primary caretaker violated the statute enacted in 2011.
In a 1982 case involving the custody of a very young child, the Superior Court of Pennsylvania created what came to be known as the Primary Caretaker Doctrine. (The “primary caretaker” was the person who devoted the greatest time and effort to the child’s care.) Stated simply, a court following the Primary Caretaker Doctrine gave special consideration (under certain circumstances) to the parent who had primary care of a child in the past when the court made its decision regarding future child custody. If both parties were found to be fit and loving parents and nothing else tipped the scales in favor of one or the other, the question of who had primary care in the past could be the deciding factor under this doctrine.
Even before the 2011 Child Custody Act went into effect, the courts were moving in the direction of gender-neutral decisions and the granting of primary custody to non-custodial parents. In a2009 Superior Court decision, for example, a father was granted primary custody even though the mother had had primary custody of the child in the past. The court still gave “positive consideration” to the mother’s history as primary caretaker, but found that the Primary Caretaker Doctrine did not guarantee her custody going forward.
Although the mother was found to be a fit and loving parent, circumstances involving the father’s care of the child had changed. The father was now making a greater effort to put the child’s interests above his own. The mother, on the other hand, was found to be putting her own interests first. The quality of the current care given by the father won over the quantity of care given by the mother in the past, and the father was awarded primary custody.
In 2011, Pennsylvania’s Child Custody Act went into effect. Under this new Act, courts are required to consider all of 15 specific factors along with “any other relevant factor” in determining which custody arrangement serves the best interests of a child. The Act also specifies that the court must give extra, or weighted, consideration to any factor that affects a child’s safety.
The Act does not provide that such weighted consideration be given to a parent’s status as primary caretaker. But, because the Act does not explicitly state that a parent’s role as primary caretaker should no longer be given extra weight, the Act’s effect on the Primary Caretaker Doctrine was not made perfectly clear. As a result, at least one trial court continued to give “positive consideration” to a parent’s role as primary caretaker even after the Act went into effect.
In a case decided on March 1, 2013, the Superior Court of Pennsylvania directly addressed the Child Custody Act’s effect on the Primary Caretaker Doctrine for the first time. In this case, although the mother had acted as the child’s primary caretaker before the custody hearing, the trial court awarded primary custody to the father. The mother argued that her role as primary caretaker up until the time of the hearing should have been given more consideration in the court’s decision, but the Superior Court disagreed.
The Superior Court held that the Child Custody Act clearly states that all 16 factors (which include the catch-all “any other relevant factor”) must be considered in arriving at an award of child custody and that extra weight shall be given only to those factors that relate to a child’s safety. Since the matter of which parent had primary care of a child before the hearing is not, in itself, related to a child’s safety, it cannot be given special weight under the current law.
The Court explained that if the legislature had intended courts to continue to give weighted consideration to a parent’s status as primary caretaker, it would have included that requirement in the statute. Although the Child Custody Act became effective more than 2 years before the 2013 decision, this was the first time the Court specifically addressed the Act’s impact on the Primary Caretaker Doctrine.
The Court pointed out that a parent’s role as primary caretaker will still be taken into account (without special emphasis) under the current Child Custody Act because it is implicitly included in at least 2 of the 16 factors a court must consider. According to the court, factors 3 (the parental duties performed by each party on behalf of the child) and 4 (the need for stability and continuity in the child’s education, family life, and community life) address the care given by both parties, including the primary caretaker.
Thus, a parent’s role as primary caretaker will still be considered, but it will not be given any more importance than any of the other statutory factors. If the 16 factors taken as a whole do not tip the scales in favor of either parent, the primary caregiver’s role may no longer be used as the deciding factor. The only factors that will be given extra weight under the current law are those that affect a child’s safety.
A parent who has had primary custody in the past can no longer be assured that her role as primary caretaker will give her an edge in a current child custody dispute. But the role will continue to be considered in the context of the 16 factors in any decision regarding custody. If a court finds continuation of the past custody arrangement—after appropriate consideration of all 16 of the required factors—to be in the child’s best interests, current custody may still go to the past primary caretaker.
A parent who did not have primary custody before a custody hearing is in a better position now than he was prior to the March 1 decision. Prior to the decision, the other parent’s history as primary caretaker might have swayed a court in that parent’s favor when none of the other factors served to do so. Now, the Superior Court has made it clear that a trial court can no longer use prior primary care as a weighted factor in its decision. A parent who in the past may have felt he had little chance at winning primary custody of his child may very well succeed under the current state of the law.
Awards of shared custody may also increase as a result of this recent clarification of the law. In a case where primary custody might have been given to the parent who had already served as primary caretaker, shared custody may be awarded because it will no longer be seen as a violation of the now invalid Primary Caretaker Doctrine. A court may find a shared custody arrangement to be in a child’s best interests after considering the 16 factors—without giving extra weight to those related to past primary care.
Although the law of child custody has evolved over the years, the courts’ required focus has always been on the best interests of the child. The opinion of the Superior Court in M.J.M. v. M.L.G. recognizes that awarding continued custody to a parent simply because that parent has had custody in the past may very well not be in a child’s best interests in a particular case.
Though the Child Custody Act implicitly recognizes this by not including a weighted emphasis on prior custody arrangements in its requirements, M.J.M. v. M.L.G. leaves no room for doubt. Going forward, special consideration or favoritism will no longer be given to the parent who has had primary custody in the past.