The hit television show Glee has been lauded for its tolerance and diversity, as well as its soundtrack, since it first came on the air in 2009. The show has tackled a host of story lines that have been both controversial and groundbreaking for a prime-time television about high school students, including homosexuality, teen pregnancy, developmental disability, obsessive compulsive disorder, and adoption. Glee’s portrayal of that last topic has of late irked some watchers, in particular Amber Austin who recently started an online petition which urges Fox to set the record straight about the realities of adoption.
For those of you who don’t know the difference between a gleek and a regular old geek, here’s a short synopsis: In the first season of Glee, we met Quinn, a beautiful, popular, and secretly pregnant, cheerleader who, to chagrin of her cheer leading coach, joined the glee club. Eventually, Quinn makes the decision to place her child with an adoptive parent. And, after giving birth, the baby girl is adopted by another character on the show (who just happens to be the birth mother of yet another character on the show, Rachel, who was adopted by a gay couple, and grows up to be one of the glee club’s biggest voices).
Now, right around this point in the story is where I personally stopped watching Glee so my knowledge of the current story line is limited. However, according to various news outlets, we can currently find Quinn battling the adoptive (and now legal) mother of her birth daughter in an attempt to “get her daughter back.” And, this is where Ms. Austin comes in. According to her petition, the show is perptuating one of the most “most pervasive and harmful myths about adoption” – namely, that the birth mother of a child can simply pop back up in the child’s life at her whim. I tend to agree.
As Ms. Austin correctly points out, in a legitimate adoption, a birth parent has a limited period of time in which to change their mind about an adoption. In the State of Washington, for example, a birth parent can only ask to rescind their consent to adoption at two points: (1) before the court formally approves the consent; or (2) within 48 hours of the court’s approval of the consent.
After that time has passed, the birth parent cannot ask the court to rescind the consent to adoption (or the adoption itself, once finalized) unless she can prove that her consent was obtained by fraud or under duress – both of which are very difficult to prove.
Ms. Austin also points out that many adoptions today are “open”, meaning that the birth parent or parents continue to be a part of the child’s life in some, limited capacity. The type of involvement a birth parent can have varies, but it may be limited to having a right to receive periodic updates about and pictures of the child from the legal parents, or it may allow the parent to have some visits with the child.
Of course the realities of adoption are unique to each family, but Ms. Austin is right – it’s important that adopted children, adoptive parents, and birth parents are portrayed not only with sensitivity but also with accuracy – even when that reality is bittersweet, as it appears to be for Seattle writer Dan Savage’s family. Check out his moving and honest account of his own family’s experiences with open adoption in a 2005 New York Times column here.
When most people think of adoption, they think of babies or children. However, in many states (including Washington), a person may be adopted at any age.
Any person may be adopted, regardless of his or her age or residence.
RCW 26.33.140
Washington law requires that a person who is over the age of 14 consent to being adopted. Thus, the decision to adopt an adult or older teenager must be a mutual one. Although adult adoption is somewhat unusual, there are a number of reasons why one adult may decide to adopt another.
A step-parent and adult step-child may wish to establish a legal parent-child relationship for both symbolic and practical purposes (such as ensuring that the step-child can inherit from the step-parent). Or, an adult without legal parents who has developed a parent-like relationship with another (presumably older) adult may desire legal recognition of that special relationship.
Two different stories of how an adult came to be adopted have been in the media recently. In a Father’s Day themed edition, the radio show This American Life told the story of two inmates who developed a father-son relationship while incarcerated. And, Oprah.com currently features an article about a family that adopted a 20 year old who had been part of their family for many years. Check out those stories here and here.
Last Friday the New York Times ran a story detailing the messy divorce of supermodel Stephanie Seymour and media mogul/art collector Peter Brant. Seymour and Brant, who’ve been married since 1995 and have three children, have apparently become near-fixtures at a Stamford, Connecticut courthouse as they’ve battled over drug tests, jewels, and Warhol paintings since Seymour filed for divorce in March of 2009. Indeed, according to the Times:
Since Ms. Seymour filed for divorce in March 2009, either the Brants or their lawyers had been in court at least five times before, in front of three different judges, battling at each fractious step of this marital dispute.
At issue in the divorce? Well, pretty much everything. He claims that she was unfaithful; she charges that he is controlling and put a tracking device on her car. He alleges substance abuse; so does she (they’re both required to take regular drug tests prior to their divorce trial). She says that he took a chandelier and art by Basquiat and Warhol from her bedroom; he says that she took his Warhols and a watch. He accuses her of wrongfully removing $700,000 worth of furniture from their winter estate, and she counters that he changed the locks on their family home in an effort to force to her out.
Seymour and Brant are also battling over their children. Noting that most of the documents regarding the custody dispute are sealed, the Times article focuses mostly on the couple’s glamorous past, and the current legal battle over luxury goods. But, a few details in the story hint at a pretty heated custody dispute as well. The Times, admirably, chooses not to go into much detail about the innocent children caught in the middle of this very public acrimony.
Sounds pretty messy – and it is. But, while Seymour and Brant may be fighting over objects that most people can only gaze upon on museum walls or in a Cartier display case, their conduct in this divorce is not altogether uncommon. Many divorcing couples, no matter what their economic standing, can get caught up in an insidious tit-for-tat squabbling over household items. Spend a morning or two on the family law calendar and more likely than not you’ll have watched at least one couple spar over everything from the washer and drier to the Nintendo Wii.
What can we learn from the Seymour and Brant saga? I think a quote from the article sums the lesson up nicely: “No one falls in love thinking they will end up sparring over sconces.” Even the rich and famous.
Related: Check out our firm’s advice on how to work with your lawyer to resist the temptation to fight your ex over every piece of furniture here.
A news story out of Chicago tells the tale of a Laura Derbigney, a Hispanic Catholic woman who claims to have recently been ordered by a court to obey Orthodox Jewish dietary restrictions and keep the Sabbath. The reason? Laura’s husband has a son with an ex-wife – an ex-wife who follows the strict dietary and other rules of the Hasidic branch of the Jewish religion.
The boy’s mother, apparently upset that the child was fed a non-kosher hot dog while in the father’s care, asked a Chicago court to order Laura’s husband to obey Orthodox Jewish dietary and other rules while the son is in his care. The court agreed with the boy’s mother, and ordered the father to feed the boy only kosher foods, and to observe the Jewish requirement of resting on the Sabbath (which for Orthodox Jews means refraining from such activities as cooking, operating electronic devices, and driving).
Laura, who is most probably not an actual party to the litigation between her husband and the boy’s mother, and thus not actually ordered by the court to do (or not do) anything, complains that the court’s order functionally restricts her lifestyle – while the boy is visiting his father – to that of an Orthodox Jew. She specifically points out that the court’s order bars her from preparing many Hispanic dishes while the boy is in her home. She’s hired an attorney to attempt to overturn the court’s order.
The story has few other details about this case, but of note is the fact that Laura’s husband is himself a Catholic who does not personally observe Jewish traditions either.
So why is the court forcing this family to act like Hasidic Jews when caring for this child? We can imagine a few possible scenarios. First, despite the fact that the father now calls himself a Catholic, he was indeed once married to a Hasidic Jewish woman. It may well be that during his marriage the father also considered himself to be Jewish and that the family obeyed Jewish laws prior to the divorce.
Thus the mother’s argument may be grounded in the fact that the child has always been raised in the Orthodox Jewish tradition and that the father, despite now considering himself Catholic, should continue to raise the child in a household which follows Jewish rules. Indeed, the parents may even have agreed to do so when they were divorced.
