In 2019 the Dad’s Resource Center concluded a study reviewing the distribution of time that children are assigned to parents in divorce proceedings by Courts of the Commonwealth in 14 Pennsylvania counties and has found that fathers are disproportionately impacted by rulings. The study reviewed the first 50 cases starting in 2016 for which the courts made a final determination of custody. The population classes of the counties ranged from 45,000 to 499,999 and represented a broad geographical range from within the state.
For the 700 cases that were reviewed, the average awarded custody time per week (total 168 hours) was 116 hours to the mother and 52 hours to the father (69% to 31%). Mothers received either full or primary custody in 496 cases and fathers received full or primary custody in 100 cases. Parents were awarded joint custody in 104 cases.
“Studies show that children develop best, and have the greatest chance for success in life, when both parents play an active role in their childhood,” states DRC Executive Director Jeff Steiner “Despite Pennsylvania Courts embracing the trend of joint physical custody, the outcomes from this study unfortunately supports the belief that fathers all too often are not given the opportunity to provide the time and attention their children so desperately need from them and that they want to give.”
In Pennsylvania, there is no presumption in favor of joint custody. The Superior Court has maintained (In re Wesley J.K., 299 Pa. Super. 504 (1982)) that a presumption-free law allows lower courts to engage in full, fair and comprehensive examinations of the best interests of the child, without burdening the custodial parent with defending the status quo.
According to the Spring 2016 article in The Philadelphia Lawyer “Applying the ‘Best Interests of the Child’ Standard in Shared Custody Arrangements”, Pennsylvania courts historically relied on the primary caretaker doctrine in support of an award of primary physical custody to one of two fit parents.
The Pennsylvania Superior Court’s decision in M.J.M. v. M.L.G., 63 A.3d. 331, (2013), changed this in that primary caretakers would no longer be given weighted consideration. The Superior Court determined that the best interests of the child should be given careful and thorough consideration of 16 factors affecting the safety of the child (enumerated in Section 5328(a)).
The article notes that while Pennsylvania courts in theory are embracing the trend of joint, or shared, physical custody, shared custody still does not have a set legal definition. State custody is defined in legal and physical custody. Legal custody is the right to make major decisions on the child’s behalf. This includes, but is not limited to, medical, religious and educational decisions. Physical custody refers to the amount of time the child actually spends with each parent, and what parent assumes responsibility for the child’s day-to-day needs.
Out of 700 determinations, 343 awarded 132 hours a week to one parent and 36 hours a week to the other. The mother received this primary custody determination 291 times and the father received it 52 times. This almost always represents every other weekend and one night a week custodial time.
“This was one of the most striking results of the study,’ said Steiner. “Almost half of the determinations fell into this template, which greatly limits children’s access to one of their parents.”
Legal decisions that lean toward mothers have been pervasive for decades. In the case of Commonwealth v. Addicks decided in 1813 by the Pennsylvania Supreme Court, the late Chief Justice William Tilghman stated that “… considering their tender age, they [the minor children] stand in need of that kind of assistance, which can be afforded by none so well as a mother.” With this statement, the “tender years doctrine” was born and a presumption that custody of children of tender years (in other words minor children) should be awarded to their mother. The tender years doctrine became one of the most pervasive and firmly entrenched presumptions in American law.
While the tender years doctrine was found to be unconstitutionally stereotypic and voided in 1977, the results of the DRC study raises concern that the outcomes of final custody orders do not support the consensus that children need both parents in their lives. According to the website of Lisa Marie Vari & Associates, Pittsburg Family Law and Divorce, Pennsylvania court rulings have favored primary custody awards to the mother, which is not always in the best interest of children.
Research overwhelming supports the importance of both parents being actively involved in the lives of their children. A February 1, 2018 article posted at Fatherly relays that data from 30 studies shows that joint custody is most often the best option for separated families.
“The results of the study question the influence legislative provisions are having on the custody decisions made by our judicial system. Our hope is that the results can stimulate further discussion, and analysis, of how the system potentially disenfranchises fathers, which as a result disadvantages children,” said Steiner.