Mothers Of Lost Children -
by Margaret K. Dore, Esq., 2001©
[Published: Washington State Bar Association, Family Law Section Newsletter, Fall 2001].
Different versions of this article have previously run in the following publications: Domestic Violence Report (August/September 2001); Washington State Bar News (May 2001 and March 1999); Snohomish County Bar News (2001); Clark County Bar News (June 1999); and the Washington State Bar Association Family Law Section Newsletter (Spring 1999).
SSB 5511 died in the House. It was opposed by the Washington State Coalition Against Domestic Violence, the Northwest Women’s Law Center, other similar groups and various individuals, both Republican and Democrat. One representative’s staff told the author that constituent contacts were 95 percent against passage. The friendly parent issue is likely to resurface in the upcoming legislative session.
Substitute Senate Bill 5511 would have added a “friendly parent” provision to Washington’s criteria for establishing permanent parenting plans, RCW 26.09.187. If enacted, trial courts would have been required to consider the following phrase as a factor for custody:
which parent is more likely to allow and encourage the child frequent and continuing contact with the other parent.
SSB 5511, §3.
The bill’s backers promoted it as encouraging parents to work together. 1Unfortunately, enactment would have the opposite effect. Litigation and conflict between parents will increase. There will also be reduced access to the courts, justice and equal application of the law.
Under the friendly parent concept, primary custody is awarded to the parent most likely to foster the child’s relationship with the other parent, i.e., the “friendly parent.” The parent not awarded custody is thereby determined to be less friendly or “unfriendly.”
In practice, trial courts use friendly parent provisions to punish parents for perceived “bad behavior,” e.g., making allegations about the other parent, withholding access to the child or being uncooperative. Parents who engage in such conduct are in effect punished with loss of custody. The interests of the child are rendered secondary. Commentator Mary Ann Mason states:
The transfer of custody to the “friendly parent” more often is done to punish the other parent rather than to meet the needs of the child. 2
The friendly parent concept is therefore contrary to current law that custody be determined via the “best interests of the child.” RCW 26.09.002.
Washington’s Rejection of the “Friendly Parent” Concept.
Bills similar to SSB 5511 have been rejected by the Legislature nearly every legislative session since 1982. 3For this reason, Lawrence v. Lawrence, ___ Wn. App. ___ (Div. I 2001), holds that “use of the friendly parent concept in a custody determination would be improper and an abuse of discretion.” (Slip Opinion, p. 3). Lawrence also states:
The Legislature’s rejection of this rule is consistent with our state’s policy that “custody and visitation privileges are not to be used to penalize or reward parents for their conduct.”
Id., p. 4.
Similar holdings are found in: Schuster v. Schuster, 90 Wn.2d 626, 630, 585 P.2d 130 (1978)(”custody of a child is not to be used as a reward or punishment for the conduct of the parents”); and Custody of Nunn, 103 Wn. App. 871, 887-88, ___ P.3d ___ (2000) (reversible error to find the mother unfit due to her failure to foster a good relationship between the child and the deceased father’s family).
Current Use of the Friendly Parent Concept.
Despite rejection by both the Legislature and the appellate courts, the friendly parent concept is used in a significant minority of child custody cases. 4From the author’s view point, this failure to follow the law is due to the influence of certain parenting evaluators and attorneys.
With use of the friendly parent concept, the trials in these cases are rendered longer and are more emotionally charged. [They are characterized by aggressive litigation tactics.]
Subjective and Speculative Proof.
Under the current statute, the factors for custody are for the most part objective based on existing facts, e.g., which parent has taken greater responsibility for the child’s daily needs, each parents’ past parenting and the child’s existing relationship with siblings. RCW 26.09.187(3)(a).
Proof of the friendly parent concept is more subjective, as it is based on a future projection that one parent will more likely support the other’s relationship with the child. Supporting evidence can thus be more loosely based. For example, a parenting evaluation reviewed by this author cited “vibes” reported by a third party (the third party didn’t “get any vibes” that the mother would support the father’s relationship with the child).
In this same case, the trial judge adopted the evaluator’s opinion that the father would be the friendlier parent. Custody was transferred to the father who lived in another state. The child, who was two years old, had always lived with the mother. He was traumatized by the sudden move. Previously described as open and adventurous, he became insecure and “clingy.” Such was the result of the friendly parent rule.
Under SSB 5511, the friendly parent rule will become the norm. Children and their families will more likely be subject to custody determinations via speculative evidence (the “vibes” test and more). The best interests of the child as the standard for custody will be displaced.
Increased Litigation and Conflict.
The easiest way to prove that a parent is friendly is to prove that the other parent is unfriendly. Parents are therefore encouraged to create situations, which induce the other parent to refuse visitation, be uncooperative or otherwise look unfriendly. The following example may seem extreme, but it is from an actual case:
The child lives with the mother in the family home. He has recently had open heart surgery and is extremely ill. The father, seeking to show that the mother is unfriendly, moves for immediate visitation in the father’s apartment on an alternating, every other day basis.
