Author: bretrgoldstein@gmail.com

When a Court calculates child support in Pennsylvania it considers the amount of income both parties generate.  The monthly incomes are calculated and then compared using a chart generated by the legislature.  The incomes are plugged in along with the number of children and a general amount of child support is determined from the chart.  There are also numerous other factors and credits that go into the determination of the final amount which include the amount of custody, medical insurance credits and other payments.  However, how is a fair child support amount calculated when one party either refuses to work, or there is an allegation that the part is earning an income much less than their commensurate earning capacity? 

Child support is a shared responsibility, both parents are obligated to support their children “in accordance with their relative incomes and ability to pay.” Reinert v. Reinert, 2007 PA Super 170, 926 A.2d 539, 542 (Pa. Super. 2007).  The important concept here is how the Court fairly determines income potential. 

“Ordinarily, a party who willfully fails to obtain appropriate employment will be considered to have an income equal to the [party’s] earning capacity.” Pa.R.Civ.P. 1910.16-2(d)(4). The determination of a parent’s ability to provide child support is based upon the parent’s earning capacity rather than the parent’s actual earnings. This includes the type of jobs and earning capacity that the parent has demonstrated in the past, education and vocational training.  See Kelly v. Kelly, 430 Pa. Super. 31, 633 A.2d 218 (1993).  The bottom line is that if a Court is presented evidence that demonstrates that an individual’s income is below their actual earning capacity, the Court is within its discretion to base an award on an imputed income.  An example of such a situation would be a doctor or lawyer deliberately earning less money to artificially lower income capacity by working in a McDonalds. 

Laws v. Laws, 2000 PA Super 248, 758 A.2d 1226, 1229 (Pa. Super. 2000).  As stated a party’s age, education, training, health, work experience, earnings history, and childcare responsibilities are factors that shall be considered in determining earning capacity. Id. (citing Pa.R.Civ.P. 1910.16-2(d)(4)).  We have also stated, however, that in appropriate cases, the “earning capacity of a parent who elects to stay home with a young child need not be considered.” Reinert, 926 A.2d at 543 (citing Kelly v. Kelly, 430 Pa. Super. 31, 633 A.2d 218, 219 (Pa. Super. 1993)).

A wife’s willful lack of full-time employment can result in a Court imputing income to the wife.  In Bogdon v. Bogdon, 2018 Pa. Super. Unpub. LEXIS 327, 2018 WL 700823, the wife had five years to become employed in a full-time position.  Wife was awarded alimony for a period of one year.  The Court stated that rather than finding work commensurate with her previous employment, Wife chose to become employed in a part-time position where she earns $11.35 per hour.  An earning capacity of $30,000 per year comes down to approximately $15.62 per hour for forty hours per week.  Given Wife’s age and employment history, it is not unreasonable to expect that she will be able to find such a position.  The Court based upon the wife’s failure to find work commensurate with her work capacity when she had time to do so should result in an imputed work capacity. The Court awarded a $30,000.00 work capacity to the wife for the purposes of Child Support payments. 

Thus, the reality is that if an individual earns less than their past income for what the Court deems poor reasons, it can be argued that an earning capacity can be imputed to that individual.

 

The calculation of child support is a thorny issue.  One of the elements of the calculation of child support is which parent pays for the child (or children’s insurance).  Typically, the parent who pays for the insurance coverage gets a credit – either an addition or deduction, depending on if they are the party owed support.  If one party remarries or gets into a relationship where a third party pays for the insurance coverage for the child, how is that credit distributed?  The pertinent part of the Pennsylvania Rules of Civil Procedure §1910.16-6(b) provides for the payment of health insurance coverage, in relevant part, deals with this issue as far as calculation as follows:

 

(1) A party’s payment of a premium to provide health insurance coverage on behalf of the other party and/or the children shall be allocated between the parties in proportion to their net incomes, including the portion of the premium attributable to the party who is paying it, as long as a statutory duty of support is owed to the party who is paying the premium. If there is no statutory duty of support owed to the party who is paying the premium, the portion attributable to that person must be deducted from the premium as set forth in subdivision (2) below. Premiums paid by a party to whom no duty of support is owed to cover himself or herself only and that are not necessary to cover the other party or a child as part of a support order shall not be apportioned between the parties. If health insurance coverage for a child who is the subject of the support proceeding is being provided and paid for by a third party resident of either party’s household, the cost shall be allocated between the parties in proportion to their net incomes. If the obligor is paying the premium, then the obligee’s share is deducted from the obligor’s basic support obligation. If the obligee is paying the premium, then the obligor’s share is added to his or her basic support obligation. Employer-paid premiums are not subject to allocation.

