Dear Editor:
This is in response to the article in the January Bar Bulletin entitled “Washington Resolution to Equal Custody” by David Starks.
We are very concerned that the implication is that it is normally the best, “modern day solution” that children have equal time with divorced or separated parents under a parenting plan. The article appears to ignore that the goal of a parenting plan is to set a schedule that is “in the best interests of the children.” This necessarily takes into account many factors under RCW 26.09.187(3)(a), including:
- The relative strength, nature, and stability of the child’s relationship with each parent;
- The agreements of the parties, provided they were entered into knowingly and voluntarily;
- Each parent’s past and potential for future performance of parenting functions as defined in RCW 26.09.004(3), including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
- The emotional needs and development level of the child;
- The wishes of the parents and the wishes of the child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and
- Each parent’s employment schedule, and [the court] shall make accommodations consistent with those schedules.
It’s possible, of course, that an analysis of these factors will result in an equal time schedule for some families. We agree with Mr. Starks that the Legislature has made some changes and that those changes may result in more parenting plans with closer to equal schedules in appropriate circumstances.
This isn’t the case, however, for all families. Mr. Starks appears to be following the line of thinking that parenting plans are about being “fair” to each parent, giving each parent equal time so that the parent believes his or her own needs for the children are taken into account. This line of reasoning ignores the reality of children’s needs and the special circumstances of individual families. The children, for example, may be better off having one primary home or being primarily with the parent to whom they feel closest and who best meets their emotional needs. Yet, Mr. Starks claims that the reasons why courts “refuse” equal “custody” are “insidious.”
Mr. Starks claims that “which parent was previously responsible for caring for the children during the last 12 months of marriage is no longer a factor.” Although, as the article notes, those words are no longer in the statute, the court must consider — as the factor given the greatest weight — the relative strength, nature and stability of the child’s relationship with each parent. This factor cannot possibly ignore previous parenting responsibilities for the prior 12 months.
Mr. Starks also admits the statute still defines a parenting plan that is in “the best interests of the child” as one presumptively maintaining the “existing pattern of interaction between a parent and child,” although he disagrees with this standard and believes it should be changed. The article concludes with comments that there should be legislative and judicial efforts to lead to more “shared custody,” which he appears to define as a parenting plan that gives equal residential time to each parent.
We are opposed to this point of view if it means not truly focusing on the best interests of the children (as opposed to those of the parents), as defined by all of the relevant factors.
—Mary Wechsler
Washington Chapter American Academy of Matrimonial Lawyers
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