November 2003

The Parenting Act and Mediation, Fifteen Years On

by Porter Kelley

This is a story. Human events are usually remembered as a story. I'm going to tell a story of how the 1988 Parenting Act came into being. Most memories are short (mine is); stories have to be retold. This is a story of how a handful of lawyers changed family law in Washington.

An Angry Lawyer

In late November 1982, I was mad. I had just settled a custody case midtrial. Cross-examining the wife, I learned that she was contesting joint custody because, as a teacher, she wanted sole school decision-making authority. When the husband, my client, heard this, he immediately agreed. The case settled. Two days of court time were wasted. The parents racked up thousands in legal fees.
 
Returning to my office, fuming in frustration, I wondered, "Why can't we get rid of 'custody'? Why not just call it 'parenting' and be done with it?" My law partner, Bob Prince, liked the idea.
 
Four months later I heard Dr. John Dunne give a talk about the damage that custody fights inflicted on kids. I asked if he would be interested in working on a parenting act. He immediately agreed. Later, I called Vern Rieke, who had long taught divorce law at UW Law School. Vern liked the idea, too. Within a month we had a committee: John, Vern, me, a couple of judges, including Judge Nancy Holman, Bob Prince, and a group of other lawyers.

The Key Concept

Our central idea was to change the focus of the law from "custody" to "parenting." We all sensed that we were onto something new. But we had no idea we would set a revolution in motion. We were lawyers, after all. We thought we were working on a new legal way of guiding our clients through the divorce process.
 
Seeking to replace "custody" with "parenting," we were delegalizing the process of how couples separated their households and made arrangements for parenting their children. Thus the actual legal forms (comparable to deeds of title) would be duly prepared and given proper authority. Now, in most cases, parents themselves prepare the parenting plans, except in the more contentious cases. So, whenever lawyers, and even judges, use the term "custody" now, they are using an irrelevant word.
 
This may give some legal folks heartburn. A brief recount of history may help.
 
"Custody" has always been, and still is, a legal concept of ownership and control. Parenting of children is the process that people have been doing for millions of years. It was only in latter centuries that men owned all property, including women and children. When divorces occurred, the custody of children naturally went to the fathers.
 
Yet women, throughout human history, have been seen as the primary caregivers of children, particularly in their first years. In the early 20th century, with changing attitudes and increasing divorce, mothers, as primary caregivers, were presumed to get custody of the children, unless it could be proved they were unfit.
 
All of a sudden, men found the tables turned. They'd gotten used to being universally thought of as the head of the household, the captain of the ship, etc.
 
Now the king suddenly found himself thrown out of his realm. He was left to roam the countryside, powerless. Into the bargain, he had to pay for it. The no-fault divorce law, passed in 1973, made things even worse for men. Fathers were automatically cast out of their palaces (however humble), and mothers had the full "care, custody, and control" of the children.
 
As might be expected, open warfare ensued.
 
Fathers, usually having access to more of the family income and money, fought to regain some of their lost power. It was not uncommon (and still isn't) for fathers to claim that the mother was an unfit parent. Mothers quickly realized that having the inside track as the primary caregiver made such claims by fathers all but impossible to prove. Both sides used these weapons vigorously and abundantly.
 
By the 1970s and 1980s, lawyers were worn out. Law practice being essentially the art of compromise, "joint custody" became an instrument for settlement. But what is "joint custody"? I never met anyone who knew.
 
In the 1960s, the mental-health community got into the act. Battles raged across the entire spectrum. Mental-health professionals of all stripes wrote huge volumes of articles advocating arrangements all the way from joint parenting to eliminating fathers completely from children's lives. Into this countrywide maelstrom I naively walked with the innocent question: "Why not just talk about parenting?"
 
So in 1983, our committee struggled to get our minds around how to do what we wanted to get done. At length, we came to understand that the key concept was "functionality": that is, we should focus on the practical plans parents would make to care for their children. (I believe my partner Bob Prince first used the term, but he does not remember the honor. Perhaps it was Vern's idea.) I believe it was this pragmatic approach that appealed to Marlin Appelwick (now on the Court of Appeals), who was then chair of the House Judiciary Committee.1

What Is Parenting? Dunne's Debate

Since we were writing a parenting act, we had to define what "parenting" really was. John Dunne convened a group of child psychiatrists and came up with a definition.
 
A couple of months later, to everyone's surprise, John reported that the attempt to define "parenting" was causing great contention. At one meeting, two nearly got into a fistfight! Somehow, John counseled the doctors into some semblance of consensus, and a nuanced definition of the "parenting function" was hammered out. The definition is now embodied in RCW 26.09.0004 (3)(a) through (f).

The Quiet Revolution

In early 1984, the committee agreed that a policy for the Parenting Act should be stated in the next monthly meeting. I came to the meeting with a draft.
 