(2) When the health insurance covers a party to whom no statutory duty of support is owed, even if that person is paying the premium as set forth in subdivision (1) above, or other persons who are not parties to the support action or children who are not the subjects of the support action, the portion of the premium attributable to them must be excluded from allocation. In the event that evidence as to this portion is not submitted by either party, it shall be calculated as follows. First, determine the cost per person by dividing the total cost of the premium by the number of persons covered under the policy. Second, multiply the cost per person by the number of persons who are not owed a statutory duty of support, or are not parties to, or the subject of the support action. The resulting amount is excluded from allocation.  Pa.R.C.P. 1910.16-6(b).

Maher v Maher, 575 Pa. 181, 835 A.2d 1281 (Pa. 2003) holds that when an insurance policy is purchased covering multiple members of the household, the spouse does not get a credit for the purposes of child support payments, for that portion of the insurance policy that does not apply to the children.  The portion of the insurance policy that applies to the child results in the credit – but not that portion which includes the ex-spouse.  If it is difficult or poses an issue determining the severability of the insurance policy, then Pa.R.C.P. 1910.16-6(b)(2) applies as noted above.  The simple calculation requiring dividing the cost of the policy by the number of individuals covered and the resulting amount being the total credit, is used.  More specifically, the child support credit is reduced or augmented by the amount of the monthly premium cost attributable to the child.

 

The question of interstate jurisdiction in family matters has been for the most part settled by statutory law.  The National Conference of Commissioners on Uniform State Laws suggested and created the legislation which came to be called the Uniform Child Custody and Jurisdiction Enforcement Act. The law was drafted in 1997 and became effective in Pennsylvania in 2004.  One of the main purposes of the UCCJEA was to clarify the exclusive, continuing jurisdiction for the state that entered the child custody decree. The UCCJEA provides, in relevant part, that: Except as otherwise provided in section 5424 (relating to temporary emergency jurisdiction), a court of this Commonwealth may not modify a child custody determination made by a court of another state unless a court of this Commonwealth has jurisdiction to make an initial determination under section 5421(a)(1) or (2) (relating to initial child custody jurisdiction) and: (1) the court of the other state determines it no longer has exclusive, continuing jurisdiction under section 5422 (relating to exclusive, continuing jurisdiction) or that a court of this Commonwealth would be a more convenient forum under section 5427 (relating to inconvenient forum); or (2) a court of this Commonwealth or a court of the other state determines that the child, the child’s parents and any person acting as a parent do not presently reside in the other state.

 

In V.C. v. L.P., 2018 Pa. Super. LEXIS 82, *7-8, 2018 PA Super 21 the two parties who had the child were not married.  The maternal grandmother filed a petition in New York in 2010 seeking custody and a final custody order was issued by the New York Court in 2012 and another order in 2016.  Interestingly the mother lived in New York, the Father lived in Hawaii and the grandmother lived in Pennsylvania. 

The Mother in 2017 filed a Petition in Pennsylvania asking the Pennsylvania Court to modify the New York custody order.  The mother was at the time a resident of New York and the Grandmother was a resident of Pennsylvania and had custody of the child.  After the filing the New York Court informed the Pennsylvania trial Court that the New York Court retained jurisdiction.  The New York Court requested a conference which the Pennsylvania Trial Court which the Trial Court refused to attend. 

On April 10, 2017, the Trial Court issued an interim custody order. The Maternal Grandmother moved to dismiss Mother’s custody complaint for lack of subject matter jurisdiction. In May of 2017, the trial court denied Maternal Grandmother’s dismissal motion. In June 2017, the trial court found Maternal Grandmother in contempt of the April 10, 2017 order and imposed a $5,000.00 sanction.