It’s also possible, of course, that the father has always considered himself Catholic, and that the family practiced both religions prior to the divorce. Or it’s possible that during the marriage the father consented to raising the boy as a Jew, despite the fact that he himself followed the rules of the Catholic church.
The more important question, however, is this: can a court even order a parent to follow any one religion’s practices without violating an individual’s right to freedom of religion?
We think the answer is no. While we’re not constitutional lawyers, as family law practitioners we often encounter the issue of religious decision making between separated parents. It is quite common for our clients to be concerned about whether or not the other parent will continue to raise the child in a certain religious tradition after separation or divorce. We often advise clients that any order or agreement that commands one parent to observe certain religious practices would not be enforceable in court.
This is not to say that two divorcing spouses cannot agree to continue to raise their child in the family’s chosen religious tradition – certainly divorced parents can make the same decisions regarding the religious education of their children that married parents can. It is not all that unusual for two parents who cannot get along as spouses to continue to share religious values and priorities when it comes to their children. It is also not uncommon for divorced spouses to agree that each parent may include the child in their own religious activities, even when each parent practices a different religion. In fact, we’ve seen many Washington parenting plans that specifically state that each parent may include the child in their own religious practices so as to avoid the conflict we see in Laura Derbigney’s story.
But, where divorced parents run into trouble is when they ask the court to make orders that endorse one parent’s religion over the other’s. Religious beliefs (or, just as importantly for some people, the lack thereof) are obviously of profound importance to many individuals and families.
We don’t underestimate how difficult it is for some parents to send their child off to a household with a different religious lifestyle, especially when that household’s religious beliefs are radically different than the other parent’s household. In an ideal situation, parents will be able to reach some compromise or consensus about the role of religion in their child’s life. But as this story shows, achieving harmony between two very different households is often difficult – not only for parents, but for the courts as well.
In this series, we have been examining Washington cases which help us to understand what exactly the “best interests of the child” standard means, and how it works when applied to a specific family. Our last article examined the fifth factor under RCW 26.09.187(3)(a) – “the child’s relationship with siblings and other adults, as well as the child’s involvement with his or her physical surroundings, school, or other significant activities.”
In this article, we’ll take a look at sixth and seventh RCW 26.09.187(3)(a) factors. The sixth factor directs the court to examine “the wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule.” The seventh factor requires the court to consider “each parent’s employment schedule” when fashioning a residential schedule. These are the last two factors for the court’s consideration under RCW 26.09.187(3)(a).
The Wishes of the Parents & The Sufficiently Mature Child
It is true that courts do sometimes consider a child’s expressed desires regarding parenting issues. Indeed, we most recently saw a court consider a child’s wishes for his residential schedule in our discussion of Custody of Shields. In that case the court considered testimony (given by a court-appointed guardian ad litem, the boy himself, and others) about the child’s desire to live with his step-mother instead of with his biological mother.
In practice, however, cases where the judge’s determination about parenting has much, if any, grounding in the individual child’s expressed desires for a parenting plan are very rare. And the rule makes it clear that the desires of children will be considered only when the child is “sufficiently mature to express reasoned and independent preferences.”
There are several reasons why courts do not place much emphasis on child preference, and why, when they do, they do so only under very limited circumstances.
First, there is a very strong desire in the courts and in family law practice to keep children out of the litigation as much as possible. It is widely considered to be very damaging to place children into the middle of litigation between their parents (or their parents and other family members), especially given the amount of distress that is already inherent in a parental dispute.
In other words, putting a child in a position where they are likely to feel forced to take the side of one parentagainst the other is highly disfavored in the courts. Indeed, parents who do so put themselves at risk of losing their case for designation as the primary residential parent.
Thus, the court rarely elicits direct testimony from a child in a custody dispute. What is more common, as we have seen in some of these cases, is for the court to appoint a guardian ad litem (“GAL”). The GAL’s job is to serve as a neutral third party (i.e. someone who has no stake in the outcome of the case) and advocate for the child’s best interests. In fact, most orders appointing a GAL specifically state that, among other important duties:
The guardian ad litem shall report the child’s expressed preferences regarding the parenting plan to the court, together with the facts relative to whether any preferences are being expressed voluntarily and the degree of the child’s understanding.
This gives the court the opportunity hear the child’s expressed wishes (if the child makes any to the GAL), while keeping the child out of the courtroom and largely uninvolved in litigation. GALs receive special training in dealing with the children of fueding parents and are expected to tell the court whether or not they believe that child’s expressed preference is made “voluntarily.” And, most GALs will meet with children in a comfortable and familiar environment – such as the child’s home. This keeps the child literally out of the courtroom, and hopefully, largely out of the litigation between his or her parents.
Secondly, courts consider statements made (or alleged to have been made) by children regarding their preference of one parent over the other to be of suspect reliability, especially when a child is very young. A child may have many motivations for expressing a preference for a certain parent over the other. A child may tell one parent “I want to live you” because he wants to please or comfort that parent. A child may say, “I want to live with you both equally” in an attempt to make both parents happy.
In some rarer scenarios, a child may have been coached to say she prefers one parent either by that parent or by another family member. Or, the child could simply be stating a true preference that is free of influence by anyone.
The point is, it’s difficult to determine why a child has made an expression of preference, and because of that courts are very weary of relying on those statement when making decisions about parenting.
Third, a child does not necessarily know or understand which household serves his or her own best interests and may desire to live in a household that is not in his or her best interests. For example, a child may say “I want to live with my mom” because his mom lets him eat pizza for breakfast and watch TV from the time he gets home from school until bedtime, while dad serves oatmeal and fruit for breakfast and requires that homework and some kind of physical activity be completed before the tv is turned on.
Or, a teenager may want to live with her dad because the father doesn’t enforce a curfew or have rules about drinking and smoking, while the mother does.
In addition, a child often does not (and should not) know exactly what is going on in each parents’ household. A child may be unaware that one parent has a drug problem or a mental illness, for example. Thus, they are not aware that living with that parent puts them at risk of physical and/or emotional harm.
Given all of the hazards of relying too heavily on a child’s expressions of preference for one parent over the other – emotional distress as a result of direct involvement in litigation; questionable reliability; and lack of awareness of the suitability of a given household – courts do not place this sixth RCW 26.09.187(3)(a) factor very high on the list of considerations. That is not to say, however, that the courts do not care at all what children want.
A child’s expressed preference for one parent may very well be indicative of a strong bond to that parent – and courts clearly care about a child’s emotional connection to his parents. Remember, after all, that the “relative strength, nature and stability of the child’s relationship with each parent” is the most important factor under RCW 26.09.187(3)(a). So, while the court does not ignore a child’s expressed wishes, the court evaluates the child’s expressions by looking at the child’s maturity and ability to make reasoned, independent statements of preference. This means that the court will care more about why a child wants to live with a particular parent, than who the child wants to live with. If a 13-year old tells a GAL, for example, that he prefers his mom’s house because dinner is always on the table at six, she regularly helps him with his homework, and they often go for bike rides after school together, this will be considered far more seriously than if the same boy says he wants to live with his mom because “she says dad abandoned us.” In other words, the reasoning the court will look to in a child echoes the other factors we have already seen here.
