The current issue of the Pennsylvania Lawyer ( a state bar association magazine) features attorney Mark Momjian’s article highlighting the raging debate over Representative Jamie Flick’s House Bill 1499. The bill would presume equally shared physical custody arrangements rather than the multi-factor presumptionless analysis which has been in effect for decades.
Nearly 40% of the people sitting in the Pennsylvania House have sponsored the bill. For Flick, this has become something of a life’s mission as he feels his custody rights were trampled by mom-biased courts. A 50/50 presumption would not remove judicial discretion but it would simplify and speed a judicial process that can often consume years.
This train has been waiting to depart for a long time. Even most moms will acknowledge that since the 1980s most dads have truly stepped up their game in terms of providing both emotional and daily care for children. And, yes, there are fathers out there who excel in this regard. We are also finding more cases where mom is the career driven parent and dad is filling in more and more of the traditional daily parenting role (e.g., dental appointments, shots, school supplies, cupcakes for the class). In short, the pendulum is swinging in the direction of fathers and in some of our counties, the equal time presumption exists in fact even if not found in any statute.
A fair number of Pennsylvania judges would be happy to move toward a presumed split. As Mr. Momjian notes, custody cases can be bears. We all like to think we are the better parent and the doctrine of “Mother does best” lives deeply in lots of families and not just a few judges. Judges now have to parse through 11 statutory factors plus a bunch added where a parent wants to relocate away from the old stomping grounds with the kids. Lots of these cases are appealed, which requires a fast-track written opinion. In many instances, judges will quietly tell those outside the case that both parents might be suitable child custodians but that the animus between the parents is such that they won’t cooperate on any topic. Even good news can promote an angry response as in: “Our kid was hospitalized during Covid and the father barely came to the hospital. Now, he’s showing up at every tooth cleaning asking how he can help.” Old grudges never die and only rarely do they fade away.
As parents share larger blocks of custodial times, conflicts tend to multiply. A 1980s dad who got every Saturday from 9-4 really did not have time to make waves. But 60-40 and 50-50 arrangements require coordination that is real and when disputes emerge, a hearing in 3-6 months is no remedy. That’s when anger and retribution come into play and the children often suffer, especially when encouraged to take a side. While awaiting the proverbial day in court, parents tend to engage in self help and file multiple contempt petitions associated with any and every perceived breach of the prevailing order.
Courts were never designed to manage things. They decide who committed a crime, breached a contract or committed a tort. Did the event occur and what should be the consequence? As for whether Jennifer should play clarinet or drums, attend Mercersberg Academy or Hill School or be vaccinated for measles; the standard is not so clear. These decisions are only rarely about “best interests.” They are about who gets to decide. And that is where shared physical custody can become a weapon.
Another complication comes from the statutes. In the 1980s Pennsylvania amended the law to say custody orders could change whenever the best interests of the child was promoted. To do that, courts are tasked with specific review of eleven factors including “any relevant” information. This makes for lengthy hearings as few litigants can resist telling all in hopes of gaining advantage.
With or without a new law, we are on the march toward more and more shared physical custody. The elephant in the room is the proliferation of battles over mundane disagreements and trifling violations of prevailing orders. We don’t need a robed judge to decide every issue in controversy. We do need a system where someone neutral and responsive can respond to the daily battles over whether soccer is safer than football or whether mom’s two hour delay in returning the kids from vacation was intended or accidental and what to do about it.