October 2001

Letters

Bar News has received many letters, both pro and con, in response to the article "Washington Rejects 'Friendly Parent' Presumption in Child Custody Cases" by Margaret K. Dore and J. Mark Weiss (August Bar News, p. 32). This month, we publish two representative letters in opposition. Next month, we will carry representative letters supporting the viewpoints of the authors, as well as a short response from Ms. Dore. — Editor

Editor:
I was disappointed by the article "Washington Rejects 'Friendly Parent' Presumption in Child Custody Cases." It was obviously intended to deter passage of the friendly parent bill this year. The friendly parent bill does not create a presumption, and isn't comparable to laws in other states. It simply adds one more to the list of statutory factors used in deciding parenting cases. The repeated use of the word "custody" throughout the article, a term which was thankfully banished by the Parenting Act of 1987, is a not-so-subtle attempt to turn attention away from the child-centered Parenting Act and back toward the "child as property" notions that preceded it.

The claim that "in Washington … there is no automatic right of contact between children and noncustodial parents" is outrageous. It ignores U.S. Supreme Court rulings that parents have a constitutional right of association with their children and the principles enunciated in RCW 26.09.002, the policy statement of the Parenting Act. The authors base their claim on dicta from the Littlefield decision. The Littlefield decision was explicitly rejected in the Relocation Act of 2000, with broad support from the family law bar, primarily because it attempted to reintroduce the "child as property" notion. Citing Littlefield as authority for anything is ill-advised.

Claiming three Washington cases have "clearly rejected the friendly parent concept" is a stretch. Only the Lawrence decision mentions the term "friendly parent," and it did so under very odd circumstances. The appellant argued, even though there wasn't a word about the friendly parent concept in the trial court ruling, that the trial court might have used the friendly parent concept, and the Court of Appeals remanded to determine if that was true, because it would be impermissible. Having the Court of Appeals rule on "might have beens" in family law cases is a prescription for disaster. The Lawrence opinion itself begs for legislative correction (by holding that the failure to pass the bill is proof of the Legislature's repudiation of the friendly parent concept) and exemplifies why passage of the friendly parent bill is necessary. Banning all consideration of friendly parent issues from the courtroom places unacceptable limits on the scope of discovery, parenting evaluations, and the best interests of the child. We need to shine a light on parenting cases, not throw a bushel over them.

The article claims "under the friendly parent concept, custody is awarded to the parent most likely to foster the child's relationship with the other parent." Wrong. It doesn't create a presumption, just another factor. Another straw-man argument is that "friendly parents are those who do not make allegations about the other parent, do not withhold access to the child, and are cooperative." Wrong again. 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. Whether parents are unfriendly depends on whether their actions are well-founded or at least in good faith. Intention is a key element of many legal determinations. The fact that it can be a tough call does not eliminate the need to make the call.

The argument that "the friendly parent concept rewards manipulative litigation tactics" is wrong. Claims made by an opponent aren't always manipulative litigation tactics — sometimes the claims are true. This argument also assumes that trial judges can only be manipulated by those who claim alienation, not by those who may be alienating. I am unwilling to assume judges are usually wrong and usually err in the same direction.

I won't attempt to refute bizarre, anonymous war stories such as the one recited in the article; nor will I assume no reasonable person could come to the same conclusion as the trial judge did in that story. On the other hand, I have no problem with the Nunn and Schroeder cases. The Nunn case correctly ruled the mother's effort to defend herself was not, by itself, sufficient basis to find her unfit. The Schroeder case made a similar point about contempt. There is no reason those cases would not remain good law with the friendly parent factor in place.

The claim that "in the context of domestic violence, the 'Catch 22' of the friendly parent concept can be deadly" is an unworthy attempt to hide behind a worthy cause. No effort is made to back up "deadly" or "dangerous" other than hypothetical surmises. The need to protect victims of domestic violence should not be trivialized by implying that allegations of unfriendly parenting are just another form of domestic violence. Even victims of domestic violence cannot be allowed to lie or act against their child's best interest with impunity. Determining the accuracy and significance of such claims is why we have courts.