Each Parent’s Employment Schedule
This is the last and, admittedly, most mundane of the factors under RCW 26.09.187(3)(a). This factor requires the court to take into the practicality of placing the children in a particular parent’s house as it relates to that parent’s work schedule, and to formulate a plan that reasonably accommodates that schedule. After all, it would not make much sense to place a school-aged child primarily with a parent who works evenings and nights, but is home all day while the child is at school. Nor would it make much sense to give the non-residential parent weekend visits if that parent works long hours on weekends. A parenting plan needs to be grounded in the reality of each parent’s ability to spend time with the child – so the court needs to understand and take into account the times at which the parent is working outside the home and unable to care for the child.
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This is our final article on the individual factors under RCW 26.09.187(3)(a). We hope that it has helped you understand not only what the “best interests of the child” standard really means in practice, but also that it helped you understand what is important to the courts in making decisions about parenting. We hope this article has shown you that the court wants to see strong parental involvement in children’s lives, stability and consistency in the daily life of a child, attention to a child’s individual needs, and emotional, physical, intellectual and financial support of a child from both parents.
Next week, we’ll take a look at how all of these factors come into play when a parent seeks a change in custody, a process officially called “Major Modification of a Permanent Parenting Plan.”
In this series, we’re reviewing Washington cases which help us to understand what exactly the “best interests of the child” standard means, and how it works when applied to a specific family. Our last article examined the fourth factor under RCW 26.09.187(3)(a) – “the emotional needs and developmental level of the child.“ Today, we’re looking at the statute’s fifth factor for consideration under the “best interests test.” That factor requires the court to consider “the child’s relationship with siblings and with other significant adults, as well as the child’s involvement with his or her physical surroundings, school, or other significant activities.”
The fifth factor under RCW 26.09.187(3)(a) is somewhat unique among the “best interest” factors that we have discussed thus far. The four factors we’ve previously discussed all center largely around the individual parent-child relationship, and require the courts to examine various characteristics of each parents’ relationship with a child, as well as each parent’s individual capacity to parent that child in the future.
The fifth factor – “the child’s relationship with siblings and with other significant adults, as well as the child’s involvement with his or her physical surroundings, school, or other significant activities” (what a mouthful! Let’s call this the “relationship/involvement factor” for short) – takes the court’s decision-making process beyond the individual parent and child, and into the child’s relationship with his siblings and other adults besides his parents, as well as his involvement in school and other activities.
So, under this factor, the court needs to think about, for example, whether one parenting arrangement or another will be more likely to ensure that a child continues to see important people like their grandparents, or a special aunt or uncle. In addition, the court will think about whether a particular residential schedule will keep the child involved in important activities such as sport teams, scouting, or church group.
Custody of Shields
Susan Harwood and Michael Shields married in 1989, had a son in 1990, and divorced in 1994. Their son, whom the court referred to only by his initials, “C.W.S.”, was three years old at the time. Susan and Michael’s parenting plan placed C.W.S. in his father’s home. Susan was granted a substantial amount of visitation, which included time with C.W.S. for most of his summer vacation, and during other school breaks. However, in the two years which followed the divorce, Susan did not take advantage of much of her court-ordered time with her son.
In 1996, Michael married Jenny. Jenny had a daughter from a previous relationship, whom Michael later adopted. A few months after Michael and Jenny married, Susan moved to Oregon, nearly 400 miles away from where C.W.S. lived with his father. She also re-married.
In 1997, the court issued a new parenting plan for C.W.S. That plan cut a large portion of Susan’s time with C.W.S. in order to reduce the amount of traveling that Susan’s move now required of him. After the entry of the new parenting plan, and up until 2001, C.W.S. spent nearly all of his scheduled visits with Susan in Oregon, but Susan only traveled to Washington for about 15% of her scheduled visits there. C.W.S. continued to reside primarily on a Lamont, Washington farm with his father, step-mother, step-sister, and a half sibling who was born to Michael and Jenny a few years after they married.
In August of 2001, Michael Shields died in a “bizarre household accident” (which the court declined to describe in its written opinion). The day after his funeral, Susan Harwood took C.W.S. to live with her and her husband in Oregon – over the objection of Jenny Shields.
From August 2001 to January of 2003, C.W.S. lived on his mother and step-father’s horse farm, where he had a beloved horse named Chocolate. His mother arranged for C.W.S. to attend bereavement counseling in order to deal with the death of his father (it should be noted that Jenny Shields had also taken C.W.S. to counseling prior to his move to Oregon). C.W.S. excelled in school, where he participated in a special program for gifted children. He was elected class president and joined the school football team. He started to bond with his step-father as well.
However, while Susan Harwood and C.W.S. were acclimating to their new life together in Oregon, Jenny Shields was filing a petition with the court in Washington in which she asked that C.W.S. be returned to the family farm, to live with her and C.W.S.’s siblings. In her petition, Jenny alleged that it was in C.W.S.’s best interests to reside with her and the other Shields children in Washington, where he had lived during the preceding six years of his life. In her petition, Jenny also noted that C.W.S. “has close ties with his siblings as well as other family and friends in Lamont, has attended school his entire life in Lamont, and loved the family farm.”
A guardian ad litem was appointed in order to assist the court in determining where C.W.S. should live. At the trial on Jenny’s petition, the GAL recommended that C.W.S. live with his step-mother and siblings, noting that
between [Jenny and Susan, Jenny] had been the primary parent since C.W.S. was five years old; C.W.S. is closely bonded with Shields, his psychological parent, and is less bonded to his mother; C.W.S. wished to reside with Shields and his siblings; and while in Oregon, C.W.S. had limited contact with his family in Washington.
The GAL also cited the fact that C.W.S. was approaching his teenage years, and may begin to develop emotional problems as he aged, and that continuing to live with Susan might exacerbate those problems.
Other witnesses testified that C.W.S. did not want to live in Oregon with his Susan, and that he had always considered the move to Oregon to be temporary.
In addition, C.W.S. told the trial judge (in a private meeting in the judge’s chambers) “that living in Oregon with Harwood and [his step-father] was ‘okay,’ and better than it was when he first went down there because he had more friends at school and has adjusted but that he would rather live in Washington because that is where his brother and sister are, where the farm is, and where it feels like home.”
After the two day trial concluded, the court ordered that C.W.S. should return to Washington to live with Jenny Shields. The court acknowledged that a decision in favor of a non-parent against a parent required more than a best interests analysis, but also stated that it believed an analysis of the best interests factors was useful to its decision-making process.
The court highlighted the fact that residing in Oregon deprived C.W.S. of a relationship with his siblings, step-mother and other extended family members, and that C.W.S.’s adjustment to living in Oregon had been “guarded.” The court noted that although C.W.S. referred to both Jenny and Susan as “mom”, he appeared to be more bonded to his step-mother Jenny. So, the court effectively made its decision by analyzing the factors set out in RCW 26.09.187, including the “relationship/involvement” factor, and found that C.W.S. was better off living with the family he had known for most of his life.
Susan Harwood appealed the trial court’s decision and alleged that the court’s use of the “best interests” standard was incorrect. She argued that the court could only place C.W.S. with his step-mother if Jenny Shields could prove that Susan was an “unfit” mother. Her case eventually went to the Washington Supreme Court.
As we’ve discussed before, when a court is making decisions about custody of a child as between a parent and non-parent, they have to analyze the facts under a higher, more difficult standard than “best interests.” The court has to be convinced that placement with the parent over the non-parent will be actually detrimental to a child.
Recall the Allen case, which involved a custody dispute between a deaf child’s father and his step-mother. There, the court noted that while the child’s step-mother (and step-siblings) were fluent in sign language, the father was not. In addition, the step-mother had taken “extraordinary efforts” to secure special training for the child, which had allowed the child to go from being significantly behind his peers in intellectual development, to developing at the same level within just a few years.
