Some Positive Changes to Pennsylvania Custody Law

Around the country, states continue to tweak their custody laws and some consider making big changes.  Alabama and Minnesota, for example, have bills pending in their legislatures that would establish equal parenting post-divorce unless a showing of parental unfitness were made or the parents agreed to another arrangement.  Iowa is considering changing to joint custody in the case of divorce or separation.

Here’s an article about the more modest approach taken by Pennsylvania (The Mercury, 4/2/11).

Substantial changes to Pennsylvania’s child custody laws went into effect on Jan. 24. If you have children and are separated or divorced — or in the process — there’s a good chance your custody case could be impacted. The good news is that while some of the changes are a possible cause for concern, the majority are smart, positive, and long overdue.

The causes for concern include the fact that judges must now consider whether anyone in the child’s household has been convicted of a long list of criminal offenses.  In the custody case, either parent can request a criminal background check on anyone in the other household.  That means Mom’s new boyfriend; it also means his teenage daughter; if someone moves back in with their parents or anyone else, anyone in that household can become the subject of a criminal background check. 

Haven’t I mentioned before something about the breakdown of families opening the door to greater and greater governmental intrusion into our private lives?  Yes, I believe I have.

Now, some better changes: For the first time, judges cannot presume that custody should be awarded to a particular parent based on gender (e.g., they cannot presume that younger children are better off with their mother, or fathers are better suited to raise boys, etc.). This seems obvious, but this language has never before been in the custody statutes.

That’s obviously a good thing, for the simple reason that it enshrines in black-letter law that mothersper se aren’t to be preferred over fathers for any reason.  How much effect it will have on court orders remains to be seen, but I’d put money on it’s being negligible.

That’s because I seriously doubt many judges consciously discriminate against dads.  They hold certain pre-conceived biases and don’t really question them.  Chances are, they don’t even know they have them.

I think this because, over many years of growing awareness of fathers’ value to children, actual custody orders have changed barely at all.  For example, in 1993, the U.S. Census Bureau reported that 84.2% of custodial parents with child support orders were mothers.  In 2008, that number had plummeted to 83.6%.

My conclusion that the non-discrimination law won’t make much of a change is bolstered by the next set of “good” changes.

For the first time, there are specific enumerated factors a judge must consider in determining what constitutes “best interests” of a child. For example, a court must consider past or present abuse by anyone in a parent’s household, which parent performs the parental duties, the availability of extended family, the preference of the child (based on maturity and judgment), whether one parent has attempted to alienate the child against the other, how far apart the parties live, the level of conflict between the parties, and any history of drug and alcohol abuse by either party or anyone in the household.

“Which parent performs the parental duties” is the key phrase.  As sure as the sunrise, “parental duties” will be defined in judge’s minds as hands-on childcare, i.e. the daily feeding, clothing, bathing, strolling with, reading to, etc. of which mothers typically do the lion’s share. 

What won’t be considered parental duties is earning the money to allow Mom to stay home most of the time and do all those hands-on things.  Such at any rate is my prediction.  I hope I’m proven wrong, but I doubt I will be.

Several times recently, I’ve referred to an article by W. Bradford Wilcox, sociologist at the University of Virginia.  It’s a sobering look at how mothers and fathers actually divide up their time and what their aspirations are.

Overwhelmingly, mothers with children under the age of 18 would prefer to not work full-time.  And they don’t.  Some 75% of households with children under 15 have a man as the chief breadwinner.

Those facts stand in stark contrast to the Brave New World narrative we often see in the communications media.  Just last week I read a piece in the Huffington Post extolling the amazing rise of the Stay-at-Home-Dad.  That would be interesting if it had a firm basis in fact, but it doesn’t.  Wilcox shows that, as of 2008, there were about 140,000 SAHDs in the whole of the U.S.  That’s compared with over 5.3 million moms who stay home to do childcare.   

So, on one hand Pennsylvania sternly warns judges not to grant custody based on the parent’s sex, and on the other, it tells them to consider what mothers do for their children, but not what dads do in deciding custody.  Admittedly, there’s nothing in the new law that prevents a judge from honoring Dad’s earnings equally with Mom’s diapering.  But they haven’t done that so far and I see nothing to indicate they’ll start now.

It’s a slow process, but gradually states are taking notice of the need children have for fathers, both during and after marriage.  The changes to Pennsylvania law take only baby steps in that direction.  Still, the tide of change is moving toward greater parental equality.

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