November 2001

Letters

Bar News has received an overwhelming response to the article "Washington Rejects 'Friendly Parent' Presumption in Child Custody Cases" published in August (p. 32). Here, the authors respond.

What Is the Friendly Parent Concept?
The letter from attorney Doug Becker does not agree with our statement "under the friendly parent concept, primary custody is awarded to the parent most likely to foster the child's relationship with the other parent." (October Bar News, p. 7, ¶4). The statement is, however, accurate per case law and published commentary. See, e.g., In Re Marriage of Lawrence, 105, Wn. App. 683, 687, 20 P.3d 792 (2001) and Joan Zorza, "Protecting Children in Custody Disputes When One Parent Abuses the Other," Clearinghouse Review, Vol. 29, No. 12, April 1996, p. 1122.

Mr. Becker also states: "[a] friendly parent is one who does not make unfounded allegations about the other parent, does not withhold access without basis, and is cooperative when appropriate." He states that when making the friendly parent determination, courts look to whether these behaviors are "well-founded or at least in good faith." (Id.).

These factors can be part of a friendly parent analysis. Rather than focus on the child's needs, the court's inquiry shifts to the marital dispute, e.g., which parent was uncooperative when; were the parents' actions toward each other in good faith or bad (friendly or unfriendly). The child custody dispute morphs into a dispute about marital conduct. The interests of the child become secondary.

The Friendly Parent Concept in Practice
The letter from Doug Martin provides an interesting example (p. 10, ¶1). He states: "The real Catch 22 is the father who faces the typical 'every other weekend' schedule during the interim proceedings. If he fights to see his child(ren), he is engaged in the abusive use of conflict or found to be intransigent and loses. If he doesn't fight to see his child for more than this, he has abandoned the child and loses." Mr. Martin states that he knows of one father "who was found intransigent and fined $25,000 for simply going to trial with the position of 'near equal,' or in the alternative, 'father majority residential parent.'" Mr. Martin states that there "wasn't even a hint of .191" (the father had clearly not engaged in behavior that would justify a restriction under RCW 26.09.191).

Given that Mr. Martin has fairly presented the facts, what he describes is an application of the friendly parent concept. The father lost the case simply because he was uncooperative with the mother's position, i.e., he asserted that he should be designated primary parent. The example does not demonstrate an "abusive use of conflict" because there was no basis for a restriction. Cf. RCW 26.09.191(3)(e); Marriage of Wicklund, 84 Wn. App. 763, 770, 932 P.2d 652 (1996); and Marriage of Littlefield, 133 Wn.2d 39, 55, 940 P.2d 136 (1997).

A fundamental danger of the friendly parent concept is that it results in ad hoc decision making. Rather than apply an objective and uniform standard, the judge applies his or her own values with regard to gender roles, litigation conduct, and parenting in general. Mr. Martin implies that this is what occurred in his example. The trial court did not see the father's advocacy as "paternal concern," but as unfriendly conduct.

Friendly parent legislation has been rejected by our Legislature nearly every session since 1982. Lawrence, 105 Wn. App. at 687. It has also been rejected by our appellate courts. Id. Washington should hold its course of nearly 20 years. A friendly parent factor is not in the interest of children.

This letter is in response to the article by Margaret Dore and J. Mark Weiss criticizing the "friendly parent" criteria as a factor for residential placement (child custody).

The notion of requiring divorcing spouses to support each other's relationship with their children is superficially appealing. In practice, the "friendly parent" determination is both subjective and speculative. Parenting evaluators interview the contending parents and third parties in private without procedural safeguards, and receive communications from the parents and their counsel which are kept from the other side.

The friendly parent bias of the evaluators stimulates the interviewees to report "unfriendly" incidents. The evaluators reserve to themselves the determination of the credibility of the persons interviewed. Conducted in this secret fashion, these parenting "investigations" resemble inquisitions — lacking due process and completely at odds with our judicial traditions and values.

In making the friendly parent determination, many evaluators integrate personality profile testing such as the MMPI into their investigations. Profile testing employs actuarial assumptions and probabilities as its "diagnostic" method. While the publishers of such tests caution that the results are "probabilistic" and therefore not predictive of future behavior, the evaluators employ the results to predict which parent will be more friendly. This is a prime example of "junk science."

