This quiz examines some of the considerations that a court addresses when determining whether to make significant changes to a Parenting Plan, such as by ordering that a child move from living primarily with one parent to the other.

In Washington custody cases, the court’s top priority is promoting a child’s “best interests.”   Another lesser, but still important priority is promoting the child’s relationship with both parents.  Thus, most parenting plans are formulated so that a child spends time with each parent, even when the court has found it best that a child live most of the time with only one parent.

What can a parent, and the court, do when one parent – the parent who has the most time with the child – refuses to allow the other parent see the child?

The first legal remedy for a parent who has been denied rightful visitation with a child is to file a motion for contempt under RCW 26.09.160:

An attempt by a parent, in either the negotiation or the performance of a parenting plan … to refuse to perform the duties provided in the parenting plan, or to hinder the performance by the other parent of duties provided in the parenting plan, shall be deemed bad faith and shall be punished by the court by holding the party in contempt of court and by awarding to the aggrieved party reasonable attorneys’ fees and costs incidental in bringing a motion for contempt of court.

In contempt cases where one parent has refused visitation with the other, the court will usually order that parent (called a “contemnor” in legal jargon) to give the other parent make up time to remedy their violation of the court order. And, under RCW 26.09.260(2)(d), if a parent violates the parenting plan twice in three years, the other parent may file for a modification of the parenting plan, and ask that the child’s primary residence be changed.

While a court will consider changing a child’s residence if one parent refuses to promote the child’s relationship with the other, the court’s ultimate decision will rest on whether such a change is in the child’s best interest.  So, how does all of this play out in real life?  The case of Parentage of Schroeder provides a real-life illustration.

In 1987, Doug and Tracy ended a tumultuous four month relationship.  Shortly thereafter, Tracy discovered that she was pregnant.  According to Tracy, Doug wanted nothing to do with either her or their unborn child after she informed him of the pregnancy.  According to Doug, he was not even aware of the pregnancy until a paternity suit was filed against him in 1988 – after he and Tracy’s daughter, Ashley, was born.

In 1989, Doug was established as Ashley’s legal father.  For the next two years Doug regularly spent time with Ashley, although she  continued to live primarily with her mother, Tracy.  During this time, Doug lived with his parents and Tracy believed that Doug was really just handing Ashley off to his parents during his visits with Ashley rather than caring for his young daughter himself.

In 1991 and 1992, Doug’s parents made two reports to Child Protective Services in which they alleged that Tracy was allowing Ashley to be molested by an unknown individual.  Tracy countered that it was Doug who was molesting Ashley.  Ashley, who had begun to exhibit defiant and angry behaviors, started seeing a counselor.  Although neither CPS nor the counselor found evidence that Doug had indeed molested his daughter, Tracy refused to let Doug see Ashley.

In 1996, Doug filed a petition asking for regular visitation with Ashley.  A two year legal battle ensued.  Tracy argued that it was not Doug, but Doug’s parents who really wanted visitation with Ashley.  A guardian ad litem – a person appointed by the court to represent the interests of a child involved in litigation – conducted an investigation.  The guardian ad litem noted that it appeared that Ashley did not know her father, lending credence to Tracy’s suspicions that it was Doug’s parents who were spending time with Ashley.  The guardian ad litem also found that Ashley, now eight years old, was manipulating both of her parents into continuing their conflict over visitation.

Nonetheless, in 1998 the court entered a parenting plan which provided that Ashley would continue to live primarily with Tracy while having regular and generous time with Doug.  Although Tracy did not appeal this order, she disagreed with it. Just one month after the parenting plan was ordered, Tracy refused to let Doug see Ashley.  The court found her in contempt of the parenting plan and ordered her to provide Doug with make up visits.

Doug, his parents, and Tracy continued to fight over Doug’s visits with Ashley.  Ashley continued to act out and cause problems between the parents.  Tracy continued to refuse Doug’s visits with Ashley.  In 1999, Doug filed a second motion for contempt against Tracy.  He also requested that the court modify the parenting plan to give him primary custody of Ashley,  on the grounds that Tracy violated the parenting plan twice in three years.

Did the Court order that Ashley should live with Doug due to Tracy’s refusal to promote Ashley’s relationship with Doug?

A)  Yes. Tracy was found in contempt of the parenting plan two times in three years, so the court punished Tracy by taking away Ashley.

B)  Yes. The court wanted both parents to have a role in a child’s life.  Because Tracy refused to let Ashley see her father, the court ordered that Ashley should live with Doug  so that she could develop a relationship with him.

C)  No. The court found that Tracy refused visitation for a good a reason, so she should not be ordered to release Ashley to Doug.

D)  No. The court found that even though Tracy violated the parenting plan two times in three years, it was not in Ashley’s best interests to live with her father.

Answer: D.  The Schroader court found that Ashley should continue to live with her mother:

In Washington, the best interests of the child shall be the standard by which the court determines and allocates the parties’ parental responsibilities … While courts also should encourage the involvement of both parents, this is a secondary goal and courts should never sacrifice the best interests of the child to allow both parents to be involved.

Although the Schroeder court acknowledged that Tracy had consistently violated the parenting plan by refusing to let Doug  see Ashley, the court ultimately noted that it could:

not order a change of custody merely because the custodial parent was in contempt of a court order; rather, there needed to be a finding that a change of custody was in the best interests of the child…  It would be inappropriate to sacrifice the best interests of the child based on the misconduct of one parent.

In other words, even though the court may modify a parenting plan when one parent refuses visitation, the court should not modify a plan unless that modification is in the child’s best interest.  See Parentage of Schroeder, 106 Wn. 343 (2001).

The Schroeder case not only demonstrates how important the “best interests” standard is, it also highlights difficult it can be to determine exactly how to promote a child’s best interests when two parents simply cannot get along.  Even though the court acknowledged that Tracy was violating the parenting plan and stifling Ashley’s relationship with her father (and her paternal grandparents), the court also believed that making Ashley live with her dad was not likely to strenghten her relationship with him.  No doubt this was a tough decision that did not have a perfect result for Tracy, Doug, or even, most importantly, Ashley.  Schroeder shows how a court attempts to make the best decision for a child even when there are no easy answers.