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.

* * *

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.