Best Interests of the Child – Past and Potential for Future Performance of Parenting Functions

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 26.09.004 includes 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.

Marriage of Kovacs, 121 Wn. 2d 795 (1993).

The Allens

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.

Marriage of Allen, 28 Wn.App 637 (1981).

* * *

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.

2607 Words

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