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.
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.
See Marriage of Jacobson, 90 Wn. App. 738.
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 the then unknown impact of Robbie’s surgery on the children, and ultimately, the stability of the household in which the children would live.
See Marriage of Magnuson, 141 Wn. App. 347.
Doug Brester & Tracy Schroeder
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.
See Parentage of Schroeder, 106 Wn. App. 343.
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.