 

Thereafter, Maternal Grandmother filed a timely notice of appeal and this Court quashed all portions of the appeal other than the challenge to the trial court’s contempt order. The New York court explicitly declined to find that it lacked exclusive, continuing jurisdiction over the parties’ child custody dispute or that Pennsylvania would be a more convenient forum. Moreover, as Mother still lives in New York, the trial court could not exercise jurisdiction under section 5423(2). Accordingly, the trial court lacked subject matter jurisdiction under section 5423. As the trial court also could not exercise jurisdiction under section 5424, it lacked subject matter jurisdiction to modify the New York court’s child custody order.  The Court thereafter quashed the actions of the Pennsylvania Court.

So, the bottom line here is that if another state, principality or commonwealth has jurisdiction of a case – which is determined by the first Court to issue a custody determination or order, that state must agree to relinquish jurisdiction in order to transfer jurisdiction to another state’s court.   

I get asked what it is like to go to Custody Court in Philadelphia County fairly often.  I am going to try to describe the experience and proffer some opinions about the situation.  Please note that these opinions are my impressions and determinations based upon experience.  They are the impressions of one counsel and others may have significantly different perceptions.  So please have some perspective on what I am saying. 

Typically, one of the parent’s files something having to do with custody.  Most often it is a request for modification as one parent believes that their child’s circumstances need to be changed.  Obviously one of the parents believe that they should have greater control and / or greater time with their child.  So, you file documents with the Court and if you have done so properly and served it on the other party property, you typically get something in the mail that schedules a hearing of some sort. 

Different petitions obviously have different results but most often you are assigned to a custody master first.  The hearing notice tells you to go to the shiny new building on 1501 Arch Street, Philadelphia, PA 19102.  You are asked to go through security.  You wait in the line and go through a metal detector and your bags are x-rayed and searched.  Please do not be stupid enough to have illegal substances or weapons with you as the police WILL find them and frankly it won’t look good in front of the custody master or Judge.  You go through the scanners and then take the elevators to the floor you are directed to attend. 

You go through the elevator doors and go into a room that is large and filled with plastic and metal seats and you will be asked to check in with someone and fill out some forms with basic information about where you live, your date of birth and the name of your case along with some other identifying information.  You should bring your hearing notice with you as the police and the other Court workers are helpful.  The bottom line here is that you should treat them with respect.  If you act respectfully to them, they will treat you with equal respect.  This holds true of almost every aspect of this process.  If you get angry you can expect less help and less cordiality. 

You fill out the forms and they will ask you if you have an attorney.  Many people do not have counsel because they can’t afford it or don’t feel like they need counsel because they think the situation is obvious.  It isn’t.  Also, frankly, much of what you likely think is important, simply isn’t.  If you can afford counsel – even just speaking to one to get advice, it is worth the money.

Now your case is usually on a list.  If both parties have counsel, it has been my experience that you get put on the back of the list, not the front.  Why? You ask.  Isn’t it less respectful to take the people who have counsel and make them wait?  Here we fall into opinion.  It is my impression that the Court does this because the Court expects counsel to discuss the case, control their clients and reach some sort of an agreement.  The extra time outside waiting is meant to facilitate the chances of the parties coming to some agreement. 

If you can’t agree eventually you are brought into a small courtroom with a place for the mediator that looks like the Judge’s seat on TV.  There are also two long rectangular tables where you will be told to sit.  The master will walk into the room and ask for basic information from the parties.  He or she will ask about addresses and try to get a feel for the parties based upon both the documents filed and his or her perception of the parties.  Try to be calm and collected.  The hearing is informal, but the Master may adhere to the rules of evidence and limit the evidence you try to present and the statements you make.  The one major perception (again we have an opinion coming) is that the Master tends to try to determine if the requests for custodial change are based upon firm evidentiary grounds and also tries to determine if one of the parties is being unreasonable.  The person who is being unreasonable in the perception of the Master usually does not come out of the hearing well.  The hearing usually lasts about a half hour and the Master makes a recommendation.  The Master does not tell the parties what he or she has decided and provides these opinions to a Judge who will then enter an Order.  Sometimes the Orders come out quickly and sometimes they come out weeks and weeks later. 

I will cover Judicial hearings in a later post. 

 

One of the most important questions that parents typically ask during a divorce and custody battle is how to behave in order to obtain more custody of the children.  As is mentioned repeatedly both on this blog and on the internet, Courts in the Commonwealth of Pennsylvania use a best interests of the child standard along with the sixteen custody factors which we have mentioned earlier.  The custody factors are as follows:

§ 5328.  Factors to consider when awarding custody.

