Pennsylvania Custody Law – Do Courts Favor Mothers? By a Newtown Custody Lawyer

Kevin M. Zlock
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Kevin has been named a Top Family and Divorce Attorney in Bucks County for 2011-2015

There are many misconceptions about custody cases in Pennsylvania, including Doylestown and Newtown.  One of the common misconceptions is that Courts favor the mothers in child custody cases, and thus the mother will get primary or sole custody of a child.

In addition, it’s a common misconception that mothers know how to take better care of children, especially when children are young, and therefore, mothers should get custody when the child involved is a baby or toddler.   This is simply not true. 

Pursuant to Pennsylvania custody law, a mother does not have an advantage over a father.  In fact, Pennsylvania is a gender neutral state.  Title 23 Section 5328. Factors to Consider when Awarding Custody provides:

(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.

In the past, there used to be a doctrine called the “tender years doctrine” which did give deference to mothers during the infancy of a child.  That doctrine has since been abolished.

What Courts Consider in Newtown and Doylestown Custody Cases

If gender does not determine custody, then what does?  Rather than gender, Pennsylvania Courts must consider sixteen factors when determining custody.  These factors are laid out in Section 5328(a) of Title 23.  To see all 16 of these factors, see How is Custody Decided in Doylestown and Newtown Custody Cases?

It is important to note that ALL 16 factors are considered, and one factor does not have more weight than another factor.  However, for purposes of this article, we will only be discussing one of them.

Parental Duties Performed by Each Party on Behalf of the Child

One of the factors that may impact which parent gets custody is the role each parent plays in raising the child. For instance, let’s talk about a situation in which the mother is a stay at home mom, and the father is the bread winner who works long hours.  The mother provides transportation and takes the kids to and from school.  The mother also takes the kids to their after school activities, helps them with their homework, cooks dinner and takes care of other day to day routines involved in taking care of the children.  The father may only see his children for an hour a day and on the weekends.  In such a case, the Court may find that it is better for the mother to have primary custody of the children since the father is not at home to perform all the day to day routines due to work.  Likewise, if the father was the “identifying parent” for the children, then they would have an advantage in the custody determination.

The above example may be why people think mothers usually win custody.  However, it has nothing to do with gender.  If the situation was flipped, i.e., the father is the stay at home parent and the mother is the bread winner of the family, then the Court may find that the father should have primary custody.