The article attempts to create its own presumption that any potential misapplication of a rule requires us to abandon the rule. Nice try, but wrong. Mistakes in applying a rule (and there has been no showing of mistakes relating to the friendly parent factor) cannot invalidate a rule. We wouldn't have any rules at all if this logic were followed because our justice system hasn't attained infallibility. Nonetheless, it remains the best known system for determining the facts.

The bottom line: prohibiting the court from considering relevant evidence is not in a child's best interest. Is the friendly parent factor relevant? The article claims "the problem is that custody becomes a reward or punishment for behavior uncorrelated to a child's best interests." I disagree. Unjustified interference with a parent/child relationship is not "uncorrelated to a child's best interests." The Legislature has been strongly supportive of enacting the friendly parent factor, but it has been bottled up in committee by exactly the same misleading and emotional arguments contained in the article. I believe common sense and faith in our justice system will prevail in the next legislative session.

Editor:
If you can't win an argument fair and square, distort the facts and omit information — like Margaret Dore did in her article titled "Washington Rejects 'Friendly Parent' Presumption in Child Custody Cases." This article refers to legislation that would allow courts to take into account the willingness of a parent to allow access of a child to the other parent when determining residential schedules. I am the author of this legislation.

First of all, Washington did not reject this concept. In the state Legislature, SB5511 (friendly parent factor) passed the Senate 47-2 this year. The House passed the same bill (88-7) in 1999. I believe this hardly constitutes a rejection. Although the bill has not passed simultaneously from both houses, rarely do any new bills move at light speed through this process — especially bills dealing with family law. The Washington State Bar Association's Family Law Section has also endorsed this bill.

Second, this legislation did not repeal "the best interest of the child" standard. In fact, upon reading the text, you'll discover that it reaffirms it! Parental cooperation is merely added to the long list of factors used by the court when determining the residential placement of children. And like these other factors, the best interest of the child remains the overriding standard.

Third, this legislation does not turn a blind eye to domestic violence. As is current law, the courts cannot even consider the factors used in placement if domestic violence exists.

A couple of years ago, a study commissioned by the Gender and Justice Commission concluded that serious deficiencies existed in family law. From too much conflict to too little legal assistance, the report identified over 10 areas of concern. Yet not one legislator except myself has lifted a finger to help solve these problems. This road has not been easy, as evidenced by the article, which disseminates false and misleading information.

If you are interested in examining changes in family law, or would like the actual text of the bill being referred to in the article (SB5511), please e-mail my legislative office at kastama_ja@leg.wa.gov. My office will reply promptly.

Editor:
I have read Ms. Dore's and Mr. Weiss's article with awe. Clearly it would take volumes to refute the misinformation contained in the article. This is the trademark of a seasoned offensive litigator! Suffice it to say, however, that for every woman and child where this "rebuttable standard" could be shown to cause harm, I can show you 50 where it will do nothing but better serve the best interests of the children by reducing the animosity and acrimony between the parents. Should the presumptions of the law serve the two percent or the 98 percent? Are we going to trample the rights and well- being of the majority of our children for a few?

What Dore and Weiss fail to consider is the overriding objective of the Parenting Act (vs. case law): to maintain the relationship of both parents with the children (absent a 26.09.191 finding) and to "reduce the acrimony." (See dissent in Littlefield. Also note majority opinion in Littlefield was specifically overturned by the Legislature in 1999 and should not be used as authority.)

The real Catch 22 is the father that 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 is found to be intransigent, and loses. If he doesn't fight to see his child for more than this, he has abandoned his children, and loses. (I know 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," and he would see to there being "near equal." And no, there wasn't even a hint of a 191. Further, the position was very similar to the position of the GAL who was "handpicked by the court.") (Note: Schnieder is regularly disregarded by the superior courts and by the appellate courts in unpublished opinions in this regard.)

