Should a parent who was the primary caretaker of a child during the marriage be afforded special consideration in a child custody dispute? Not anymore, according to the Pennsylvania Superior Court in the recent case of M.J.M. v. M.L.G., 2013 PA Super 40 (March 1, 2013).
In M.J.M., the mother of a 6-year-old child had primary physical custody of the child since birth (the parties were never married). The father filed a petition to modify the custody order and ultimately received primary physical custody of the child; the mother was awarded partial physical custody. The mother appealed the order to the Superior Court arguing, inter alia, that the trial court failed to apply the primary caretaker doctrine — in other words, the trial court did not properly consider her role as the child’s primary parent up until that point.
The primary caretaker doctrine dates back to the Superior Court decision of Commonwealth v. Jordan, 302 Pa. Super. 421, 448 A.2d 1113 (Pa. Super. 1982). In Jordan, the Superior Court held that in cases involving an award of primary custody where two natural parents were both fit, and the child was of tender years, the court must give positive consideration to the parent who has been the primary caretaker of the child. Essentially, the doctrine was intended to be an additional consideration that would tip the scales in favor of the primary caretaker of the child, but only in a situation where the trial court found both parents to be equally fit to act as the primary custodian of the child.
On January 24, 2011, a new piece of legislation went into effect that substantially revised several aspects of the Pennsylvania custody law. Among those revisions was a mandate that a trial court must consider 16 enumerated factors in ordering any form of custody. This new act provides that the trial court must give "weighted consideration to those factors which affect the safety of the child." The factors are:
• "Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
• 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.
• The parental duties performed by each party on behalf of the child.
• The need for stability and continuity in the child’s education, family life and community life.
• The availability of extended family.
• The child’s sibling relationships.
• The well-reasoned preference of the child, based on the child’s maturity and judgment.
• 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.
• Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.
• Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.
• The proximity of the residences of the parties.
• Each party’s availability to care for the child or ability to make appropriate child-care arrangements.
• 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.
• The history of drug or alcohol abuse of a party or member of a party’s household.
• The mental and physical condition of a party or member of a party’s household.
• Any other relevant factor."
In M.J.M., the Superior Court held that the language of the statute is clear and provides that the only factors that shall be given weighted consideration are those factors that affect the safety of the child, not who acted as the primary caretaker. If the Pennsylvania Legislature intended for extra consideration to be given to one parent because of his or her role as a primary caretaker, it would have provided for this in the act.
This is not to say that the role of primary caretaker should not be considered at all. The Superior Court noted that the primary caretaker doctrine was somewhat interwoven into the mandatory factors. Specifically, the following factors indirectly address who the primary caretaker was before the litigation: "The parental duties performed by each party on behalf of the child" and "the need for stability and continuity in the child’s education, family life, and community life." Thus, the considerations articulated by the doctrine are implicitly included in the new custody statute, but weighted consideration is not given to these factors.
Since the act states that additional weight must be given only to factors that affect the safety of the child, the Superior Court concluded that, "We simply cannot graft the judicially-created primary caretaker doctrine on to the inquiry that the legislature has established, and so we conclude that the primary caretaker doctrine, insofar as it required positive emphasis on the primary caretaker’s status, is no longer viable."
The Superior Court added the qualification that its conclusion should not be construed to mean that a trial court cannot consider a parent’s role as the primary caretaker when considering the enumerated factors. To the contrary, a trial court must necessarily consider the parents’ respective roles under at least two of the factors. M.J.M. only means that it cannot necessarily give weighted consideration to the primary caretaker of the child.
M.J.M. is consistent with the reality that the parent who primarily took care of the child in the past may not necessarily be the parent who should primarily take care of the child going forward. Indeed, when parents separate and divorce, they often re-evaluate their priorities, and the parent who perhaps worked long hours during the marriage may be willing to work less to spend more time with the children. A parent who worked primarily during the marriage to support the family should not be penalized for doing so and should have the same chance at obtaining primary custody of the children after separation or a divorce.
Invalidating the primary caretaker doctrine also encourages the trend of shared custody schedules, which promotes equal access to both parents. If nothing else, abolishing the doctrine invalidates a small body of case law that was seemingly inconsistent with the new revisions to the act. •
Andrew D. Taylor is a partner in the family law practice group at Weber Gallagher, where he represents individuals in all matters of divorce, support and child custody