Shared Custody: Presumed to be in the Child’s Best Interest, Perhaps for Some?

February 8, 2019
Holly S. Filius

Gone are the days of the Tender Years Doctrine where it was presumed that a child under a certain age (3) should be in the primary care of his or her mother as a mother is best able to meet the needs of a child from birth to 3 years. The so-called Tender Years Doctrine fell by the wayside in the law several years ago, but many believe the theory behind it holds true. That is, by anatomical default, a mother has a more significant bond with a child born to her and from her body thereby placing her in a better position to continue that bond and meet a young child’s needs. However, that thinking to many people is antiquated and the role and importance of a father’s bond with their children at the moment of birth going forward has gained popular consideration and is now being recognized by courts.

Some conservative counties in Pennsylvania tend to lean towards a preference of primary physical custody with a mother, with fathers having varying degrees of partial physical custody rights. However, many progressive counties and even counties where one would believe the bench had more conservative leanings are now finding shared custody to be more and more appropriate in most settings. In fact, some counties start with the proposition that shared custody is the automatic default until and unless a parent is able to prove that this arrangement is not in a child’s best interest. While Lancaster County has not proclaimed a particular position as strongly as that, several of the Lancaster County Family Law Judges have shown in their rulings that they believe shared custody to be automatically in the best interest of a child when there are two equally capable parents who are similarly situated to care for their child, meet that child’s reasonable needs, and ensure a safe, loving, stable, and appropriate home life.

Some may say that starting with a shared custody default assumes too much and the factors prescribed by the law dictate that an individual analysis of each parent’s home and situation should be considered and only after that consideration, should shared custody be an option. Either approach begs the question of what does a Judge do with a child at separation if parties are unable to agree. Often, Judges will resort to the formalization of a status quo that was established during the parties’ marriage or relationship. Others will put into place a new normal for the parents in consideration of the circumstances that exist at the time of separation. Right or wrong, it is clear that current trends reflect that shared custody is much more acceptable and even preferred by several of the Lancaster County Court of Common Pleas Family Law Judges and in many other counties in Pennsylvania.

I am often asked why one party’s case is decided differently than another’s, not only from another county in Pennsylvania, but by different Judges in Lancaster County. My answer always remains the same: There are no two family law situations that are exactly the same and no two counties or Judges that are the same. The law requires a specific analysis of a family’s particular circumstances in custody, divorce and support. So, what your neighbor or your cousin or your sister’s best friend’s result was will never be your result. Parties contemplating separating, whether married or not, should speak with an experienced family law attorney to understand the ramifications of that separation, both financially, emotionally, and with regard to their children.

Holly Filius is an attorney at Russell, Krafft & Gruber, LLP in Lancaster, Pennsylvania. She received her law degree from Widener University School of Law and practices in a variety of areas, including Family Law.