The investigations themselves encourage alienating, "unfriendly" conduct. The parents know that whomever manages to convince the evaluator of the other parent's unfriendliness gets the winning recommendation. This motivates exaggeration, distortion and outright lying. The evaluators self-righteously claim that their clinical experience enables them to see through this conflicting "dirt," and to predict the friendlier parent with certainty. This is the ultimate of hubris.

The article's observation that application of the friendly parent criteria needlessly aggravates an already difficult conflict and tends toward solutions which are bad for children is accurate. With its publication, Bar News does a great service to children and their families.

I am writing in support of the assessment done by Ms. Dore and Mr. Weiss in their recent Bar News article regarding the so-called "friendly parent" concept. In my practice, I almost exclusively represent survivors of domestic violence, or parents whose children have been abused by the other parent. The idea that I may someday soon have to litigate these cases in a world where the "friendly parent" has an advantage is frightening to say the least.

Judges look at cases as a whole. There is no existing way in which DV cases are filtered out, and then examined differently than cases without domestic-violence allegations. Although I would, and have, argued that judges should look to the .191 factors first, and only if they do not exist — then move on to the best-interest factors in section .187 of the statute, I don't think this always happens in practice.

In the proposed "friendly parent" legislation from last session, I saw no practical guidelines that would empower judges to look to see if domestic violence exists first, and only then move on to look at the other factors, including that of who has been the so-called "friendlier" parent. I was also appalled at the fact that the version of the bill that had the support of the WSBA Family Law Section would unweight the "primary caretaker" prong of the statute. Why is the section willing to lend its support to essentially undo the entire parenting act without ensuring that a full and open debate takes place about it first?

Cases are not litigated in parcels or by issue. To those who insist that domestic violence or abuse allegations are made lightly, or are useful as a way to get a leg up in a parenting dispute and therefore would be relevant to note in the assessment of whether a parent was "friendly," I ask if you have actually tried to get a .191 limitation in a final parenting plan recently? In my experience, such restrictions are difficult to obtain at trial, even in the face of physical documentation of abuse and injury.

And what about the process by which a court would do that first look to determine whether the case has credible DV allegations, and therefore should be exempted from the friendly parent factor (if such an exemption existed in the legislation)? At trial, I have had judges decline to make a finding of a history of domestic violence and yet order the opposing party into batterer's treatment, indicating that the court believed there was some credible evidence that the opposing party actually abused my client. Even when the court takes a close and careful look at domestic-violence allegations, it does not always see fit to make a DV finding or issue a .191 restriction, even when other facets of its decision indicate that the evidence of DV was credible.

I shudder to think about the process of proving which parent was "friendly" and which was not. We already put neighbors, teachers and friends on the stand to testify to their personal observations about our clients' and the opposing parties' parenting skills. Should we now put them on to testify to how Jane disparaged her husband in a conversation while at the PTA meeting, or how Marcus was really at home during the time he said he couldn't trade visitation days because of a work-related obligation, and therefore could have traded the days? How does that help children? How does it help the court make a more informed decision about where children should live and what time they should spend with their parents?

Family law litigation demands that people open their most private lives and let in the court, parenting evaluators, guardians ad litem, family law facilitators, mental health practitioners and attorneys to take a look around. Parents are expected to expose their most personal experiences and choices to strangers during litigation — and now we apparently might demand that parents appear "friendly" while under this scrutiny, at risk of losing future time with their children.

Do we, as a Bar, really want the court to get involved in such posturing nonsense? Is it important to children for judges to have a mandate placing value on the perception of someone's cooperation with the other parent at a time when the family is breaking apart and every person involved is under tremendous stress? Is it more important to place a premium on superficial friendliness than to ensure that all allegations that a parent is an unsafe caretaker are fully examined? I, for the sake of my clients and the courts, hope our collective answer to these questions is no.

