Holding hands

Presumptions in Custody – Proposed House Bill 1397

When I started practicing family law, specifically custody cases, 30 years ago it was unheard of for a father to have primary physical custody of the children. It was also unheard of for parents to share equal physical custody. Moms usually had primary custody and dads had one night during the week for dinner and alternating weekends from Friday until Sunday. It was generally assumed that this arrangement was in the best interest of the children.

I remember very clearly negotiating a Sunday overnight for a father in my earlier years because it was a rarity. This father wanted to have Sunday nights with the children to enjoy pizza and monopoly night. He wanted to spend that time with his children and bring them to school on Monday morning. I negotiated those terms for him, because for those particular children that was in their best interest.

Custody has significantly changed over the last 30 years as our societal norms have changed. Today, the best interest of the children may mean 50-50 custody or something close to that. It may mean the dad gets primary custody and the mom gets a little bit less time.  It may mean the mom gets primary custody and dad has less time.  However, it is always based on what the parents agree or what a court determines is in the best interest of the children.

There is no unwritten or written presumption as to who should have the children. Instead, sixteen factors have been set forth in the Divorce Code at Title 23 §5328.  These factors guide the courts when the parties cannot agree upon what is in the children’s best interest.

On June 24, 2019, the Pennsylvania House Judiciary Subcommittee for Family Law will hold a public hearing with regard to a significant proposed change in Pennsylvania’s custody laws.

Proposed House Bill 1397 removes the definitions “primary physical custody” and “partial physical custody” and replaces them with “equal parenting time.” The proposed Bill creates a presumption that there will be equal parenting time, which is defined as, “as close as practicable to 50% of time spent with each parent, but in no case exceeding 60% of time spent with either parent.”   

House Bill 1397 specifically states that “in any action regarding the custody of a child between the parents of the child there shall be a presumption, rebuttable by clear and convincing evidence that shared physical and legal custody and equal parenting time is in the best interest of the child. If a deviation from equal parenting time is warranted, the Court shall order a parenting time schedule that maximizes the time each parent has with a child, to the extent consistent with the child’s best interest.”

This means that in all custody cases, the Court is to presume that equal time with each parent is the way it should be. A parent who does not agree that a 50-50 custody arrangement is in the best interest of their children must prove their case by clear and convincing evidence, a high burden of proof. This is a dramatic change from current standards in which there is no presumption as to what the custody arrangement should be and decisions are made based solely on the sixteen factors.

We will watch the progress of House Bill 1397 and report any important developments.