If there is a 191 reason for restricting contact, then it should be brought and applied. Further, the burden of proof in this regard should rest with the accuser — not the accused! We have billions of dollars allocated for women and children in need in this area (see WSBA Access to Justice Washington State Domestic Violence Civil Justice Project Report, December 1999). There are virtually no funds available to help fathers prove their innocence!

Until there is parity in the courts or the courts begin to see the fight of fathers to see their children as paternal concern and not as "abusive use of conflict," statutes such as the "friendly parent presumption" are highly necessary. Using "the friendly parent" as one weighted factor in making a determination of custody can do nothing but reduce acrimony, reduce family and domestic violence, preserve familial finances, and better serve the best interests of our children of divorce.

Editor:
Rob Born of Clinton has proposed a fascinating procedure so that bar examinees will no longer have to suffer "callous indifference … loss of revenue and anxiety" (August Bar News, p. 12). According to Mr. Born, by statistically weighing the answers, we could eliminate 45 days from the "two-and-a-half-month" waiting period. Simply thinking about the boost to the economy the extra 45 days of income from newly minted lawyers will bring to the state makes me tingle. (There might be some loss in the economy from Bar applicants foregoing treatment for anxiety, but I assume Mr. Born has factored that into his plan.)

While I care deeply about the care and well-being of lawyer wannabes, there is a greater lesson in this for me. This is such a good idea that I intend to use the "Born Method" throughout my practice. From now on I will only read the first 23 percent of a reported case. If that portion favors my position, I need read no further. Imagine the time savings (I will not, of course, bill for reading the whole case, but I will be able to review more cases, thus increasing my income).

When in court I will provide the bench the first few pages of my pleadings and wait to see if more are needed. Judicial economy being what it is, I cannot imagine judges not being enthusiastic supporters of this. The Supreme Court appears to have already accepted the "Born Method" for presidential elections, so there should not be any pesky questions from Washington courts.

When preparing legal descriptions, close will count (recording clerks tells me most attorneys have been practicing the "Born Method" for years — we just did not have a formal name for it before).

I am sure that with lawyers being what we are, my colleagues will come up with numerous uses for the "Born Method." I await suggestions.

Editor:
I just have to put in my two cents' worth regarding John Panesko's critique (August Bar News, p.12) of Editor Panitch's column excoriating the current administration's decision to dispense with the ABA as a screening aid for federal judicial positions. I agree with Panesko in his criticism of the failure to refer to the president of the United States as such. However, it is the custom and usage of all print news media to refer to any individual only by their surname, once the full name has been used. It was actually improper for the editor to refer to Martha Barnett as "Ms. Barnett," because the custom and usage also dictates that titles such as "Mr.," "Mrs." or "Ms." be used only when referring to a deceased person. Barnett would not have appreciated that. It very definitely is not contempt for a print news medium to refer to living persons by their surname alone, Panesko. (If I had used "Mr. Panesko" in that last sentence, that could have been taken as condescending or as mocking with faint praise.)

Editor:
Regardless of whether the ABA is liberal, or whether President Bush was right or wrong in terminating the ABA's involvement in judicial selection, it's difficult to support Mark Panitch's ultimate conclusion (May Bar News, p.15). He claims that lack of ABA judicial screening will result in political opponents being "free to challenge a nominee's integrity, judicial temperament and professional competence" and require that nominees "defend every minor ethical lapse, injudicious outburst and possible professional error." Since this is exactly the situation that we have had for at least the past 20 years with ABA screening in place, it would be easier to argue that the ABA's involvement somehow resulted in partisan political attacks by what would otherwise be extremely civil and polite senators. In reality, however, I seriously doubt the involvement of the ABA had any effect on the process in the past, and I doubt much will change in its absence. Politicians will be politicians, and the process will remain very political for key appointments.