(a)  Factors.–In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:

(1)  Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

(2)  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.

(2.1)  The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).

(3)  The parental duties performed by each party on behalf of the child.

(4)  The need for stability and continuity in the child’s education, family life and community life.

(5)  The availability of extended family.

(6)  The child’s sibling relationships.

(7)  The well-reasoned preference of the child, based on the child’s maturity and judgment.

(8)  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.

(9)  Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.

(10)  Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.

(11)  The proximity of the residences of the parties.

(12)  Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

(13)  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.

(14)  The history of drug or alcohol abuse of a party or member of a party’s household.

(15)  The mental and physical condition of a party or member of a party’s household.

(16)  Any other relevant factor.

(b)  Gender neutral.–In making a determination under subsection (a), no party shall receive preference based upon gender in any award granted under this chapter.

Obviously knowing these factors and making sure that a party adheres to them is a good part of achieving increased custody – but there are some nuts and bolts things that you should be aware of which generally apply to most Pennsylvania Courts. 

First, most Courts would like to see joint legal and physical custody and in general (note “in general”) prefer a fifty – fifty custody arrangement between parents.  It is generally believed that it is important to promote the relationships of both parents with a child.  Most Courts will act to promote this despite some behavioral inequities.

Another very important concept that is extremely difficult for many parents to understand, is that an ex-spouse or other parent can be a difficult and cantankerous person who makes it hard to co-parent. Importantly unless this behavior can be demonstrated to have a direct negative effect upon the children, the behavior is much less important to the Court than to the parents.  In other words, your ex-spouse can be a “horrible human being” who is “mean” to you – but unless this nasty behavior effects the children, for the most part, the behavior does not matter very much to the Court.   Without delving into war stories, your ex can be a very adept liar – but if those lies do not hurt the children and frankly only hurt and upset you, the lies don’t matter much – even to a Court.

What matters to a Court is whether you allow access to the child to your ex.  Who brings the child to school?  Who does the homework with the child?  Who takes the child to the doctor?  Who takes the child to therapy? Who provides time, stability and emotional support? The key issue here is which parent invests their time and effort into their children.  This does not have to be in terms of money spent – but time invested.  Be the individual who parents and you have the best chance of retaining, maintaining and or increasing custody. 

In L.M.S. v. M.S.S., 2018 Pa. Super. Unpub. LEXIS 51, the appellate Court issued a Decision which indicated that a child attending a pre-school nearer to the Mother’s residence was not an adequate reason to give more custody to the Mother than the Father.   The trial Court considered the section 5328(a) best interest factors.  The trial Court found that the factors weighed equally in favor of both parties, or did not weigh in favor of either party and despite this, concluded that Child’s best interests would be served by awarding Mother primary physical custody. The court placed emphasis on the fact that Child would soon be starting kindergarten and that it would be in his best interest “that he have the same routine on a daily basis as he moves into another phase of his life.”  The implication here is that the distance of the Father’s home from the school would interfere with this routine and stability.

Father appealed this Court Determination and argued that the trial court erred and committed an abuse of discretion by awarding Mother primary physical custody of Child simply because of the enrollment of the child into kindergarten. Father argued that there had been shared physical custody since the Child was an infant.   Father indicated that the evidence did not support the change in custody.  In support of his position, Father relies on R.S. v. T.T., 2015 PA Super 72, 113 A.3d 1254, 1260 (Pa. Super. 2015), in which this Court rejected the conclusion that a “Child’s entrance into full-day schooling requires that one parent must have primary physical custody so that Child may establish a routine.” R.S., 113 A.3d at 1260.

In R.S., the Mother filed a petition to modify the parties’ custody agreement. The mother requested primary physical custody because the child was entering elementary school and father filed a competing petition to modify custody.  The trial court held a hearing and entered an order granting the mother primary physical custody during the school year and shared physical custody over the summer months. Father filed a timely Notice of Appeal, arguing that the trial court erred in finding that “both parties agree that the current schedule requires the child to be driven in a vehicle back and forth too frequently and that time spent doing this is not in the best interest of the child.” The Appellate Court agreed that the Trial Court got it wrong.  They felt that because a child begins full time school, this is not a reason to change custody.   It should be noted that Father demonstrated that he would be willing to make accommodations necessary to get the child to school, there would be no reason to change custody.  Thus, R.S. was in support of Father’s argument. 

