In this series, we have been examining Washington cases which help us to understand what exactly the “best interests of the child” standard means, and how it works when applied to a specific family. Our last article examined the fifth factor under RCW 26.09.187(3)(a) – “the child’s relationship with siblings and other adults, as well as the child’s involvement with his or her physical surroundings, school, or other significant activities.”
In this article, we’ll take a look at sixth and seventh RCW 26.09.187(3)(a) factors. The sixth factor directs the court to examine “the wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule.” The seventh factor requires the court to consider “each parent’s employment schedule” when fashioning a residential schedule. These are the last two factors for the court’s consideration under RCW 26.09.187(3)(a).
The Wishes of the Parents & The Sufficiently Mature Child
It is true that courts do sometimes consider a child’s expressed desires regarding parenting issues. Indeed, we most recently saw a court consider a child’s wishes for his residential schedule in our discussion of Custody of Shields. In that case the court considered testimony (given by a court-appointed guardian ad litem, the boy himself, and others) about the child’s desire to live with his step-mother instead of with his biological mother.
In practice, however, cases where the judge’s determination about parenting has much, if any, grounding in the individual child’s expressed desires for a parenting plan are very rare. And the rule makes it clear that the desires of children will be considered only when the child is “sufficiently mature to express reasoned and independent preferences.”
There are several reasons why courts do not place much emphasis on child preference, and why, when they do, they do so only under very limited circumstances.
First, there is a very strong desire in the courts and in family law practice to keep children out of the litigation as much as possible. It is widely considered to be very damaging to place children into the middle of litigation between their parents (or their parents and other family members), especially given the amount of distress that is already inherent in a parental dispute.
In other words, putting a child in a position where they are likely to feel forced to take the side of one parent against the other is highly disfavored in the courts. Indeed, parents who do so put themselves at risk of losing their case for designation as the primary residential parent.
Thus, the court rarely elicits direct testimony from a child in a custody dispute. What is more common, as we have seen in some of these cases, is for the court to appoint a guardian ad litem (“GAL”). The GAL’s job is to serve as a neutral third party (i.e. someone who has no stake in the outcome of the case) and advocate for the child’s best interests. In fact, most orders appointing a GAL specifically state that, among other important duties:
The guardian ad litem shall report the child’s expressed preferences regarding the parenting plan to the court, together with the facts relative to whether any preferences are being expressed voluntarily and the degree of the child’s understanding.
This gives the court the opportunity hear the child’s expressed wishes (if the child makes any to the GAL), while keeping the child out of the courtroom and largely uninvolved in litigation. GALs receive special training in dealing with the children of fueding parents and are expected to tell the court whether or not they believe that child’s expressed preference is made “voluntarily.” And, most GALs will meet with children in a comfortable and familiar environment – such as the child’s home. This keeps the child literally out of the courtroom, and hopefully, largely out of the litigation between his or her parents.
Secondly, courts consider statements made (or alleged to have been made) by children regarding their preference of one parent over the other to be of suspect reliability, especially when a child is very young. A child may have many motivations for expressing a preference for a certain parent over the other. A child may tell one parent “I want to live you” because he wants to please or comfort that parent. A child may say, “I want to live with you both equally” in an attempt to make both parents happy.
In some rarer scenarios, a child may have been coached to say she prefers one parent either by that parent or by another family member. Or, the child could simply be stating a true preference that is free of influence by anyone.
The point is, it’s difficult to determine why a child has made an expression of preference, and because of that courts are very weary of relying on those statement when making decisions about parenting.
Third, a child does not necessarily know or understand which household serves his or her own best interests and may desire to live in a household that is not in his or her best interests. For example, a child may say “I want to live with my mom” because his mom lets him eat pizza for breakfast and watch TV from the time he gets home from school until bedtime, while dad serves oatmeal and fruit for breakfast and requires that homework and some kind of physical activity be completed before the tv is turned on.
Or, a teenager may want to live with her dad because the father doesn’t enforce a curfew or have rules about drinking and smoking, while the mother does.
In addition, a child often does not (and should not) know exactly what is going on in each parents’ household. A child may be unaware that one parent has a drug problem or a mental illness, for example. Thus, they are not aware that living with that parent puts them at risk of physical and/or emotional harm.
Given all of the hazards of relying too heavily on a child’s expressions of preference for one parent over the other – emotional distress as a result of direct involvement in litigation; questionable reliability; and lack of awareness of the suitability of a given household – courts do not place this sixth RCW 26.09.187(3)(a) factor very high on the list of considerations. That is not to say, however, that the courts do not care at all what children want.
A child’s expressed preference for one parent may very well be indicative of a strong bond to that parent – and courts clearly care about a child’s emotional connection to his parents. Remember, after all, that the “relative strength, nature and stability of the child’s relationship with each parent” is the most important factor under RCW 26.09.187(3)(a). So, while the court does not ignore a child’s expressed wishes, the court evaluates the child’s expressions by looking at the child’s maturity and ability to make reasoned, independent statements of preference. This means that the court will care more about why a child wants to live with a particular parent, than who the child wants to live with. If a 13-year old tells a GAL, for example, that he prefers his mom’s house because dinner is always on the table at six, she regularly helps him with his homework, and they often go for bike rides after school together, this will be considered far more seriously than if the same boy says he wants to live with his mom because “she says dad abandoned us.” In other words, the reasoning the court will look to in a child echoes the other factors we have already seen here.
Each Parent’s Employment Schedule
This is the last and, admittedly, most mundane of the factors under RCW 26.09.187(3)(a). This factor requires the court to take into the practicality of placing the children in a particular parent’s house as it relates to that parent’s work schedule, and to formulate a plan that reasonably accommodates that schedule. After all, it would not make much sense to place a school-aged child primarily with a parent who works evenings and nights, but is home all day while the child is at school. Nor would it make much sense to give the non-residential parent weekend visits if that parent works long hours on weekends. A parenting plan needs to be grounded in the reality of each parent’s ability to spend time with the child – so the court needs to understand and take into account the times at which the parent is working outside the home and unable to care for the child.
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This is our final article on the individual factors under RCW 26.09.187(3)(a). We hope that it has helped you understand not only what the “best interests of the child” standard really means in practice, but also that it helped you understand what is important to the courts in making decisions about parenting. We hope this article has shown you that the court wants to see strong parental involvement in children’s lives, stability and consistency in the daily life of a child, attention to a child’s individual needs, and emotional, physical, intellectual and financial support of a child from both parents.
Next week, we’ll take a look at how all of these factors come into play when a parent seeks a change in custody, a process officially called “Major Modification of a Permanent Parenting Plan.”