The mother, of course, objects.
Through her objection, the father obtains his proof. She has demonstrated her intent to restrict his access to the child, to be “unfriendly.”
In this case, the father repeatedly utilized such tactics. He was thereby awarded custody, the family home and child support.
More Tactics.
For those with a lower budget, aggressively worded letters that the other parent is being uncooperative can be effective. The matters presented in such letters can be trivial. But if the other parent does not respond, his or her failure to do so can be seen as an admission to the letter’s content, that he or she is in fact uncooperative and “unfriendly”.
For the receiving parent, the prudent course is to respond, and perhaps to respond with equal aggression, i.e., that it is the initial parent who is being uncooperative. In the year or so pending trial, this “dance” can then be repeated with the next issue over and over again.
Another ploy is for a parent to allow the other parent to have the child, but then claim that the time was unauthorized; that visitation was in fact denied and the other parent is “unfriendly.”
All such games and posturing, and defense against such games and posturing, cost money. The combined fees for parents soar. The author has seen combined fees in excess of $200,000.00. There is also the emotional toll on the parents, the children and the family unit as a whole. There is the waste of judicial resources to resolve manufactured disputes. Should SSB 5511, the proposed friendly parent bill, be enacted, game-based custody determinations will become more prevalent.
The Friendly Parent Concept puts Children at Risk.
The friendly parent concept puts children at increased risk of abuse, violence and neglect at the hands of a parent. This is because a parent who raises these concerns can be perceived as “unfriendly” to justify a change in custody, i.e., to the abusive, violent or neglectful parent. 5With such high stakes, parents with these concerns may choose to forgo disclosing them. Mary Ann Mason states:
[M]others who fear abuse are better off keeping it to themselves, or they risk losing custody of the children they are trying to protect. 6
The friendly parent concept thus has a chilling effect regarding matters that put children at risk. 7It obstructs the protection of children.
Uniformity of Decision Making; Bias.
With the subjectivity of the friendly parent determination, trial judges have more discretion. If SSB 5511 is enacted, custody decisions will be more heavily based on the values of individual judges. There will be less, if any, uniformity of decision making. This will contribute to a perception of unfairness by the public.
There is also evidence that the friendly parent rule is applied disproportionately against women. 8Indeed, this author has met but one father who lost custody under a friendly parent analysis. Such disproportionate application will also contribute to a perception of unfairness.
No Access to Justice.
Justice requires that persons in like situations be treated the same regardless of individual attributes. It requires that both sides be heard. Only in this way can there be a perception of fairness and legitimacy for the rule of law.
The opportunity for justice is reduced with the friendly parent rule. Its reliance on trial court discretion works against uniformity and equal application of the law. Its chilling effect reduces the flow of information so that one side or the other is not heard. And then there is the reward for manufactured disputes. The best interests of the child are lost in the shuffle. In fact, children are placed at increased risk of abuse, violence and neglect.
Washington should hold its course of nearly twenty years. SSB 5511 should be firmly and flatly rejected. Only then can the friendly parent concept be eliminated from use and children protected.
1 House Bill Report, SSB 5511, March 30, 2001.
2 Mary Ann Mason, PhD, JD, The Custody Wars: Why Children are Losing the Legal Battle and What We can Do About It, NY, Basic Books, 1999, p. 169.
3 Lawrence v. Lawrence, ___ Wn. App. ___ (Div. I 2001), Slip Opinion, p. 4.
4 Margaret K. Dore, The “Friendly Parent” Concept: At Odds With the Parenting Act, Washington State Bar Association Family Law Section Newsletter, Spring 1999 (the friendly parent concept is a “troubling trend”).
5 Mary Ann Mason, Ph.D., J.D., The Custody Wars: Why Children Are Losing the Legal Battle and What We can Do About It, New York, Basic Books, 1999, p. 169.
6 Id., p. 164.
7 Accord. Joan Zorza, “Friendly Parent Provisions in Custody Determinations”, Clearinghouse Review, Vol. 26, No. 8, December 1992, p. 923, right hand column, 2nd ¶, last line (”these provisions effectively chill the right of any parent to raise even the most meritorious claim”).
8 Joan Zorza, Friendly Parent Provisions in Custody Determinations, Clearinghouse Review, Vol. 26, No. 8, December 1992, p. 924. .
Margaret K. Dore is an appellate lawyer in Seattle. She is counsel of record for the appellant in Lawrence, supra. Her other published decisions include issues regarding local improvement districts, insurance law and bankruptcy. She is a guardian ad litem for King County (guardianship and probate panel). www.MargaretDore.com.
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