Is there a presumption for equal shared physical custody in Pennsylvania and New Jersey?

A: No. Both States use the best interest of the child to determine a custody schedule. However, in practice, many Judges start with the position – Why should one parent have more or less than 50/50 custody and convince me accordingly. In Pennsylvania, a relatively new custody statute provides specifically for numerous factors that a court must review and state on the record the analysis of those factors when determining a custodial decision. The factors can be found at 23 Pa.C.S.A. §5328(a). A parent and their attorney in Pennsylvania must be sure that they present all of the factors that are enumerated in their case so that a judge can properly comment on each and every factor as this is now a requirement for the Appellate Courts. 

In New Jersey, similar factors are enumerated at N.J.S.A. 9:2-4(c). These best interest factors must be presented to the Court for their consideration and then a determination will be made as to what custodial schedule would be in the child or children’s best interests. A factor that used to be more important for the Court was who was the primary caretaker of the child or children. Today, courts are more concerned about which parent will promote the child’s relationship with the other parent. While the historical caregiver is still a factor, it may not carrythe same amount of weight that it would have years ago. Likewise, the weight of the different factors changes from year to year and Judge to Judge.

David L. Lavdov is a partner and co-chair of the Family Law Group at Obermayer Rebmann Maxwell & Hippel LLP. He focuses his practice on divorce, including custody, child support, equitable distribution, abuse and domestic relations. David can be reached at (267) 675-4976. View his firm website here www.obermayer.com.