I had an agenda. John's "parenting functions" definition was parent-neutral. I wanted to use this neutrality to equalize fathers' roles in the parenting of children. The key phrase was, "The best interest of the child is ordinarily served when the existing pattern of interaction between the parent and child is altered only to the extent necessitated by the changed relationship of the parents or is required to protect the child from physical, mental or emotional harm." (Emphasis added.) This meant that fathers had equal rights to care for the children in the actual parenting arrangements.
 
The expected storm never broke. The committee matter-of-factly reviewed my draft. Vern Rieke suggested some stylistic changes. After a few minutes we turned to other matters. My draft, as refined, is now set forth in RCW 26.09.002. It thus became the public policy of Washington state.
 
Fathers now had equal rights to their children. The presumption that the mother should have custody of the children simply vanished as a legal issue. I was amazed.

A Lousy First Draft

Any new, significant legislation begins with a rough first draft. By June 3, 1985, we had our first draft of the act. We were proud of it at the time. With 18 years' hindsight, though, I think it really was pretty terrible.
 
We had intentionally left out the "primary caregiver" factor in making a parenting plan. Naively, we thought we could negotiate this issue with women's groups. And, unintentionally, we had neglected a dispute-resolution clause. Perhaps more significantly, only a miniscule provision addressing protection in abuse cases was included.2
  
With remarkable naiveté, in June 1985, we revealed our draft in a report to the King County Family Law Section. The draft was duly included in the section's minutes, which were sent out to the entire divorce bar. The whole world now saw it.
 
As we should have expected, all hell broke loose.

Women's Groups Fight Back

The obvious and, then, politically incorrect idea was our committee's attempt to sidestep the primary-caregiver issue. Our lapse mobilized a variety of women's groups. Representative Seth Armstrong, a member of our committee, recognized a political disaster when he saw it. He approached Marlin Appelwick to take us under his wing. Even Marlin, I am sure, did not truly appreciate the task he was taking on.3
 
In 1986-87, women's groups were far stronger politically than men's groups, which surged later.
 
Our committee faced a conundrum: Without including the primary-caregiver standard in determining parenting plans in the act, it was dead. But including the primary-caregiver standard reimported custody concepts we were trying to get beyond.

The Gang of Four

Marlin had a better idea: We had to get our act together. Ada Shen-Jaffe, then head of Evergreen Legal Services, made Kim Prochnau, now a King County Superior Court commissioner, available. John, Kim, Marlin, and I became the Gang of Four. Our committee was closed to outsiders. Marlin stressed that we had to get a coherent and acceptable draft before we again showed what we were doing.
 
We all agreed to this blackout. As we toiled through the summer of 1985, there were many dark murmurings about what we were up to.
 
Kim reminded us of the interests of women's groups over the primary-caregiver issue, but acknowledged the poison-pill effect. Over Labor Day weekend 1985, Marlin spent an entire night redrafting the act, only to have it vanish in the early morning sunlight into his computer. He had to spend the rest of the weekend recreating his draft. (There is a significant place in heaven reserved for Marlin.) Through the winter of 1985 and on into the following spring, we struggled with the primary-caregiver knot.

Marlin's Artful Placement

Kim kept us focused on the fact that the primary-caregiver problem would not go away. The women's groups insisted that the primary-caregiver factor had to be, well, primary.
 
In the early spring, as I recall, Marlin came to one of our by-then-biweekly meetings with an owlish look on his face. I scanned his draft of the factors for residential provision. On my first look he had nicely redefined primary caregiver as the "parent who has taken greater responsibility for performing parenting functions." Well done, but the primary caregiver was not given primacy. I said I believed the women's groups would kill us. Then my eye caught the phrase quietly placed underneath all of the 10 factors to be considered in residential placement: "factor (i) shall be given the greatest weight." No heading, no membership. My eyebrows went up. (I was the nominal representative of the men's groups.)
 
Kim felt this would satisfy the women's groups. I asked whether this would re-arm the men's groups. The primary-caregiver factor was still primary in determining which parent would be given the majority of time. With his marvelous faint smile, Marlin said it might get by the men's groups. It did.
 
Of course there were many other issues to sort out, such as the 50/50 division of residential time that parents still fall for, despite universal disapproval by the professionals. But the major obstacle to legislative passage was now removed.
 
In late spring 1986, Marlin felt confident that our work could be displayed to the outside. A report was sent to the King County Family Law Section, and on to the world.
 
Huge battles loomed ahead. Bar association groups now swung into action, particularly the King County Bar's Family Law Section. Members of the WSBA's Family Law Section had concerns. In the fall of 1986, and on into the legislative session in February through March 1987, the meetings were long and numerous. Crucial votes of members of the different committees came, were deferred, and were reconsidered. On one evening, Marlin pleaded on the phone with me after the state section meeting: "Please give me some good news." Sadly, I could not. But Marlin persisted. We all persisted. Refinements were made and remade, particularly concerning protection for abuse cases in Section 10, now 191.4 
 
Of course, the primary-caregiver factor is now widely accepted and followed, and fathers' equal rights for the care of their children in consideration of parenting-plan cases is never questioned. But other factors do come up.
 