On the other hand, the father appeared to be relatively uninvolved in the child’s schooling, and was unlikely to foster the child’s continued developmental progress as well as the step-mother was. So, the Allen court believed that removing the child from his step-mother’s care and into his father’s home would be detrimental – even though the court believed that the father was otherwise a “fit” parent.
So, back to Shields. The Washington Supreme Court partially agreed with Susan and said that the trial court was wrong to use the “best interests” standard. But the court noted that the issue was not whether Susan was “unfit” but rather whether it would be actually detrimental to C.W.S. to live with her instead of with Jenny. The court sent the case back to the trial court, with instructions to make a new decision using the “actual detriment” standard.
We don’t know exactly what decision the court made after it was reprimanded by the highest court in Washington. However, given what we do know about C.W.S.’s life with his mother – that while living with her he became (or perhaps just continued to be) a gifted student, class president, and athlete; that he was bonding with his mother and step-father and adjusting to life in Oregon – it seems very unlikely the C.W.S. ultimately ended up living with his step-mother.
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What’s all of this got to do with the “relationship/involvement” factor? Well, let’s first think about just the facts of Shields as they might work out in a case between parents only. The Shields trial court weighed some important, but conflicting facts about C.W.S.’s different relationships and his involvement in activities in Washington and Oregon.
First, the court surely considered the fact that, while living with his biological mother, C.W.S. did well in school, and became involved in activities like his school gifted program and the football team. He also had a horse on his mother’s farm. The court also noted that C.W.S. was forming a bond with his step-father, a male role model.
But the court also had to weigh the fact that C.W.S. seemed to have a stronger relationship his siblings and step-mother (who had raised him since he was about five years old), and had a strong emotional connection to the Washington farm where he had lived most of his life. He also had other extended family members in Washington, and, apparently, not many in Oregon.
As between two biological/legal parents, the court would probably have a very difficult choice to make when considering the relationship/involvement factor, as C.W.S. clearly had important relationships with his siblings and step-mother, but was also integrating into his mother’s home, his new school, and other beneficial activities. This decision would have been made all the more difficult by the considerable distance between the two homes.
But of course, Shields was not a case involving two legal/biological parents of a child. So, what Shields really demonstrates is how much courts prioritize the relationship between children and their biological parents over their relationshipa with other family members (as well as non-family members).
The reason for this is two fold – first, courts consider parenting of one’s child to be a “right” – not a privilege. Thus, the court cannot deprive a biological parent of his or her relationship with a child without a very good reason (such as “actual detriment” or parental unfitness). Secondly, the courts recognize the unique bond that children and parents share, and attempt to foster that bond whenever possible.
So, even though the Shields court might have really believed that Jenny was a better parent (perhaps primarily due to the sheer amount of time she had spent with C.W.S. and not because Susan was “bad” mother), the court could not remove C.W.S. from Susan’s home without a showing that continuing to live with her would harm him in some way.
Check out the Supreme Court’s full written opinion in the Shields case here: In re Custody of Shields, 157 Wn. 2d 126 (2006).
Next week we’ll discuss the last two factors under RCW 26.09.187: The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and each parent’s employment schedule, and … accommodations consistent with those schedules.
In this series, we’re reviewing Washington cases which help us to understand what exactly the “best interests of the child” standard means, and how it works when applied to a specific family. Last week we discussed the third factor, the “past and future performance of parenting functions“, which relates to each parent’s ability to take care of a child’s day-to-day needs, as well his or her ability to tend to the child’s overall well-being and development. Today, we’ll discuss RCW 26.09.187(3)‘s fourth factor – “the emotional needs and developmental level of the child.”
At this point in our series, you may have noticed that many of RCW 26.09.187(3)‘s factors revolve around a few central priorities – priorities like stability, parental involvement in the day-to-day and long term needs of a child, and the general quality of the relationship between a child and his or her parent(s). Indeed, many of the cases we have discussed this far, while factually different, have revolved around these core priorities. You may have also noticed that many of the factors we’ve discussed so far tend to overlap from case to case.
Indeed, the court’s approach to the factor we’re discussing today – “the emotional needs and developmental level of the child” (we’ll call it “the emotional/developmental factor” for short) – is no different. And, several of the cases we’ve already discussed have also touched on this fourth factor in way or another. So in this article we’ll be revisiting four cases from previous articles, for two reasons (1) these cases also involve the “emotional/developmental” factor; and (2) there just aren’t a whole lot of cases exploring these factors (mostly because trial courts are given a lot of discretion to make decisions about parenting, so the Court of Appeals and Supreme Court don’t often disturb their decisions).
Let’s start with the Jacobsens, whose case was described in our first article. The Jacobsen parents were both nuclear engineers who had spent roughly equal amounts of time with their two children prior to their separation. When they divorced, the court formulated a parenting plan where each the children spent nearly equal time with each of their parents. In doing so, the court cited the fact that “[b]oth parents have also shared in the athletic, emotional, intellectual, and creative lives of the children.”
The court then structured a parenting plan that it believed would “preserve for these children a quality of life that most children don’t enjoy, and it’s a quality of life that they’ve had because of the participation of both parents.” In other words, the court observed that the children were accustomed to the involvement of both of their parents, and thus needed a parenting plan that continued to foster their equally strong relationships with both their mother and their father.
Conversely, the sad tale of Doug, Tracy, and Ashley(here making their third appearance on Decoupling) shows a court choosing one parent over another in an attempt to ensure the emotional well being of a child. Ashley clearly had problems – she was defiant and manipulative, particularly towards her parents. In addition, Tracy was strongly opposed to Doug’s relationship with Ashley, and refused to let Doug see her, even though Doug was legally entitled to visitation with their daughter. Doug believed that the only way for he and Ashley to develop a positive father-daughter relationship was for the court to grant him primary custody of Ashley.
In that case we saw the court balancing two competing priorities: the court’s desire to promote a child’s relationship with both of her parents, and the court’s desire to promote the overall emotional and intellectual well-being of a child. We can probably all agree that a child, in most cases, needs to have the opportunity to know and bond with both of her parents. We can also probably agree that a child should live in an environment that is most likely to help that child grow up to be a healthy, happy and well-adjusted adult.
So, the court had a very difficult decision to make. Hand Ashley over to Doug in the hopes of promoting a father/daughter relationship. Or, preserve Ashley’s status quo (living primarily with her mother), in the hopes that Ashley’s emotional problems won’t get worse.
Ultimately, the court determined that forcing Ashley to live with her father would be detrimental to her emotional well-being, and that Ashley was better off continuing to live with her mother – even though that living arrangement made it less likely that Ashley and Doug would develop a strong parent-child relationship.
We also saw the court’s analysis of children’s emotional needs in the Magnuson case. Recall that the Magnuson case involved a father who was transitioning from male to female. He had also quit his job as a lawyer and moved out of the family home, while the children’s mother continued to be employed and resided in the home in which the children had grown up. The court noted that there was “evidence of the children’s … uncomfortable and nervous behavior” as a result of their parents’ separation.
The court believed that the children’s emotional needs were best served by residing primarily with their mother, noting that her home “provide[d] an oasis of stability in all of this ongoing change.” The Magnuson court was primarily concerned with the emotional impact of the divorce (and their father’s transformation from male-to-female) on the children, and tried to formulate a plan that would prevent further emotional turmoil.