For those interested in whether the ABA might be considered a "left-leaning" organization, I'd suggest simply reviewing the ABA's Web site (http://www. abanet.org). There you can review the ABA's "2001 Priorities" on issues such as tort reform, immigration, and even gun control, to reach your own decision. When I performed this task, I discovered that I agreed with most ABA positions and disagreed with a few, but regardless, I found most of the ABA's "2001 Priorities" to be what I would consider clearly liberal positions. After reviewing the ABA's positions, I don't question why President Bush made the decision he made, for he is a conservative politician. I only question how Mark Panitch could believe that the ABA is not a "left-leaning" lawyers' group.

Editor:
I am very much opposed to the proposal to create two seats on the Board of Governors for "underrepresented" groups of lawyers. I am confident that, if enacted, it will create far more problems than any it may solve.

What does "underrepresented" mean? Does it refer to any group which claims to not presently have proper representation on the board? If so, I thought the governors were supposed to represent all the lawyers of their district. Does it mean underrepresented within the Bar? If so, who will determine which of the many groups who are allegedly "underrepresented" within the Bar deserve a special slot of their own on the Board of Governors?

In short, I feel that this is a road down which the Bar will regret having gone, wholly aside from the cogent legal challenges raised by previous writers.

Editor:
I usually enjoy reading Mark Panitch's columns. It is clear that he puts a great deal of time and thought into most of them, and they make for interesting reading. His column in the August Bar News (p.17) is an exception, however.

In his August column, Mr. Panitch discusses the ongoing process of filling the two "underrepresented" or "diversity" seats. He defends the positions, bemoans the number of white faces he sees at bar meetings, chides minorities for not making enough applications to fill the positions, and concludes by referring to people opposed to the creation of these positions as "opponents of diversity." The latter assertion is what prompted me to respond.

I have previously written to express my opinion that the creation of the two positions is unnecessary and unreasonable, and that the action is not supported by any demonstrable need. I even concluded with some tongue-in-cheek request for recognition of my own particular underrepresented group. Then I waited for the abuse to come flying at me. To my surprise, the few comments I heard were generally in agreement.

That, combined with Mr. Panitch's acknowledgment that there have been few applications for the "diversity" seats, confirms my suspicions. The Board of Governors, while very likely well-meaning in their intent, are solving a problem that does not exist. In doing so, they are singling out groups of people for special treatment. It is this separate disparate treatment that I find objectionable. I am not an opponent of diversity; I am an opponent of those who would treat people differently based upon their race, age, ethnicity, religion, sex, sexual preference, etc.

This is an old debate in a relatively new forum. Affirmative action, which has been reduced or eliminated in many jurisdictions, was created to address past discriminations. While it had laudable goals, by its very definition, it sought to remedy sins of the past by taxing the participants of the present without regard to whether those present participants had created any of those past sins. It was, and is, a form of discrimination itself. The bar should be an egalitarian entity that treats people evenly, without regard for race, religion, etc. If it is engaged in a systemic practice of deselecting or excluding members of our profession, then that part of the system needs to be fixed.

I am not clear as to why Mr. Panitch finds the number of white faces on the board "disconcerting." I also fail to see how the diversity seats will result in, as Mr. Panitch puts it, "younger, darker and less well-established lawyers." Does this mean a 45-year-old African-American partner at Perkins Coie or one of the larger Seattle firms is automatically excluded? If so, I must have missed that part of the rules creating the seats. And what does this say about other "under-represented" groups? Is the board saying, "well, we have wrongfully been excluding you all these years, and to make it up to you, we are going to let representatives from two of the possible dozens of groups join our fraternity"? What's next? Is the board going to bus white lawyers to practice in geographic areas where minorities appear in larger numbers than in the general population?

Diversity makes the world a much more interesting place and makes life a far more interesting journey. Diversity is a good thing. Disparate treatment is not. The Board of Governors has sought to treat groups of people differently based upon an arbitrary categorization and, arguably, to an arbitrary degree by selecting which two groups get to join the party. That discriminates against the rest of the members, however honorable the goals.

Back to table of contents >>