August 2001

Washington Rejects "Friendly Parent" Presumption in Child Custody Cases 

by Margaret K. Dore and J. Mark Weiss

Is it necessary for children to have regular contact with both parents after a dissolution? In many states and in Canada, where the "friendly parent" presumption is an important factor in determining custody, the answer seems to be yes. But in Washington "the best interests of the child" remains the standard, and that means that there is no automatic right of contact between children and noncustodial parents. It also means that courts should think twice before allowing children to become pawns in disputes between parents.

In 1997, our Supreme Court held that Washington law does not presume that "frequent and continuing contact with both parents is in the best interests of the child." Marriage of Littlefield, 133 Wn.2d 39, 940 P.2d 1362 (1997). In 1998 and 1999, the Legislature refused to overrule that decision and pass legislation adopting the "friendly parent" concept.

Now, three recent Court of Appeals decisions have clearly rejected the friendly parent concept: Custody of Nunn, 103 Wn. App. 871, 14 P.3d 175 (2000), Lawrence v. Lawrence, 105 Wn. App. 683, 20 P.3d 972 (2001), and In re Parentage of Schroeder ___Wn. App. ___, 22 P.3d 1281 (2001). Indeed, Lawrence expressly holds that "use of the friendly parent concept in a custody determination would be an abuse of discretion." Lawrence, 20 P.3d at 974. Lawrence is the first reported decision in the United States and Canada to both identify the concept by name, and reject it.

The Friendly Parent Concept

Under the friendly parent concept, custody is awarded to the parent most likely to foster the child’s relationship with the other parent, i.e., the "friendly parent." The concept is the underlying basis for statutes that require a court to consider which parent is more likely to allow the other parent "frequent and continuing contact" with the child as a factor for custody. Cf. Lawrence, 20 P.3d at 974.

In practice, courts determine which parent is the "friendly parent" by examining parental behavior. Friendly parents are those who do not make allegations about the other parent, do not withhold access to the child, and are cooperative. Conversely, unfriendly parents are those who make allegations, are "alienating," and withhold access. The friendly parent gets the child, or at least more time with the child.

On first look, the friendly parent paradigm is an appealing test for custody. We would all like to see friendlier parents. The problem is that custody becomes a reward or punishment for behavior unrelated to a child’s best interests. The results of a friendly parent analysis can be bizarre and have nothing to do with what’s best for children.

The friendly parent concept rewards manipulative litigation tactics. The following example comes from an unreported Washington case.

The child, who lived with the mother in the family home, had recently had open-heart surgery and was extremely ill with a high fever. The father, seeking to show that the mother was the unfriendly parent, moved for immediate visitation outside the home on an alternating, every-other-day basis. The mother, of course, objected because of the child’s health. Through her objection, the father obtained his proof that the mother had restricted his access to the child; therefore she was "unfriendly."

In this same case, the father obtained a restraining order prohibiting the mother from entering his apartment — and then invited her in. The mother accepted because she hoped to reconcile. This occurred on several occasions. Subsequently the police were called and the father denied his invitations. Once again, the father obtained proof that the mother was "unfriendly." She had violated a court order; she was uncooperative and alienating. The father repeatedly utilized such tactics to paint her as the unfriendly parent.

At trial, the court was offended by the mother’s violation of its order and her behavior. The father was awarded custody, the family home and child support. A few months after trial, the father returned the child to the mother’s care, but he retained the family home.

It is now two years later. The mother continues to pay the father child support although she has the child. She does not go back to court because she fears losing the child, stating that she has no faith in the system. This result is not atypical for a case decided via the friendly parent concept.

The friendly parent concept can place a parent in a no-win "Catch 22." This fact is illustrated by Custody of Nunn. In Nunn, the child’s aunt brought a custody petition against the mother, claiming that she was unfit due to prostitution and alcohol abuse. Although the petition was unfounded, the trial court nonetheless awarded custody to the aunt, because by fighting the petition, the mother "alienated" the aunt and other aligned persons, and failed to support the child’s relationship with these persons. See Nunn, 103 Wn. App. at 888. If the mother had not fought the petition, she would have likely lost on the merits. But by fighting the petition, she lost as an unfriendly parent, finding herself in a no-win "Catch 22."

In Nunn, the Washington State Court of Appeals reversed, and although its opinion does not use friendly parent terminology, it nonetheless rejects the trial court’s friendly parent reasoning. Nunn states:

And so the question boils down to this: Can an otherwise fit parent be found unfit because she chooses to fight a ... custody petition, because she openly expresses her dislike of the side of the family that brought the custody petition, ... and because she doesn’t foster a good relationship between her child and all of those people?

The answer is no. Nunn, 103 Wn. App. at 887-888.

Two months later, the Court of Appeals issued Lawrence, holding that use of the friendly parent concept "would be an abuse of discretion." Lawrence, 20 P.3d at 974. Most recently, it issued Parentage of Schroeder, where a contempt citation for withholding visitation did not justify a change in custody.

In the context of domestic violence, the "Catch 22" of the friendly parent concept can be deadly. In jurisdictions where the friendly parent concept is the law, a mother who tries to protect her child from a violent father, e.g., by limiting access to the child, risks being perceived as unfriendly. If this occurs, custody could be transferred to the violent father. While this may seem absurd, it occurs in practice.1

With such risk, a mother could rationally choose to keep the father’s violence to herself. To avoid looking unfriendly, she would also not inform the court if the father is irresponsible, abusive or neglectful. This is the silencing effect of the friendly parent concept. The mother is rendered powerless to protect her child. Commentator Joan Zorza states:

[Friendly parent provisions] reinforce learned helplessness in the victimized parent by encouraging her to suppress her complaints for fear that she will lose custody if she flees, denies her abuser visitation, or complains about his abusiveness in court.2

A similar situation would exist if the gender roles were reversed.3 Regardless, the friendly parent concept is a dangerous test for custody. Its use is contrary to the interests of children.

The friendly parent concept has a warm and fuzzy name. But on close analysis, it is ultimately absurd and indeed dangerous for children. Washington has now taken important steps to reject it. Hopefully other jurisdictions will have the foresight and the courage to follow our state’s lead, increasing the likelihood that children will be protected in the context of dissolution.

Margaret K. Dore practices appellate law in Seattle. She was counsel of record for the appellant in Lawrence v. Lawrence. Her publications include other articles on the friendly parent concept.

NOTES

1. Joan Zorza, "Friendly Parent Provisions in Custody Determinations," Clearinghouse Review, Vol. 26, No. 8, December 1992, p. 924-925; Mary Ann Mason, Ph.D., JD, "The Custody Wars: Why Children Are Losing the Legal Battle and What We Can Do About It," NY, Basic Books, 1999, p. 152; and Margaret Hagen, Ph.D., "Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice," Regan Books, 1997, pp. 210-212 (describing a friendly parent analysis in the context of abuse without identifying it by name).

2. Joan Zorza, "Friendly Parent Provisions in Custody Determinations," Clearinghouse Review, Vol. 26, No. 8, December 1992, p. 925.

3. The friendly parent concept is most often employed against the custodial or primary parent, typically the mother. It is less often employed against fathers. Cf. Joan Zorza, "Friendly Parent Provisions in Custody Determinations," Clearinghouse Review, Vol. 26, No. 8, December 1992, p. 924.

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