This letter is in response to the article by Margaret Dore and J. Mark Weiss. I am the editor of Domestic Violence Report, a periodical with offices in New York and New Jersey, and with an advisory board of 29 individuals who are located in 16 states. Domestic Violence Report has over 15,000 readers throughout the United States, Canada and other countries. Its distribution is roughly 40 percent to domestic violence programs, 40 percent to academic institutions, and the remainder to medical and mental health personnel, courts, police and prosecutors. Domestic Violence Report is committed to ending domestic violence and protecting children. To this end, Washington's rejection of the friendly parent concept is welcome news.

On the surface, friendly parent provisions, requiring consideration of which parent is more likely to provide "frequent and continuing contact," are appealing. In practice, and whether as a factor or presumption, they make it far more likely that a violent, abusive or neglectful parent will be awarded full custody of a child. For children of victims of domestic violence, they provide a dangerous and absurd test for custody.

Indeed, friendly parent provisions make it all but impossible for a mother to raise legitimate issues which place her child at risk (e.g., if the father has a substance abuse problem, is sexually abusing the child, drives recklessly, or is not appropriately watching the child).

The article by Ms. Dore and Mr. Weiss is a valuable contribution to the emerging commentary on this important subject. Hopefully their article will inspire other states to follow Washington's lead to clearly reject the friendly parent concept. This is an important step to the protection of women and children incident to divorce, paternity and custody cases.

I couldn't agree more strongly with Margaret Dore's article. "Friendly parent" is a misnomer for substituting a process that focuses on how divorcing parents treat each other for one that is child-centered. The current statutes were adopted after much thought and input from child-care experts. They look at who has been the primary caretaker for the child. This process is child-centered, factual, and much less subject to manipulation by the parent who can afford the best attorney and the most money on litigation.

If parents who are currently losing "custody" battles are unhappy with that outcome, they might consider changing their behavior and becoming more intimately involved in their children's lives before their marriage breaks up. That would be a much better solution than creating more fractious litigation, which we all know is one of the worst things that can happen to a child of divorcing parents.

I have viewed with interest the discussion and comments on the friendly parent concept. As a practitioner who does some family law on occasion, I have observed the behavior patterns described in the "friendly parent" article by Margaret Dore and J. Mark Weiss. It has been my observation that the friendly parent criteria can be manipulated, and most often increases conflict among parents already given to manipulative and hostile behavior.

  The true tragedy in this situation is the child or children involved. Individuals engaging in this behavior do not have the best interest of the child as the underlying reason for such behavior. This puts the child and the courts at a disadvantage. The child becomes a pawn in an adult conflict. The court must discern whether the parents' behavior actually represents a true and loving parental interest (as always advanced), or the request is a subtle attempt to use the legal system to hurt an ex-spouse (or soon to be ex-spouse). It is a difficult task even with the assistance of family court services, counselors and evaluators.

  The friendly parent concept tends to increase litigation between parents on an emotional level that is not healthy for the adults, or in the best interest of the child. The Legislature's decision to reject the concept in Washington puts children's needs first and removes a tool that can be used by immature adults to hurt each other without regard to the impact on the children involved.

I read with interest "Washington Rejects 'Friendly Parent' Presumption in Child Custody Cases" in the August Bar News. The issue of the use of the "friendly parent" is a matter of great controversy in the family law bar. Repeated attempts to implement a "friendly parent" presumption have been rejected by the Legislature. I agree in large part with the views expressed by Ms. Dore and Mr. Weiss, and I agree that the adoption of this concept burdens the judges with the application of a concept which is largely unprovable. What is so difficult about "friendly parent" is that the concept seems so transparently "good" that at first glance you cannot imagine why one would not support it. Unfortunately and perhaps surprisingly, the concept cannot be implemented in practice without creating a litigation tool for parents acting in bad faith who are seeking to create conflict.

The proponents of the friendly parent presumption have never clarified how a court is to make this determination. Before the Lawrence case, I saw this concept used by the court or by a psychologist to criticize a parent's conduct immediately prior to or during the actual custody litigation.

This is at best a tragic misuse of the friendly parent concept. If implemented without clarification, the friendly parent concept would be at odds with a parent's implied duty to provide the court with the information required under both RCW 26.09.191 and RCW 26.09.187. The court must place certain restrictions on a parent who is found by the court to engage in conduct such as "physical, sexual, or a pattern of emotional abuse of a child" or a "history of domestic violence." See RCW 26.09.191. The court cannot engage in this analysis if a parent is discouraged from coming forward to allege that the inappropriate conduct occurred.

