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.”
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.
Marriage of Littlefield, 133 Wn. 2d. 39.
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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.”