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Father's rights? Pennsylvania law says no presumption favoring mothers or fathers.

This post is in response to a question from a reader regarding what is the state of "father's rights" in Pennsylvania.

In Pennsylvania, it is true that in the past there was a legal principle called the "tender years doctrine" which essentially presumed that a mother was entitled to custody of her child over the father, particularly if the child was of "tender years" i.e. quite young.  This "tender years doctrine" has since been declared invalid in Pennsylvania insofar as it created a presumption in favor of mothers over fathers.

The general rule for how a court is to decide a child custody dispute in Pennsylvania is set by statute:
Award of custody, partial custody or visitation, 23 Pa.C.S.A. § 5303

(a) General rule
(1) In making an order for custody or partial custody, the court shall consider the preference of the child as well as any other factor which legitimately impacts the child's physical, intellectual and emotional well-being.
(2) In making an order for custody, partial custody or visitation to either parent, the court shall consider, among other factors, which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the noncustodial parent and the child.
(3) The court shall consider each parent and adult household member's present and past violent or abusive conduct which may include, but is not limited to, abusive conduct as defined under the act of October 7, 1976 known as the Protection From Abuse Act.


A remnant of the "tender years" doctrine remains in that a substantial factor in determining child custody is which parent is the primary caretaker of the child when the child is quite young.  However, there is no legal presumption that the primary caretaker should be the mother.  Rather, that role could be filled by either parent.  If there is a perception that this factor makes the legal system tend to favor women, it is more likely due to a greater number of women exercising the role of primary caretaker than men.  In my 20 years of legal practice, however, I have worked on cases where the primary caregiver was the father.  In any case, while the role of primary caretaker is important, it is not necessarily the only factor for deciding a case.  In particular, as one opinion noted, in addition to the quantity of care, a court must also consider the quality of care provided by the primary caretaker.  Klos v. Klos, 934 A.2d 724 (Pa.Super. 2007).

Other important factors that the court should consider in awarding child custody include:
• whether a child will have greater educational opportunities with one parent than the other;
• financial circumstances of the parents;
• benefit of keeping a child together with siblings or half-siblings;
• proximity and availability of grandparents and other relatives (when parents do not live near to each other);
and other factors as well.

Again, to reiterate, it is the law in Pennsylvania that there is no presumption in the law in favor of either mothers or fathers simply by being the mother or father.  Rather, judges are required to make decisions based on the facts presented regarding the relative fitness of the parents and to make an award of custody that is in the best interest of the child.

Readers should not solely rely on this note but should consult with a competent attorney licensed in their state. You can also find more information in my firm's websites on Family Law and Wills and Estate Planning and Administration and Social Security.

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