Significant weight is often given to parents considered to be the caretaker for a child. Once a custodial schedule is established, the parent with partial and not primary physical custody often feels that, barring dangers to the health and welfare of the child, it is impossible to reverse the situation and become the primary custodial parent. Recent case law, however, has shown that the assumption that the primary caretaker of the child will always succeed in a custody action is an incomplete view of the “primary caretaker doctrine” and that the “positive consideration” the courts give to parents under the “primary caretaker doctrine” does not always result in that parent retaining primary physical custody. The recent Superior Court case Gianvito v. Gianvito, (2009 PA Super 1008) illustrates that the primary caretaker doctrine encompasses not only the day-to-day care of the child, but also evaluates the quantity and quality of the time spent with the parent at the time of the hearing, rather than in the past.

The most interesting aspect of the Gianvito, however, is that a non-custodial parent, the father, was able to obtain primary physical custody in a situation where the court readily admitted that the primary custodial mother, was a fit and loving parent. This is not a case where the negative attributes of one party bolstered the other parent’s case, instead, the Gianvito case illustrates how the court is able to make a significant custodial change, despite the absence of any evidence suggesting that the custodial parent is not a suitable or loving parent. The June 2009 opinion in Gianvito highlights the Courts’ willingness to reward a party for making the child’s interests their highest priority and for recognizing the child as being the most prominent aspect of their life.

In this case, the court recognized that Father modified his work schedule to maximize the time he had available to spend time with the child, though it increased his work commute, he and his fiance purchased a home closer to the child, he sought to take the child to medical appointments, and he participated as a parent helper for the child’s daycare class. The court recognized Mother’s skills, nevertheless, they viewed the decisions she made in her life such as where she lived, her career, and her use of daycare for the child, as being motivated by her needs and goals, rather than what was best for her child’s continued development and growth. Her motivations were not criticized by the court, but they were distinguished from Father’s motivations for making similar decisions.


Father’s decisions clearly indicated that he made the child a priority, even if it made certain aspects of his day-to-day life more inconvenient or burdensome. Mother, meanwhile, made decisions to maximize the ease with which she could pursue her personal goals and accommodate her fiancé’s living arrangements. The weight given to Father’s efforts exceeded the “positive consideration” Mother received based on her role as the primary caretaker. The quality of the time Father made for the child was considered superior to the quantity of time Mother spent with the child.


Gianvito is an example of a court’s willingness to reward parents for making their child the highest priority in their life. By including an analysis of the quality and quantity of time parents’ spend with their child in the “primary caretaker doctrine,” the Courts have clearly indicated to parents that simply providing the necessities may not be sufficient to preserve your role as the primary custodial parent. If a parent shows a willingness to shoulder difficulties and sacrifices in other areas his or her life in order to maximize the quality and quantity of time they spend with the child, then the Court may alleviate those burdens by granting the parent primary physical custody of the child