On December 9, 2019, family lawyer Maria Cognetti testified before the House Judiciary Committee about the pitfalls in Pennsylvania’s proposed presumption of shared custody bill. As chair of the custody sub-committee of the joint state government commission on family law, she was invited to address Congress in Harrisburg, Pennsylvania. As an experienced subject matter expert, she was the perfect choice to offer testimony on the pitfalls and problems and pitfalls contained in Pennsylvania’s proposed presumption of shared custody bill.
Here is her testimony.
Representative Davis, Representative Helm, and other members of Congress: thank you for allowing us to be here. My name is Maria Cognetti and I’m a family law attorney in Camp Hill. I am the current and past chair of the joint state government commission, Domestic Relations Advisory Committee on Custody. I’m also a past-president of the American Academy of Matrimonial Lawyers, a past-president of the Pennsylvania chapter of same, and also a past chair of the Family Law Section of the Pennsylvania Bar Association.
The Presumption of Shared Custody is Almost Impossible to Overcome
For over 42 years my practice has been limited to family law. Most of my practice has been custody. Most of my custody clients are men, and I can tell you that my male clients would not like this bill. Good dads want and deserve the ability to ask for primary custody. And I, for one, have a number of dads who get primary custody. The proposed presumption of shared custody bill would basically take away their ability to do that, based on how hard the presumption is to overcome.
Interestingly, I noted that Mr. Poe, well known to many of us, states that his objective is to have equality between mom and dad when entering Family Court. He said that his case shows that shared parenting works. We agree that it works. We’re not saying it doesn’t. However, it works in the right case.
As many have pointed out, and Judge Clifford just emphasized, our statute already says that there shall be no presumption. That language presently gives parents equal footing while protecting the rights of the child and putting the child’s best interests first.
As Gail Calderwood [immediate past-chair of the Pennsylvania Bar Association (PBA) family law section] pointed out, and most of us have been stating, this bill is parent-centric. The bill should be kid-focused. This bill puts the parents’ rights ahead of what is best for the child.
Representative Helm acknowledged that sometimes there’s going to be an order that’s going to be other than shared custody. There might be a case where there would be primary. Absolutely. We know that’s true. However, that belief and understanding lead to the second huge problem – the burden of proof.
If you have not read Gail Calderwood’s entire written testimony, I would commend that to you. She covers the burden of proof and makes it very, very clear just how difficult, if not impossible, it is, to get past that burden. That’s not something we want in family law. That’s why you never see that burden of proof in family law.
It was also interesting to note that Matt Hale was here today from Kentucky. I finished our research on the 50 states and in fact, the only state that has a presumption anywhere near what is suggested by this bill in Kentucky. No other states have that type of presumption. When they use the word “presumption,” it’s where both parents agree there shall be a presumption. Neither parent is entitled to a preference, which is very similar to our statute. Custody is to be awarded without regard to the sex of the parent. This is similar to what we have, but there is no state other than Kentucky that has a statute even close to this one. If I’m correct, I believe Kentucky’s presumption has a standard of proof below what is suggested by this bill.
Why Partial and Primary Physical Custody are Still Necessary
There are other issues that really impact or are impacted by the presumption. On page two of the bill, the bill purports to take out partial physical custody and primary physical custody and that creates a huge void. I assume they were taken out because now, the assumption is that it will be shared. As representative Helm pointed out, and we would all agree, that’s not always going to be the case. You might have a parent who cannot actually get past the burden of proof, but we’ve now removed partial and primary, so there’s a huge void.
You have also taken out sole legal and sole physical custody; I’m not sure why, because they are rare cases. I’ve done this for 42 years and I probably have had three cases where my clients have gotten sole legal – but it does happen, and in those cases, it was really justified.
Presumption of Shared Custody Bill and Grandparents’ Rights
On page three, under types of awards, what the court is allowed to do, you’ve removed primary physical custody and partial physical custody. That creates another huge void. With regards to grandparents, these cases are normally about visitation or partial custody. Visitation now means supervised visits in the child’s home. Partial custody means something other than shared, it could be hours. Grandparents generally got partial, but now that partial custody is gone, grandparents will have to seek shared custody or supervised visitation. That probably removes 95% of the grandparent cases that would be out there.
Shared Custody Works – But Not Always
As Judge Clifford said, especially as Chair of the Joint state subcommittee, we really look forward to being invited to work with your committee. Nobody here thinks that shared parenting is bad. I think I can speak better than some, because of all my male clients. They are my work and I know that they want to be able to have primary custody. They don’t want to be [forced] to share when the tables are turned.
Because I do a lot of appellate work, I can tell you that the Superior Court has regularly, absolutely knocked down any opinion when there had not been a total review of [custody] factors. I never walk into a custody trial without having a memo which reviews the factors, because I want to remind the court they have to do that – but the court has to do it.
I [am undecided] regarding Judge Clifford’s comments about [whether] it’s best to have it on the record or not have it on the record. I don’t like the idea of [making parents wait for] a written opinion because there are cases in which you need an immediate decision. I think a combination of the two [would work best]: if the court deems it appropriate to make an immediate decision, then it must be followed up by the written opinion.
In closing, we want to make this work. Mary Doherty, past-chair of the AAML Pennsylvania Chapter and past-chair of the PBA family law section, and I chair two different subcommittees. I have a committed group of people like Judge Clifford, Judge Eaton, and Mary, who are on my committee, working very hard to try and make our current custody statute better. We welcome the opportunity to work with your committee.
The founder of Cognetti Associates in Harrisburg, for 42 years, most of Maria Cognetti’s family law practice has been devoted to child custody. In 2011, the Pennsylvania Bar Association gave Maria a Special Achievement Award for her work on Pennsylvania’s Child Custody Act. Maria is also the co-creator of the AAML and AFCC’s “Advanced Issues in Child Custody” national conference. www.cognettilaw.com
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