Is it Time to “Presume” Shared Physical Custody?

The 2025 legislative session in Harrisburg begot a proposed amendment of the Pennsylvania Child Custody laws to rewrite what factors a court should consider in deciding how to allocate custody where parents no longer live together. The law was amended less than a year ago in an effort to address the tragic death of a child caused by a violent parent.

The new House Bill No. 378 seeks to re-organize and better define the custody factors courts are to consider. Last week, Rep. Jamie Flick from Williamsport offered an amendment requiring courts to presume that legal and physical custody of minor children should be shared. The amendment was presented to the House of Representatives which narrowly defeated it 103-99 with members of both parties crossing the aisle.

Flick indicated to news outlets that his amendment was “personal” in the sense he sought but never secured equally shared custody in his own domestic setting. His reasoning is echoed by many people in the system who see “partial” (less than 50% physical custody) as a kind of second class citizenship.

The perspective is undeniable. Clients in these conflicts commonly walk out of court asking “What did I do wrong?” The lawyer’s response is not consoling. “Judge just thought one parent should have primary physical custody.”

Permit a paragraph on the topic of how the law evolved. Until the mid-19^th century, children were the property of men; plain and simple. But as the industrial revolution evolved and women took on primary domestic responsibilities, there was a fairly rapid shift in favor of children being raised by “mom.” By the time I was licensed in 1980, it was men who were marginalized as parents. It was fairly common for fathers to be told they could “see” their child for half a day Saturday or perhaps overnight to Sunday afternoon.

But the economy changed. Now both parents are working and need employment to support the family lifestyle. And, candidly, fathers were stepping up; attending practices, parent-teacher conferences, medical and dental appointments. Older judges still seemed to cling to “Mom is best” thinking but as women became judges, many saw merit in shared physical custody; often because they needed their own help from their own spouses to make work/life balances work. Over time men received more and more custodial time and in many Pennsylvania counties, there is an unspoken presumption of joint physical custody even in some highly conservative counties.

So why not adopt Representative Flick’s amendment?

Answer: Because it is often not in the interest of the kids.

How can that be? 50/50 is inherently “fair.” But since we gave up on “Man owns the child” thinking in the 1850s the standard has always been not “fair to the parents” but “in the best interest of the kids.” Truth is that some parents are just better at the mechanics of parenting. They recall that Tuesday is cookie day and that the third grader needs to bring in a dozen or so. They never miss appointments and always check to make certain homework is done before the Ipad is fired up or kids go to bed. That’s a skillset to be celebrated and it makes life much easier for the kids. Every parent aspires to have these skills, but every lawyer has represented a parent who forgot the bus, failed to fill the ‘script or to missed the fact that a skipped day of an antibiotic regimen is a loss of down in the battle against infection.

That’s the hard side of parenting skills. More challenging to judges is the soft stuff. Almost all of us like power. And many of us like to think we are the better parent. Power dynamics that erode marriages often play out a second inning in custody fights. Yes, maternal grandma scored four seats for “Harry Potter and the Cursed Child” in New York next month but the kid has softball practice and the team is counting on her. The child is agoraphobic, but we got tickets for a hot air balloon ride. At the risk of sexual stereotyping, men tend to underestimate risks while women can be unduly risk averse. Men also like to overestimate their capacity to balance career/job needs with the needs of their kids. Lest I sound sexist, as women rise to more important positions in the workforce, they, too, like to see themselves as having more capacity than experience suggests.

Again, we need to re-focus. If the goal is “fairness” to the parents a presumption of 50/50 makes sense. If the goal remains “best” parenting, the presumption needs to be measured against the real capacity to deliver what kids need and to elude battles over “power” in support of “needs.”

My thought on this is for every custody case to start with an initial order that presumes 50/50. But within 60-90 days, there needs to be a serious review of whether it is working for the kids, in contrast to assuaging the aspirations of their parents to “share.”  All too often the reach of shared custody exceeds the grasp of day to day children’s needs. A presumption is not a bad thing. But it needs to be a real thing. The capacities and the willingness of parents to share will become evident quickly when confronted with real life experience.

One last thought relates to support. Despite what people think, no one grows rich on guideline support. Clients love to focus on getting 40% custody because it yields a discount on the support obligation. I would tell clients that shared physical custody was the most costly custody arrangement because each parent needs to provide a lot of duplicate needs. Sad to say, but often the motivation to secure shared physical custody is sourced to a perceived discount in support. I’ve seen litigants spend thousands litigating custody to save a few dollars in child support.