Let's look at how the court would ordinarily obtain evidence, for instance, of a parent's domestic-violence history. In order for a court to engage in this analysis, the abused party, or a parent seeking to protect an abused child, must present the evidence to the court. In custody litigation, this evidence could appear in many forms, but typically a parent would submit a declaration for a hearing to adopt a temporary parenting plan along with any other admissible evidence (e.g., pictures). He or she would likely be interviewed by a forensic psychologist or a guardian ad litem, and finally present testimony at a trial or evidentiary hearing.

Under the friendly parent concept, the parent bringing forth evidence of the other parent's past "bad" behavior would be subject to criticism as the "unfriendly parent" from the moment the first declaration is filed. The other parent will naturally respond by accusing the first parent of manufacturing the allegation for the purpose of influencing the custody litigation. This strategy is used to muddy the waters so that it is more difficult for the fact-finder to determine by a preponderance of the evidence that the alleged conduct has occurred.

As it is, many victims of domestic violence are afraid to come forward because they fear retaliation by the other parent. I have heard many clients tell me that the only reason they are leaving an abusive or battering relationship is that they want to protect their children. These clients, faced with the prospect of being attacked as the "unfriendly parent," may never leave these relationships, and as a result, those children will remain at risk. Alternatively, the clients who find themselves in custody litigation will not come forward with the relevant evidence, and the court will never be in a position to protect that parent or his/her children.

I have heard proponents of the concept argue in response that the solution to this problem is to require the court to apply the concept only in circumstances where there is no finding of domestic violence under RCW26.09.191. This proposal ignores the practical realities of the litigation system where each side takes an adversarial position and the court hears all evidence in one proceeding. A parent defending against an allegation of domestic violence will inevitably come into court wielding the friendly parent concept as a sword. In my experience, judges are reluctant to find that a parent has a history of domestic violence, in part because of the significant consequences set forth in the statute (i.e., mandatory restrictions on decision-making authority, dispute resolution, and limitations on residential time). The most effective use of a friendly parent strategy is its use in opposition to a request for a finding of domestic violence or other behavior which would subject a parent to restrictions under RCW 26.09. 191, regardless of how the friendly parent concept is codified in the statute.

Moreover, many clients are faced with the practical realities imposed by a limited litigation budget. A client with a legitimate domestic violence history may be unable to afford to go to trial to request the finding of domestic-violence from the court. If that client chooses to settle without such a finding in an agreed parenting plan (a likely inevitable consequence of settling), then the other parent can use the friendly parent concept as a tool to lay the foundation for a post-decree modification action by creating circumstances where the abused parent looks unfriendly after the decree has been entered.

For instance, the manipulative parent would engage in a pattern of telephonic harassment and then allege that the other parent was unfriendly because that parent refused to answer the telephone when the parent "called to discuss the children." The manipulative parent would agree to swap weekends with the other parent, and then call the police to document that visitation has been withheld during his/her weekend. Then, when the manipulative parent seeks primary residential care via a petition for modification, the other parent is at an inherent disadvantage because the modification statute disfavors the consideration of predecree facts, and that parent's ability to raise the domestic-violence history from before the decree may have been compromised.

In sum, I suggest that the friendly parent concept cannot be applied to behavior which occurs in the context of the custody litigation, and as a practical matter, I see no way to determine who is the more friendly or unfriendly parent without creating these unintended consequences. Proponents of the friendly parent concept have done a good job of raising a troubling issue: How can the adversarial court system encourage parents to be cooperative for the benefit of their children? Unfortunately, the friendly parent concept is not the answer.

I was appellate counsel for the mother in the Custody of Nunn case that was "explained" in an article in the August Bar News. I had a hard time recognizing the case after the authors finished cramming it into their "friendly parent" paradigm. You would never know from their description that Nunn was a third-party custody case, applying for different standards than those used in establishing a parenting plan for divorcing parents. Characterizing Nunn as a "friendly parent" case is stretching things, to say the least.

