Empowering Teenagers in Parenting Plan Modifications

By Marilyn S. Smith

In addition to the obligation to attend school, our legal system expects a lot from teenagers. They testify routinely in Juvenile Court and sometimes in Superior Court. They are presumed capable of committing crimes, can be tried as adults, and must be tried as adults when they are fifteen and are alleged to have committed certain crimes. They can be sent to “adult correctional facilities.” They can be ordered to court for truancy or running away, and they can be held in contempt of court. Sixteen-year-olds can petition for emancipation. Yet, in the legal arena in which they would seem to have the most at stake, the determination of parenting plans, their voices are muted.

As one step toward correcting that imbalance, I propose that the statute governing modification of parenting plans, RCW 26.09.260, be expanded to allow a parenting plan to be modified to reflect the desire of a child fifteen years or older to live with or spend more time with a parent.

Input by Children is Currently Limited

The statutes that govern decision-making about custody in Washington are circumspect about the role the children should play. The governing statute until 1987, RCW 26.09.190, listed five factors to be considered in deciding the best interests of the child. The desire of the parents was the first factor on the list. The desire of the child was the second. RCW 26.09.190 was replaced by RCW 26.09.187(3), which lists the wishes of the parent and child as sixth of seven factors that the court should consider in making residential provisions for children. Only the wishes of a child “who is sufficiently mature to express reasoned and independent preference as to his or her residential schedule” must be considered. Most teenagers would fall into that category, a determination to be made by the trial judge.

The factors given the greatest weight in establishing a parenting plan are the relative strength of the relationship between the child and the parents and which parent has taken the most responsibility for caring for the child. One reason parenting plans are so often settled in dissolution actions is that the parenting pattern has already been fairly well established. Over time, however, the relationship between the child and the parents may change. The fact that one parent had been a more active care provider may no longer be the most important factor in determining the best interest of a teenager.

Changing the Primary Caretaker Against the Wishes of the Other Parent

To change the primary caretaker of a child against the wishes of that caretaker, the other parent must show a change in the circumstances of the child or the non-moving party not contemplated at the time the current plan was entered. If that threshold is met, the moving party still must show that the change is in the best interest of the child, and that “the child’s present environment is detrimental the child’s physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to a child.” RCW 26.09.260(1) and (2). There are additional provisions applying to situations of consent and contempt.

A change in the child’s age is not sufficient grounds for modification, as that was clearly contemplated at the time the plan was entered. Changes in the child’s interests or hobbies, recognition that the child’s temperament works better with the other parent, or a change in the condition of the moving parent that makes him or her a better caretaker are not sufficient grounds. The preference of a child is not a factor at all.

The difficulty in proving that the present environment is detrimental-and the emotional and financial cost of attempting to do so-means that only the most serious cases are litigated. That was an intended result, because one of the purposes of the parenting statutes is to promote finality. I agree that it is not healthy for parents to be in court battling each other over every little thing that happens.

Although the “minor modification” provisions of the statute are less onerous, they still require a “substantial change in circumstances” of a parent or child, and they are very limiting as to how much of a modification is allowed. RCW 26.09. 260(4)(b). Absent from the modification statute is any recognition that the needs of a child of fifteen may be different from the needs of a child of five, even in families without addiction, alcoholism, or mental illness.

The Desires of Teenagers Should be Respected

Children do change as they age, and the parent who was most appropriate for them at the age of five may not be the most appropriate for them at the age of fifteen. If the “best interest of the child” is really the governing principle, then the needs and desires of an older child must be heard.

In my experience, it is rare for there to be major disputes over parenting plans for teenagers at the time of divorce. As I tell my clients, and as anyone dealing with teenagers in the context of the dependency system knows, after a certain age teenagers tend to do what they want anyway. A study of decision-making in Virginia custody decisions found what would appear to be true in Washington, at least anecdotally, that the preference of adolescents is important to the decision maker. Scott, Reppucci, and Aber, Children’s Preference in Adjudicated Custody Decisions, 22 Ga.L.Rev. 1035 (1988).

A child who is very unhappy may run away, consistently spend time away from home, skip school, stay holed up in his or her room, or engage in other unpleasant behavior that either is harmful to the child or provocative to the parent. No child should have to resort to those behaviors to ameliorate his or her situation. A well-behaved child should not have to suffer in silence.

Not all teenagers make good decisions, and I am not advocating that the wishes of a teenager should always control. His or her wishes should be taken seriously, and in appropriate circumstances they should be grounds for changing the parenting plan.

Now, when a parent or a teenager tells me the teenager wants a change, I have to advise the parent that without the agreement of the other parent they are in for a long and bruising modification proceeding, with the outcome in doubt absent a major incident. The alternative is to have the child file a Petition for Alternative Residential Placement under RCW 13..32A.150 et seq., which requires the involvement of DSHS, a presumption that the parties will work toward reconciliation, and short-term dispositions. It is a procedure designed to help a parent and child who reside together stay together and is not meant to substitute for a parenting plan.

Some Jurisdictions Recognize Teenagers’ Choice

Georgia and Mississippi allow children to choose the parent with whom he or she wishes to live when the child reaches the ages of fourteen and twelve, respectively. Official Code of Georgia 19-9-3 (4); Mississippi Code Ann. ¤ 93-11-65. This kind of rule may encourage the settlement of parenting plans out of court. It may also serve as a restraint on judges imposing their own views on families.

Even the Hague Convention provides that children taken unlawfully from another country does not have to be returned if the child objects to being returned “and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. paragraph 89, Article 13; 42 U.S.C. ¤ 11601 et seq. (domestic implementing legislation).

A Change in Washington Law Should be Considered

Although I believe Washington law should pay more attention to the desires of children, and teenagers in particular, I am not advocating adoption of a statute such as Virginia’s. I do believe that there should be a statute that allows a parenting plan to be modified because it is the desire of the teenager, with the concurrence of the parent who would be asked to take on the added responsibility, and if it is in the child’s best interest. I suggest that the age when this take effect be fifteen, and that in King County there be a shortened case schedule and the opportunity for temporary orders. This last would be particularly important when a change in residence would involve a change in schools.

I am sure there will be concern that parents will pressure their teenagers to express a desire to change. If it were a requirement that a child who expressed a desire to change would have to testify -this can be done in chambers-the judge would have the opportunity to evaluate the situation. The child’s expressed desire would not be the only criterion. There would also have to be a showing that the change would be in the child’s best interest. The judge would have to find an actual benefit to the child such as a better education, less stress, or getting away from a disliked stepparent.

I do not think this change would flood the courts with modification proceedings. For one thing, there are not many parents who want to take on the full-time care of teenager without some sense that it will work out with the teenager. For another, I think most parents would work out the situation without court intervention except to formalize the plans and the child support. In cases where the parent is bringing the action primarily to avoid child support, where the parent is not a reliable caretaker, or where the child is unreasonably looking for an easier disciplinarian the court can deny the petition.

Parenting plans are not just about parents. Washington should recognize the importance of the third party in the plan, the child, and give weight to that child’s preferences. It should recognize that a plan devised for a young child may simply no longer be best for a teenager, and it should provide a means for parents and teenagers to modify a plan so that it is truly in the best interest of the child.