This quiet revolution has remained a very quiet revolution.
 
The WSBA Family Law Section approved the draft. With Marlin as chair, it cleared the House Judiciary Committee. It was pushed through the House by Marlin, and the Senate agreed. Governor Booth Gardner was pleased to sign the act.

The Lawyers' Winter of Discontent and the Public's Acceptance

The vast majority of lawyers were appalled at the new complexity the act added to their work. In November 1987, a CLE seminar presided over mainly by Marlin, Vern, and me was attended by more than 500 very unhappy campers.
 
But the public loved it. Mothers as well as fathers, whenever I discussed it, on TV or with individuals or groups, were extremely happy with the new way of doing things.
 
In 1999, the Supreme Court commissioned Dr. Diane Lye to conduct a major review of the Parenting Act. She held at least 12 focus groups of interested public people, both fathers and mothers. These groups were located not only in western Washington but all over eastern Washington. She found that both fathers and mothers universally accepted the Parenting Act. Their only complaint was that the act wasn't implemented completely.
 
Dr. Lye interviewed mental-health counselors, from child psychiatrists to family counselors. She also interviewed many lawyers, judges, court commissioners, and other legal professionals. She found that professionals universally accepted the Parenting Act.
 
In 2001, at a meeting of Supreme Court commissioners, I spoke with Marlin about Dr. Lye's findings. He was as astounded as I was. Everyone accepted the idea that fathers are equally important to children.

The Quiet Transformation We Lawyers Missed

Lost in this fog of war was the outcome none of us had anticipated. By eliminating "custody," parenting issues in divorce were recognized for what they were: parenting issues, not legal issues. Our original concept that function should drive parenting issues was now universally accepted.

The Rise of Mediation

With the delegalization of parenting in divorce or in parentage actions, parents can now decide for themselves what they will do and how they will do it.
 
Parents in divorce cases, like all people, need a sense of control of their lives. The Parenting Act gives them this sense of control. What we lawyers did not see coming was that parents would take matters into their own hands. They would do their parenting plans themselves. Thus the pro se problem has engulfed the court system. And the court system is withering on the financial vine. As we all now know, this has resulted in major headaches for the courts when people do not fill out the mandatory forms correctly.
 
In 2000, Kim Prochnau reported that in well over 60 percent of all divorces, at least one of the parties is not represented by a lawyer. She has recently told me that this percentage continues to rise.
 
John Dunne confirms what we in the Gang of Four feared about increased conflict between parents. Our two-year struggle was not hypothetical.
 
But lawyers are too expensive. Even mental-health investigation reports are beyond the budgets of low-income parents.
 
Dr. Dunne's advice was that early mediation is the only answer. Mediation before filing is in fact the ultimate answer.
 
That is not the reality today. But a start has been made. Three years ago, with the agreement of the King County Family Law Section, I started an Early Mediation Program with the King County Bar Association. It is offered at a low-income fee of $100 per hour for the first three hours. It simply needs to be used. Higher-income families can also use the program, but without the $100-per-hour cap.
 
In 1991, the King County clerk reported that only 1.3 percent of dissolution actions went to trial. For all practical purposes, we can figure a divorce case will settle. So the sooner the settling process begins, the better. The Early Mediation Program was designed to address this issue, since most people do not have $10,000 or more lying around for parenting battles.
 
Dr. Dunne remains correct. Mediation must begin before the guns go off.
 
If lawyers and judges will keep reminding themselves that parenting is really a natural function, even in divorce, the legal profession and the public they serve will be the better for it. 

J. Porter Kelley, who has been in practice since 1962, originated and led the development of the Child Support Schedule, the 1988 Parenting Act, and the 1999 KCBA Early Mediation Program.

NOTES
1. Fast-forward to 2001: Dr. Diane Lye, who conducted a major study of the Parenting Act in 1999-2000, told me the act was "prescient." In one stroke, the whole issue of how arrangements were to be made for care of children when the parents separated became a practical human problem, not a legal issue.
2. John Dunne had expressed concern about abuse cases, but we thought judges would work out the necessary protections in individual cases. In 1985, the nationwide problem of abuse in dysfunctional families was only dimly appreciated outside the mental-health community (and by some lawyers). The seemingly halcyon days, then, were really not so halcyon. The summary treatment of abuse cases in our then-Section 10 has now ballooned into the vast complexity of RCW 26.09.191. (Mary Hammerly, who worked on Section .191, now shakes her head over what she helped create.) The enormity of this national problem is beyond the scope of this article.
3. After the Parenting Act passed in 1987, John Dunne told me that if I ever approached him about any other project, he would run the other way. But John has either forgotten, or forgiven me, for he agreed to write the accompanying article in this issue.
4. But never a word, not a word, was spoken about the policy section giving men equal rights, RCW 26.09.05. Oddly, it has been seldom mentioned in the many court decisions and articles regarding the Parenting Act.

Back to table of contents >>