There should be nothing extraordinary or wrong with a court considering which parent will facilitate contact within a family in deciding a residential plan for the children of divorcing parents. Unfortunately, false and exaggerated claims of "abuse" and other misconduct are made every day in our courts in order to gain unfair advantage in parenting disputes, with little regard to the long-term consequences to the family.

A parent's abusive use of the court system in this manner can and should be considered in making parenting-plan decisions. Yet it is just as often the parent who challenges misleading claims of misconduct who is excoriated as an advocate of the "friendly parent" concept. Hostility and conflict between parents is rarely in a child's best interests. None of the cases cited in the article prohibits consideration of a parent's hostile attitude toward the other parent.

I suggest that we all try to decide what cases mean by looking at what the judges wrote. The appellate court in Nunn held that a parent could not be found to be unfit, and custody of her child awarded to a third party, simply because the parent resisted untrue allegations. Reliance on Nunn to support the authors' agenda of eradicating use of the so-called "friendly parent" concept is misplaced.

While impressed by the research in Coreen R. Ferencz's article "Child Support and Wealthy Parents: How Much Is Too Much?" (August Bar News, p. 22), I cannot agree with final conclusions to place the burden upon the presumably less wealthy parent to itemize the "needs" of the children to receive support commensurate with a wealthy parent's ability to pay. What an additional boon such a privilege would be for the wealthy that now they don't even have to pay child support as a percentage of their income like the rest of us "Muggles,"1 but may even pay far less if they can prove by virtue of their stinginess that their children need less.

Ms. Ferencz's argument seems to be that support awards which exceed the actual needs of the child are not child support, but either 1) an unfair windfall to the custodial child via distribution of a part of the obligor's estate, or 2) unfairly deprive the noncustodial parent of the right to take part in discretionary spending decisions for the child. In fact, noncustodial parents can make all the discretionary spending decisions they want to during their residential time with the child. A child is most likely to emulate the parent they respect most, whether that person is a miser or a spendthrift. I don't see how requiring a parent to list their child's actual needs, which may include a large mortgage, security system, entertainment center, etc., all of which may be argued are paid to keep the child in the same living standard established by the parents, will feel less like a partial distribution of the wealthy obligor's estate.

Ms. Ferencz concedes that a rule based upon the actual needs of the child will lead to some inconsistency and unpredictability in cases with each side itemizing the child's needs, but she believes it will bring decisions closer to the true purpose of child support, which she reasons will benefit both parents and the child.

But the ensuing litigation would likely result in the greatest windfall for family law attorneys. We attorneys could put in our two cents about how and where to spend the most money on one's children to increase child-support awards. I'm sure there would be a plethora of cases which tried to distinguish "actual" needs with "basic" needs of a child. The court file would be loaded with receipts offered by the custodial and noncustodial parents and the rest of us looky loos could see where the rich spend their money. But the bottom line is that all this litigation would likely only hurt both parents and children.

Predictability and stability in family law are to be cherished. Even with the mandatory child-support schedules in place, divorcing parents still manage to find all kinds of issues to argue. In those cases where income is not disputed, the mandatory schedules make a nice starting point from which parties have been forced for the most part to agree. It is also a simple fact that the more contentious two parties are, the worse divorce can be for the children. This fact cuts across all economic lines. Children of rich parents suffer no more or less than children of poor parents over the splitting of their families.

While I agree with Ms. Ferencz that there is hopelessly little guidance in Washington for courts to set support for couples with net incomes which exceed $7,000 per month, I would skip the laundry list of need-based support in favor of either encouraging the Legislature to adopt a higher threshold level and increase child-support amounts along the same slightly declining percentage curve as the current schedules (as in the state of New Jersey), or simply encourage the courts to set a strict percentage formula based upon net income and number of children (as in states like New York).

Although need-based awards sound logical and reasonable, they are too contentious, too unpredictable, and too unreliable to support.

1. For those language purists, the term "Muggle" comes from J.K. Rowlings' Harry Potter and the Sorcerer's Stone, and actually means those people who do not possess magical powers or powers of wizardry. Used here, it is a metaphor for parents who do not earn a combined monthly net income above $7,000.

You are doing a great job as the editor. Keep it up.

Back to table of contents >>