The Court also noted that the parents lived at different distances from the school – the Mother two miles and the Father nearly fifteen.  The Court also did not find that this distance was enough to determine that a custody change was necessary.  The Appellate Court reversed the Decision of the Trial Court and maintained Father’s custody time.

The bottom line here is that a child beginning school is not enough to base a custody change on – even if the argument is that such a change will benefit the child by establishing a stable schedule. 

Calculation of child support can be a very tricky subject in the Commonwealth.  This is because a Court can impute an earning capacity to an individual that is higher that their actual earnings, if the Court deems the actual earnings are below the individual’s actual earning capacity.  This concept gives the Court wide discretion regarding a determination if an earning capacity or a drop in earning capacity is the fault of the party, rather than the result of circumstances outside of the control of the paying party.

For instance, providing a silly but illustrative example, an orthopedic surgeon can’t simply quit his job and work at a coffee shop simply to lower income enough to merit changes in the support obligation.  In Miller v. Miller, 2017 Pa. Super. Unpub. LEXIS 4799 (Decided December 2017), the Court confronted the determination of whether the Court should impute income and maintain the prior support obligation or reduce the income level and thus reduce child support payments.

In Miller, the Father operated a masonry business.  The Court initially calculated the father’s income based upon his actual earnings at the time the support obligation was decided.  The father experienced a drop off in income and filed to have the child support modified downward based upon the reduction in his income.  The initial trial Court indicated that the original income which Father was earning when the support was originally calculating was what was going to continue to be imputed to the father and refused to modify child support:

“Father also requested a downward modification of his support payment because he was forced to close his masonry enterprise. He explained that he had to shutter his business due to his inability to pay vendors, satisfy mounting operating costs, and pay overdue taxes and unemployment compensation insurance. He obtained employment with a competitor earning $25.00 per hour. The conference officer discredited Father’s assertions, concluded that he voluntarily abandoned his masonry company to reduce his support obligations, and assigned Father an earning capacity that was identical to the income that he earned from his business. Accordingly, the conference officer issued an interim order that credited Father’s past mortgage payments against his support arrears, but did not alter the monthly support obligation.”  Miller v. Miller, 2017 Pa. Super. Unpub. LEXIS 4799, *2-3

The father appealed this determination.   The standard of review favors the trial Court heavily.  Basically, there must be a significant abuse of discretion by the fact finder or a Decision that violates the law or statutes.

The appellate Court concluded that the trial Court’s refusal to change their perception of the Fathers income was unsupportable.  The Court’s utilization of Father’s prior, exorbitant earning capacity instead of his modest actual earnings to calculate his income for support purposes was wrong and unsupported by the facts. Father argued that he no longer ran the masonry business and that the Court should not use earnings from that business to calculate his income. The fact finder rejected this as a reason for reducing the income capacity, somehow blaming the father for the reduction in income rather than external economic circumstances.  The father argued that he no longer could earn the same income that he did previously as the times had changed and that the amount of masonry work had dissipated such that his business was no longer viable given the economic circumstances.  The bottom line here is that the appeal Court believed that the reduction in income was not the fault of the father and suggested that the support obligation should be reduced and or a new trial should be held to review this credibility determination by the fact finder.

The law is clear that support obligations are determined by actual income and financial resources rather than earning capacity. Pa.R.C.P. 1910.16-2. (“Generally, the amount of support to be awarded is based upon the parties monthly net income.”). Indeed, earning capacity is reserved for instances where a party “willfully fails to obtain appropriate employment[.]” Smedley v. Lowman, 2 A.3d 1226, 1228-29 (Pa.Super. 2010).

The bottom line here is that if you have lost income due to economic or external circumstances – it is likely that the Court will reduce your support obligation.  Clearly if your income drop is something the Court feels you calculated, you may not be able to reduce your support obligation.

 

A parent can file a Petition for Counsel fees against a party opponent during custody litigation in the Commonwealth of Pennsylvania.  In order for a party to obtain counsel fees, the party must prove that the opposing party is obdurate, vexatious, repetitive or acts in bad faith in the judgment of the Court. 