Finally, the Allencase provides a unique example of how important a child’s emotional and developmental needs are to a court when making custody decisions. Joshua Allen was born deaf and, as a result, fell behind in his intellectual development – until Joshua’s step-mother took on the task of learning sign language, and teaching it to Joshua and his step-siblings. She also petitioned Joshua’s school to hire a special tutor for him.
As a result of her “extraordinary” efforts, Joshua caught up with his peers, and enjoyed an improved quality of life as he was able to communicate with his family. Joshua’s father, on the other hand, had only minimal sign language skills and was not as involved in Joshua’s education as the step-mother.
When Joshua’s father and step-mother divorced, the court lauded the step-mother’s efforts towards Joshua and ultimately determined that Joshua should live primarily with her. The court was particularly concerned with Joshua’s special needs, and his step-mother’s intense dedication to serving them. The court found that it was very likely that Joshua’s developmental improvement and overall well-being would deteriorate if he were to live with his father.
The court ultimately recognized that Joshua’s future intellectual development was best served by continuing to live primarily with his step-mother and step-siblings. Surely, the court also recognized that Joshua’s emotional need for companionship and communication with others was best served by residing with people who also knew sign language.
* * *
These cases, viewed in the context of the “emotional/developmental factor” in RCW 26.09.187(3), again illustrate how important it is for parents to be involved in their children’s lives in a meaningful way. All of these cases demonstrate how important it is to the court that a child reside with the parent who is most in tune and devoted to both his overall emotional and mental well-being, as well as his day-to-day needs. First, we see the court identifying a child’s particular emotional or developmental need – such as the Magnuson children’s need for stability and calm, or Joshua Allen’s deafness. Then the court attempts to fashion a parenting plan that it believe is more likely to serve those needs.
When both parents are meaningfully involved, like the Jacobsen parents were, the court is more likely to formulate a plan where the children spend nearly equal amounts of time with their parents. And, where one parent is much more attentive to and concerned with a child’s emotional and developmental needs, the court is more likely to order that the child spend more time with the more-involved parent – especially when a child has special needs (like Joshua Allen).
And, yet again, we see the court’s emphasis on stability, particularly in the upheaval of parental separation and/or conflict. The court recognizes that all children need stability, and will strive to promote stability when making decisions about parenting. When one parent’s home appears to provide more stability for a child, the court is much more likely to place the children primarily in that home – even when that parent’s home is far from perfect (like Tracy’s home).
Next week, we’ll take a look at the fifth factor under RCW 26.09.187: “the child’s relationship with siblings and with other significant adults, as well as the child’s involvement with his or her physical surroundings, school, or other significant activities.”
In this series, we’re taking a look at some Washington cases that shed some light on to what the “best interests of the child” standard means, and how it works when applied to a specific family. Last week we discussed the second factor, “the agreements of the parties.” In that article we saw just how much discretion a court has to makes its own determinations about parenting, regardless of the agreements of the parents. Here, we examine the third of the seven factors the court considers: “Each parent’s past and potential for future performance of parenting functions as defined in RCW 26.09.004(3), including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child.”
RCW 26.09.187‘s third factor requires the court to look at both parents’ history of performing parenting functions, as well as their potential for future performance of parenting functions. As we’ll see, the fact that one parent took on most of the parenting duties before separation will not always convince a court that that parent is the best choice for primary residential parent once a divorce is final.
Before we get into the cases which address the “parenting function factor,” as we’ll call this factor for short, let’s take a look at what exactly “parenting functions” are. Luckily, RCW 26.09.004includes a definition of “parenting functions”:
(2) “Parenting functions” means those aspects of the parent-child relationship in which the parent makes decisions and performs functions necessary for the care and growth of the child. Parenting functions include:
(a) Maintaining a loving, stable, consistent, and nurturing relationship with the child;
(b) Attending to the daily needs of the child, such as feeding, clothing, physical care and grooming, supervision, health care, and day care, and engaging in other activities which are appropriate to the developmental level of the child and that are within the social and economic circumstances of the particular family;
(c) Attending to adequate education for the child, including remedial or other education essential to the best interests of the child;
(d) Assisting the child in developing and maintaining appropriate interpersonal relationships;
(e) Exercising appropriate judgment regarding the child’s welfare, consistent with the child’s developmental level and the family’s social and economic circumstances; and
(f) Providing for the financial support of the child.
Pretty straightforward, no? Essentially, the court wants to know which parent has, and will continue to take the most responsibility for ensuring that a child is cared for emotionally, physically, socially, and developmentally. These functions run the gamut from making sure a kid brushes his teeth and eats breakfast in the morning to ensuring that a child receives appropriate emotional support and learns how to have functional social relationships. And remember that the court will attempt to determine not only which parent performed these functions the most during marriage, but also which parent seems more likely to perform them going forward.
The Kovacs’
John and Marcia Kovacs got married in Alaska in 1982. During their marriage, John worked in the janitorial industry, and Marcia mostly stayed at home with their three children. In 1988, John lost his job. The couple decided to move to California, where they believed that the job market was better. They also agreed that John would first go to California without Marcia and the children, so that he could secure a job and place for the family to live. So, in April of 1989 Marcia and the kids first moved into Marcia’s parents’ home in Spokane, Washington, and then later to a duplex, also in Spokane, which was owned by Marcia’s parents. Shortly thereafter, in June of 1989, John headed to California.
Within a couple of months, John had found a job and a 3 bedroom house for the family to live in. However, while John was busy preparing for his family to move to California, Marcia was deciding that she did not want to be married to John anymore. In November of 1989, Marcia told John that she was going to file for divorce, and that December she filed for divorce.
A temporary parenting plan was entered in March of 1990. The temporary plan gave Marcia primary residential care of the children, who were aged 10, 9 and 6 years old at the time of the divorce. By the time the Kovacs’ divorce went to trial, the children had lived with Marcia as primary residential parent for 18 months. During those 18 months, Marcia also got a boyfriend. She started making frequent trips to see the man in Olympia, often leaving the kids with relatives. On one trip back from Olympia Marcia was arrested for drunk driving; on another, Marcia got in a car accident – while drunk and with the kids in the car. After that accident, the Kovacs’ kids were put in foster care for two days.
At trial, both Marcia and John asked to be made primary residential parent. During the trial, Marcia presented testimony that she had been the children’s primary care giver and had been the parent who was responsible for the children’s day-to-day needs both during marriage and after separation.
John hired an expert witness to psychologically evaluate both him and Marcia, as well to observe both parents with the children.
The psychologist testified that he had diagnosed Marcia with a personality disorder that “would inevitably effect parenting.” He also testified that the children, although relatively well-adjusted, seemed to respond better to their father’s firmer approach to parenting. The expert recommended that the children live with their father, noting that John appeared to be “a more stable individual who will provide a more structured stable environment for the children.”
Marcia had her own “expert” – a counselor who was introduced to the children and the mother (but not John) just days before the divorce trial. That counselor recommended that the children live with Marcia, citing the fact that “children can get along without a lot of things, but they don’t get along well without nurturing from their mother.”
The trial court adopted John Kovacs’ expert’s recommendation, and made John the children’s primary residential parent. Shortly after the trial, the children moved to California to live with John.
Marcia appealed, arguing that Washington law required the court to award primary residential care to the parent who was the child’s primary residential parent prior to the divorce – unless the court found that doing so would harm the children. The Washington Court of Appeals disagreed, and affirmed the trial court’s award of primary residential care to John.
The Court of Appeals noted that the “in [a] permanent parenting plan, the court is to evaluate the ability of each parent to perform the parenting functions for each child prospectively.” In other words, the Court of Appeals recognized the fact that the trial court appeared to be primarily concerned with how well Marcia (and John) would parent in the future, and not with how much parental responsibility Marcia had taken on in the past. Surely part, if not much, of the reason the court believed Marcia had less potential to perform parenting functions going forward was rooted in the Marcia’s apparent substance abuse and mental illness.
Before we get into the details of the Allen case, we should explain that Allen involves a custody dispute between the biological/legal father and the step-mother of a child. Washington courts favor placement of a child with his parent. As such, in custody disputes between a parent and, say, a grandparent (or an aunt, or a step-parent), Washington courts apply a more stringent standard than the “best interests” standard. This more rigid standard is known as the “actual detriment” standard.
As you will see below, the trial court in the Allen case applied the best interests standard, which the Washington Court of Appeals later noted was not the right standard. However, the Court of Appeals also ultimately upheld the trial court’s decision under the more stringent “actual detriment” standard. Despite the fact that the trial court erred in this respect, we think that in a factually similar case between two parents – a case in which the court would properly apply the “best interests” standard – the court would likely come to a similar decision as the Allen court did. Thus, we think Allen still provides a good illustration of how the “parenting functions” standard applies.Joe and Jeannie Allen were married in 1974. At the time of their marriage, Joe had one son, Joshua. Joshua was born without the ability to hear, and as such never learned to speak. Joe and his first wife, as the Court of Appeals put it, “both… went through a period of emotional trauma, feelings of depression, guilt and almost accusotorial concern about each other’s ancestry” as a result of Joshua’s special needs. They eventually divorced. Joshua’s deafness was particularly difficult for his biological mother, and she eventually transferred custody of Joshua to Joe.
As for Joe’s second wife, Jeannie, she herself had three children from a previous marriage. After they married, Joe adopted Jeannie’s children. Joshua was never adopted by Jeannie, apparently because Joe’s biological mother would not consent to an adoption.
However, Jeannie and Joshua quickly developed a very strong parent-child relationship. In fact, Jeannie was instrumental in improving Joshua’s quality of life and in fostering his intellectual development despite his special needs. At the time of Jeannie and Joe’s marriage, Joshua was three years old, and significantly behind other children of his age in his intellectual development.
When Joshua began living with his father and Jeannie, Jeannie took on the task of teaching sign language to Joshua, his three step-siblings, and herself. She convinced Joshua’s school to give Joshua one-on-one tutoring with a teacher who knew sign language. She put herself into debt in order to fund Joshua’s education and other specialized training.
Joshua’s father, Joe, learned some minimal sign language as well. However, Jeannie and her children became fluent in sign language, and began signing as often as they spoke so as to include Joshua in conversation.
By 1978, Joshua’s life had dramatically changed – he was now testing at the same intellectual development level as children his age with the ability to hear. This remarkable improvement in Joshua’s development was largely due to his stepmother’s efforts. 1978 was also the year that Jeannie filed for divorce from Joe. She asked the court to grant her custody of all four children, including Joshua. During their separation and up through trial, Joshua continued to live with Jeannie and his step-siblings.
The trial court was impressed with Jeannie’s “exceptional” “dedication and effort” in nurturing Joshua. And, the trial court decided that it was in Joshua’s best interests to continue to reside primarily with her. Noting that Joe was not an unsuitable parent, and was also concerned with Joshua’s development, the court granted Joe liberal visitation rights. However, the court found that Joshua’s future and continuing development would be jeopardized if he were placed in Joe’s care, largely due to Joe’s minimal sign language skills.
Joe appealed. Much of the basis of Joe’s appeal is outside the scope of this article. However, as discussed above, the Court of Appeals ultimately concluded that the trial court was in the right to place Joshua with his stepmother, even under the more stringent standard of “actual detriment.” The Court of Appeals held that the evidence before the trial court about Jeannie’s advocacy for and training of Joshua, and also about Joe’s minimal sign language skills (and thus lack of ability to communicate with his son) was sufficient to show that Joshua would be harmed by living primarily with Joe.
Clearly, the trial court was particularly concerned with Jeannie and Joe’s respective commitments to Joshua’s unique developmental needs. And clearly, the trial court believed that Jeannie was the best parent to foster Joshua’s intellectual development. In other words, the trial court held that Jeannie was the parent most suited to continuing performance of important parenting functions like “attending to adequate education”, “assisting the child in developing and maintaining appropriate interpersonal relationships,” and “attending to the daily needs of the child.”
Indeed, it is probably not a stretch to say that without Jeannie’s efforts, Joshua might never have lived up to, as the court put it, “his native intelligence.” Without Jeannie’s intervention, Joshua might never have developed the ability to communicate with his family in the way that he eventually did with Jeannie and his siblings. Clearly, the court recognized this remarkable attention to Joshua’s education and intellectual development when it awarded primary custody to Jeannie.
There are a number of points worth discussing about the above cases, and what they tell us about the “parenting functions” factor specifically, and the “best interests” standard generally.
First, we again see the court’s concern with stability. In Kovacs, the court ultimately determined that, despite the fact that Marcia Kovacs had pretty much always been the children’s primary parent, her mental and substance issues made her home a less stable place for the children. The history of performance of parenting functions in the Kovacs family, which fell in Marcia’s favor, did not outweigh the fact that the father had more potential to ensure that the children’s day-to-day and long term needs were met due to the fact that his household appeared to be more stable for the children.
We also see questions about stability arise in Allen. Although the court does not specifically address the issue, the court does note the significant progress Joshua Allen had made in his stepmother’s care, and the likely risk of a set-back in his development if he was placed with his father. In other words, the court was concerned that disrupting the home life that Joshua had become accustomed to – one which included living with family fluent in sigh language and special attention to his developmental needs – would almost certainly affect Joshua’s continuing development.
Finally, although the facts of Allen are clearly unique, Allen does highlight a universal concern of court analyzing parenting and a child’s best interests. That concern is with each parents’ dedication to the child’s long term physical, emotional and intellectual development, education, sociability, as well as attention to the child’s day in, day out needs. Obviously Joshua Allen’s special needs, and Jeannie Allen’s extraordinary dedication, are not common in many families. However, in most parenting disputes the court will still examine how much effort and time each parents puts into teaching, training, and communicating with the children.
Sometimes clients ask us what they can do to ensure that they get “equal custody” of their kids when they’re contemplating divorcing a spouse. We think the best answer to that is to be an involved parent – and not just with the fun stuff. Sure, coaching Little League is great, but an involved and concerned parent also goes to their child’s medical appointments, parent-teacher conferences, and helps with homework in the evenings. Participating in those parts of your child’s life shows the court that you’re not just interested in the lighter side of parenting, but that you’re also committed to the overall health and well-being of your child.
Next week we’ll look at the fourth factor under RCW 26.09.187 – the emotional needs and developmental level of the child.
In this series, we’re taking a look at some Washington cases that shed some light on to what the “best interests of the child” standard means, and how it works when applied to a specific family. Last week we discussed the first, and most important factor, “the relative strength, nature, and stability of the child’s relationship with each parent.” Here we examine the second of seven factors the court considers: “the agreements of the parties, provided they were entered into knowingly and voluntarily.”
Under RCW 26.09.187(3)(a)(ii), a court must also consider agreements made by parents when fashioning a parenting plan or residential schedule for children. This factor encourages parents to try to work together to come up with a workable parenting plan, and also encourages the court to at least consider prior agreements made by parents when fashioning a parenting plan.