In SB v. JB-S, 2015 Pa. Dist. & County Dec LEXIS 14135, the appellate Court upheld the determination of the trial Court which during litigation awarded counsel fees to the father against the mother.  In SB, the mother filed an Emergency Custody Petition alleging that the father had committed acts of sexual abuse against the parties’ daughter.  The Court during the litigation, learned that the mother had been charged by the police for making false accusations of sexual abuse in a criminal proceeding.  The initial hearing was continued for the mother to obtain an attorney and despite the continuance, the mother did not attend the second hearing, at which time evidence was submitted to the Court by the father. 

The Court also accepted evidence regarding the behavior which led up to the filing of the Emergency Custody Petition.  Apparently, the mother had argued with the father about how much help the young daughter needed to bathe.  The mother thought the father’s conduct in helping his daughter to bathe, was inappropriate and the mother accused the father of sexual abuse of their daughter.  The mother told the father that he was “twisted” and accused him of being sick.  The mother also fought with the girlfriend of the father regarding these issues.

The bottom line is that the Court found the father’s perception of events to be more credible.  Further, the Court made these decisions with the best interests of the child as the most important factor.  The Court felt that the mother’s accusations were false and the filing of her Petition was essentially an abuse of process.  Given these circumstances it is important that a party knows that the Court is not fond of false or evidentiarily unsupportable accusations and will award counsel fees on Petition if this is the case.  It appears that the mother’s censure by the criminal Court – indicating that the criminal accusations were false, had significant bearing on how the Court handled the determination to award counsel fees.

Obviously committing criminal activities and getting thrown in jail is not what anyone would call a good thing.  In matters of custody, it can be fatal to your case.  If you are away from your children for more than six months, you can be accused of abandonment of the child and the ex-spouse or other parent can try to take custody away from you.  Now, this cause of action using an abandonment argument does not always lead to success for the moving party.  The law in the Commonwealth gives incarcerated parties rights under the law regarding custody and child support.  If an incarcerated person can not pay his or her child support obligations the incarcerated party can claim a change of circumstances such that he or she cannot pay – their obligations can be changed or modified under the law on Petition for Modification to the Court.

In Plunkard v. Mconnell, 962 A.2d 1227 (2008), the incarcerated individual argued that the incarceration precluded payment of child support.  The incarcerated party filed a Petition to Modify from prison.  The child support master recommended that the child support payment obligation be ceased and that arrearages be waived.  However, although the Court indicated that incarceration merited a change in circumstances enough that child support should cease while the individual was incarcerated, the Court refused to remove the arrearages, reasoning that the individual should not financially benefit from incarceration where child support was concerned.  So when the parent got out the debt to his child remained. 

Thus, although incarceration can result in circumstances which cause the cessation of child support – generally this will only occur during the period of incarceration. 

Simply because one parent was the child’s primary caretaker during the child’s infancy, this does not act as the major lodestone of a Court’s custody determination.  Prior to the current iteration of the child custody factors which was established in 2011, the Courts often made determinations regarding custody based upon what was referred to as the “Primary Caretaker Doctrine.”  This doctrine stated that in cases where both parents are considered fit parents, the individual who took primary care (the most care in terms of time and actions) of the child or children should have positive consideration given during the weighting of custody determinations.  Commonwealth ex rel. Jordan v. Jordan, 302 Pa. Super. 421, 448 A.2d 1113 (1982).  The trial Court was no longer bound to follow this doctrine and instead could use the sixteen custody factors to make determinations regarding custody. 

The current statute indicated that all custody factors should be given consideration and the only factors that are more heavily weighted should be those affecting the safety of the child or children. 

Importantly in J.C. v. J.W., 2017 Pa. Super. Unpub. LEXIS 4033, the Court found that although the mother had for the most part been the primary caretaker of the infant during infancy, that the Court found that at present, both parents perform significant parental duties.  The Court was not obligated to favor the mother or disfavor the father simply because he had not participated in the care of the child in infancy as much as the mother.    The Court emphasized that a Court was free to note or consider a parent’s role as a primary caregiver – but this does not have to be the controlling or even the most important factor.  The Court is free to make its own determinations regarding the weight of custody factors depending upon the salient facts of any given case.

Thus, a mother who has for the most part cared for an infant child primarily, is not the lodestone of a later custody determination, especially if at the time of trial / hearing, both parties are performing significant custodial duties.