For example, parents may have agreed, long before the acrimony of breaking up arose, that their children should attend a particular school. A court may choose to enforce that agreement by including in a final parenting plan a requirement that the parents shall enroll the child in that previously agreed-upon school.
However, this second factor also contains an important caveat – the parents must have made the agreement “knowingly and voluntarily.” It is this caveat that has sparked the most litigation in Washington courts. Let’s take a look at one agreement that the court did not uphold due to the court’s concern about whether the agreement was made “knowingly and voluntarily.”
The Littlefields
In 1989, Edmund and Charissa met at a music festival in California. Edmund was 40 and Charissa was 23. At the time that they met Edmund was in the process of divorcing his first wife, with whom he had a young son. Edmund, who had a substantial trust fund, was also something of a free spirit – he played in a rock band and his primary occupation was running a music recording studio which lost more money than it made every year.
Edmund also had a problem with drugs and alcohol. It was for this reason that the court in his first divorce ended up restricting his time with his first child, and ordered him to remain in substance abuse counseling as a condition to seeing his son.
Three days before Edmund and Charissa married in 1992, they signed a pre-nuptial agreement. Among other things, the soon-to-be Littlefields agreed that:
[they] believe that any child they have will benefit from the full involvement of both parents. Both believe that it is not in the best interest of the child to become engaged in psychiatric evaluations or protracted disagreements over parenting plans. Accordingly, their children shall spend equal residential time with both parents. How the time is divided shall be determined by the conditions then prevailing, including the age of the children, work schedules of the parents, and other relevant factors. Holidays and birthdays shall be alternated. Major decisions pertaining to the children, including education, religion and military service shall be made jointly. The child’s feelings and wishes will be considered in the decision.
Unbeknownst to both Edmund and Charissa, Charissa was pregnant at the time that they signed the pre-nuptial agreement. Their daughter Heather was born later that year. During their marriage, Charissa, Edmund, and Heather lived part time in Northern California (which was Charissa’s home state) and in Washington, on a farm owned by Edmund.
The Littlefields split up in 1994, when Heather was two years old. Charissa wanted to move to California permanently and asked the court to allow her to do so. Edmund argued that he and Charissa had agreed that “their children shall spend equal residential time with both parents” and thus Charissa could not move to another state as it would make it impossible for Heather to have equal time with both of her parents.
The trial court agreed with Edmund to some extent – and ordered Charissa to remain in Washington. The court also fashioned a parenting plan which gave each parent roughly equal time with Heather. Charissa appealed, arguing that the court could not force her to live in Washington. Charissa also asked the court to review the whole parenting plan, including the residential schedule.
On appeal, the court ruled - for reasons outside the scope of this article – that a court could not force a parent to live in a certain geographic location. The court also found that the trial court was not bound by the Littlefield pre-nuptial agreement’s provision requiring each parent to have “equal time” with Heather. The reason? The agreement between Edmund and Charissa had not been entered into “knowingly and voluntarily”:
The agreement in this case did not contemplate the needs of any particular child, was entered into at a time when the father’s contact with his only living child was restricted to supervised visits of a maximum of four hours every other week, and was made without the knowledge of how either party would act toward a child. Based on this record, we find it unlikely that these parties could have knowingly provided for the parenting of a child at the time the agreement was signed.
In short, the court ruled that while “the [prenuptial] agreement may be considered by the court, in light of the circumstances and knowledge of the parties when the agreement was made… the [Littlefield's agreement] is not enforceable.” In essence, the court did not believe that Edmund and Charissa could have made a knowing agreement about parenting a child or children when they did not yet even have a child, and had not yet raised a child together – especially given the fact that another court had decided Edmund’s relationship with his first child should have restrictions due to his use of drugs and alcohol.
The law on the “agreement” factor could fairly be said to be scant. One possible reason why this issue hasn’t been litigated more is that courts don’t really like to disturb final agreements unless there’s a really good reason to do so. The facts of the Littlefield case illustrate a scenario in which the court had good reasons to ignore the agreement made by parents: it was made before the couple had any children together; it was not made with the specific interests or needs of any specific child in mind; and at least one of the parents had issues which, with respect to another child, required that restrictions be placed on his parenting.
We might then draw the following conclusion about the agreement factor: a court will be more likely to uphold agreements that are made between parents who have a history of parenting - together – the children about whom the agreement was made, and when it is clear that the parents knew and considered the strengths or weaknesses of each parent when making the agreement.
Sound familiar? It’s fair to say that the court must be satisfied that the parents engaged in an inquiry similar, if not equivalent, to the “best interests” inquiry required of the court under RCW 26.09.187(3)(a)(i) before it will bind itself to parental agreements. And the court may choose to set aside an agreement, and formulate its own parenting plan, if it is not so satisfied.
This policy is unusual in the law. Generally speaking, courts tend to favor enforcement of contracts – even if the terms are unfair – so long as they fulfill the basic requirements of formality, and so long they were entered into fairly (i.e. without the use of fraud, coercion or threats), and are not simply illegal (i.e. selling your kidneys or illegal drugs). For example, a pre-nuptial agreement which contains very unfair financial terms will often be enforced by the court, if the process leading to the pre-nup is sufficient (both sides have access to a lawyer, enough time to review the documents before the wedding, etc.).
You may well think that if you’re both adults, and you both entered into a parenting agreement voluntarily, with your eyes open, then the court should just uphold this agreement as it would any other contract. But parenting agreements are not contracts. They are decisions about the welfare of human beings – human beings who generally have no say in the formation of the agreement. For this reason, the court’s general duty to protect the welfare of all children within its jurisdiction trumps the rules that apply to other contracts.
When it comes to children the court has the discretion to ignore private agreements altogether – regardless of the process that led to the agreement and the agreement itself – and fashion a parenting plan that it believes to be in the child’s best interests. So, while a parental agreement may be highly relevant to the court’s decision making process, it is not absolute. Given that the court is required to place the utmost importance on the parent-child relationship factor, it makes sense that an agreement won’t necessarily trump that parent-child bond. The fact that a child’s parents agree to a particular custody arrangement does not mean that the agreement serves the child’s best interests.
Next week, we’ll discuss the third factor – “each parent’s past and potential for future performance of parenting functions as defined in RCW 26.09.004(3), including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child.”
In this series, we’re taking a look at some Washington cases that shed some light on to what the “best interests of the child” standard means, and how it works when applied to a specific family. Today, in this second article in the series, we’re taking a look at the first of the seven factors that Washington courts must consider when determining what kind of parenting plan is in a particular child’s best interests.
As we discussed in the first article in this series, RCW 26.09.187 sets out seven factors to be considered by a court in determining a parenting plan. The first of these factors – the relative strength, nature, and stability of the child’s relationship with each parent – is the most important of the seven factors that the court considers. Indeed, the law requires the court to place “the greatest weight” on this first factor.
We’ll refer to this factor as the “parent/child relationship factor” for short throughout this article.
The parent/child relationship factor requires the court to examine three broad characteristics of each parent’s relationship with the child(ren) – strength, nature, and stability – and then compare/contrast the parents to determine how much time the child should spend with each. A review of Washington cases shows us that there are at least two scenarios in which examination of the parent/child relationship factors makes decisions about custody very difficult.
The first difficult scenario involves parents who appear to have equally strong and bonded relationships with the child. The second difficult scenario involves families in which neither parent appears to have developed a healthy relationship with the child. Let’s take a look at three cases where the court had difficulty formulating a parenting plan after considering the parent/child relationship factor.
The Jacobsons
Mark and Jenny Jacobson were married for 13 years, and had two sons. Both of the Jacobson parents were nuclear engineers. Throughout their marriage, and against Mark’s wishes, Jenny worked full time. Because Mark believed that one of the two parents should be home with the children, he worked in the evenings, while Jenny worked days. During their divorce, both parents argued that they should be the primary residential parent, with the other parent spending weekends and summer vacations with the children. A guardian ad litem (GAL) was appointed to evaluate Mark and Jenny’s strengths as parents, and to assist the court in formulating a parenting plan.
The guardian ad litem… testified that either parent is capable of acting as the primary residential parent because both are actively involved and have warm, loving relationships with their sons. She testified that even though the father and the mother have differing parenting styles, the children have benefited from this diversity and respond well to each parent.
Despite the fact that the GAL believed that both parents were appropriate candidates for primary residential, she ultimately recommended that the children reside primarily with Mark. She cited the fact that Mark “had spent considerable time with the children and did not have other interests outside of work and his children’s lives.” She recommended that Jenny should have two out of every three weekends per month with the children, as well as one weekday evening visit.
However, the court ultimately formulated a parenting plan that gave Jenny a lot more time with the children – three nights per week - than that recommended by the GAL. In doing so, the judge also highlighted the fact that “both parents have… shared in the athletic, emotional, intellectual, and creative lives of their children. Each parent has gifts and strengths to offer to their children in the future and have done so in the past.” The court stated that this schedule was not “an easy decision” but that it was “trying to preserve for these children a quality of life that most children don’t enjoy, and it’s a quality of life that they’ve had because of the participation of both parents.”
Essentially, the Jacobson court recognized that the Jacobson children’s relationships with Mark and Jenny were equally strong and stable – and formulated a parenting plan that it believed would continue to foster these strong parent/child relationships.
In addition to illustrating how the court makes custody decisions in cases where both parents have equally strong relationships with their children, the Jacobson case also disproves a common misperception. Many people believe that the courts almost always make custody determinations which favor the mother. However, the Jacobson court actually ordered that the children would spend more time with their father – even though the court believed that Jenny was just as good of a parent as Mark. Jacobson demonstrates that when the child/parent relationship factor is properly applied, decisions about custody are relatively gender neutral.
In other words, Jacobson provides a good example of a court making a decision about parenting by relying on a comparision of each parent’s strengths and weakenesses – and not by relying on traditional ideas about mothers v. fathers.
Robbie and Tracy Magnuson were married for 19 years, and had two children. During the marriage, Robbie worked as an attorney, and Tracy was a surgeon. Both parents had busy careers, and relied on nannies and babysitters to care for their children. Robbie announced that he intended to undergo sexual re-assignment surgery in order to transition from a male to a female. He took a leave of absence from his job sometime after this announcement. The couple separated, and Tracy filed for divorce.
Like the Jacobsens, both Robbie and Tracy argued that they should be the primary residential parent, and again the court engaged in an inquiry as to the quality of each parent’s relationship with the children.
After eight days of trial (which included testimony from a GAL), the court found that “both parents are good and loving parents… the children’s relationship with each parent is approximately equal. Each has performed equal but very different roles with the children.” However, the court also found that the impact of Robbie’s intended sexual transformation was, at the time of trial, “unknown.”
The court ultimately found that, “while the margin [between the parents] is somewhat slim,” Tracy was the more appropriate primary residential parent for the children. Robbie was given substantial visitation with the children. The court indicated that it was concerned about the as-yet “unknown” impact of Robbie’s impending gender re-assignment on the children in making its decision. Specifically the court was concerned that Robbie’s impending surgery “may be everything [she] has hoped for, or it may be disastrous. No one knows what is ahead.” The court also noted that Tracy continued to be employed, while Robbie had quit his job after announcing his intention to become a female.
The court ultimately found that Tracy’s home would be the most stable environment for the Magnuson children. Robbie appealed the decision, arguing that the court improperly considered his transgender status in making its decision. However, the Court of Appeals disagreed, and pointed out that the court was more concerned about thethen unknown impact of Robbie’s surgery on the children, and ultimately, the stability of the household in which the children would live.
We’ve actually previously discussed the story of Doug & Tracy on Decoupling (check out their full story here). To make a long story short, Doug and Tracy had short and tumultuous romantic relationship which ultimately resulted in the birth of their daughter Ashley in 1988. Doug was not around for Tracy’s pregnancy, and did not make much effort to see his daughter for nearly ten years after her birth. In 1996, he filed a petition for visitation with Ashley.
Tracy was highly resistant to Doug’s involvement in Ashley’s life and refused to let him see her. In fact, she even made an accusation that Doug had molested Ashley, which Doug denied. Making matters even more complicated was the fact that Ashley had developed into a rather troubled child and caused many problems between her embattled parents.
Doug asked the court to make him Ashley’s primary residential parent due to Tracy’s ongoing opposition to his relationship with Ashley. He argued that he would not be able to develop a positive parental relationship with Ashley if she continued to live with Tracy.
At trial, a GAL testified that both Tracy and Doug had problematic relationships with Ashley in that they both allowed Ashley to manipulate and control them. He further questioned both Doug and Tracy’s relationship with Ashley by saying:
I can’t make Tracy and Doug be responsible parents. I can’t make them do the right thing with regard to Ashley.
The court ultimately denied Doug’s request to have Ashley placed with him. Despite the fact that Tracy was refusing to let Ashley see her father, the court noted that placing Ashley with Doug would likely “make things worse.” The court concluded that placement with Doug was not in Ashley’s best interests.
Ashley had lived with her mother for her whole life, and although Tracy’s conduct towards Doug was unfair, the court believed that moving Ashley would be “detrimental” to her well-being. Schroeder demonstrates that custody decisions are ultimately not about the conduct of parents towards each other, that even when a parent obstructs the other parent’s relationship with the child, the court won’t “punish” the bad-behaving parent by awarding custody to the other.
Again, the court in Schroeder was ultimately most concerned about the quality of Ashley’s relationship with her parents and not with the bad behavior of the parents toward each other. Even though Ashley’s poor relationship with Doug was to some extent the product of Tracy’s behavior, the court could not ignore the fact that, on balance, Ashley was better off with her mother.
The above three cases show us that every custody dispute involves very different families and, consequently, has very different results. What similarities, if any, can we draw between these three very different families, these three very different court decisions, and how they interact with the parent/child relationship factor?
The thread that seems to run through all three of these cases is the court’s concern with ensuring stability for children. In the Jacobsen case, the court stated a desire to maintain the “quality of life” that the children enjoyed as a result of each parents’ equally strong and nurturing relationship with them. The court attempted to maintain this quality of life by setting up a residential schedule where the children spent almost equal time with their parents.
In Magnuson, the court again dealt with a family where both parents appeared to have equally strong relationships with their children. However, the Magnuson court was concerned about the impact of Robbie’s transition from male to female on the children’s stability, and placed the children in the home of the parent they believed to be in a more “stable” place – Tracy.
And finally, in Schroeder, the court faced a tough question – what to do when both parents appear to have difficult relationships with a child? In Schroeder, the court ultimately preserved the status quo – Tracy as Ashley’s primary residential parent – in order to prevent a worsening of the already strained relationships between Ashley and her parents.
In all three cases, we see the court analyzing the strength, nature and, stability of the parent/child relationships involved. We then see the court attempt to formulate a plan which both promotes the parent/child relationship and ensures some level of stability for the children. As we continue to examine the “best interest” standard, we’ll see the theme of stability come up again and again as courts grapple with difficult decisions regarding parenting arrangements.
