The Friendly Parent Concept -- A Construct Fundamentally at Odds with the Parenting Act, RCW 26.09
by Margaret K. Dore, Esq.
[Published: Washington State Bar Association Family Law Section Newsletter, Spring 1999]
There is a troubling trend concerning the residential placement of children, commonly referred to as child custody disputes. This trend is the friendly parent concept.
Ostensibly, these disputes are resolved per factors in the Parenting Act, RCW 26.09. In reality, these disputes are often resolved based on the friendly parent concept, a construct fundamentally at odds with the Act. The governing statute is not followed.
The friendly parent concept is related to the theory parental alienation syndrome (PAS). 1 With the concept, primary custody is awarded to the parent most likely to foster the childs relationship with the other parent.
The parent advocating the concept seeks to show:
- that he is more likely to support the childs relationship with the other parent (more friendly); and
- that the custodial parent is keeping him from the child or alienating (less friendly).
If successful, the parent advocating the concept gets the child.
But, the Parenting Act contains a different test for custody, which it terms residential placement. Its test is a list of mandatory factors, with the factor to be given the most weight:
The relative strength, nature, and stability of the childs relationship with each parent, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child.
Rather than focus on the parents, the Act focuses on the child and maintaining the childs stability. Cf: RCW 26.09.002 ([t]he best interests of the child are served by a parenting arrangement that best maintains a childs emotional growth, health and stability, and physical care).
The test for custody per the friendly parent concept and the test per the Parenting Act are thus fundamentally different.
There is also a striking difference in proof.
Under the Parenting Act, the factors for residential placement are the most part objective based on existing facts, i.e., which parent has taken greater responsibility for the childs daily needs, each parents past parenting and the childs existing relationship with siblings. RCW 26.09.187(3)(a).
Proof of the friendly parent concept is more subjective, as it is based on a future projection, that one parent will more likely support the others relationship with the child.
Supporting evidence can thus be more loosely based. For example, a parenting evaluation reviewed by this author cites vibes reported by a third party (the third party didnt get any vibes from the mother that she would support the fathers relationship with the child).
Proof that one parent is more friendly can also be subject to manipulation. Consider this example.
The child lives with the mother in the family home. He has recently had open heart surgery and is extremely ill with a high fever.
The father, seeking to show that the mother is unfriendly, moves for immediate visitation in his apartment on an alternating, every other day basis.
The mother, of course, objects.
Through this objection, the father obtains his proof. She has demonstrated her intent to restrict his access to the child, to alienate him.
In the case on which this example is based, the father successfully painted the mother as the alienating (unfriendly) parent. He was ultimately given custody.
The friendly parent concept is also problematic in the case of domestic violence. If a parent restricts a violent parents access to protect the child, the protecting parent risks the alienating label. The child could then be placed with the violent parent.
Fault was abolished as a factor for dissolution in 1973. 2But with the friendly parent concept, fault is back. Each parent now blames the other for alienating behavior.
It should also be remembered that parents in a custody dispute are involved in litigation. They are essentially at war, alienating one another. To then base custody on which parent is more or less alienating, would seem inherently hard to pin down (speculative).
Criticism of the friendly parent concept, parental alienation and/or parental alienation syndrome is now part of a national discussion. In October 1997, a resolution was submitted to the United States Congress, stating in part:
Whereas the American Psychological Association's Presidential Task Force on Violence and the Family has found in a 1996 Presidential Report that Congress views as authoritative on questions of domestic violence, child abuse, and custody determination that--...
there is no reliable data to support the phenomenon of parental alienation syndrome, although courts and custody evaluators frequently use that term and other inappropriate terms to discount the children's fear in hostile and psychologically abusive situations; and...
For the purposes of determining child custody, it is not in the best interest of children to ...
make friendly parent provisions a factor when there is abuse by one parent against the other or a child ...
H. Con. Res. 182, 105th Congress, 1st Session.
In summary, the friendly parent concept is incompatible with the governing statute, the Parenting Act, RCW 26.09. The concept is otherwise problematic because it is vague; its determination can be speculative; and it is subject to manipulation by the sophisticated party. It can also result in placement of a child with a violent parent.
The Legislature has stated that the Parenting Act factors are to be followed. This is what should be done. Testimony and argument regarding the friendly parent concept as a factor for custody, should be disallowed as irrelevant. The report of a guardian ad litem or parenting evaluator which relies on the concept, should be similarly excluded. Disqualification of such guardian ad litem or parenting evaluator could also be appropriate. 3
The friendly parent concept as a factor for custody, is not the law of the State of Washington.
* * * *
In the 1998 Legislature, the friendly parent concept was proposed as an amendment to the Parenting Act as HB 2406. It was not enacted.
Margaret Dore is a solo practitioner in Seattle. Her practice emphasizes appeals, including those involving the residential placement of children. She is a former guardian ad litem for the King County Superior Court (guardianship and adoption panels).
1 Cf: Hedrick, Marsha and Dunne, John, "The Parental Alienation Syndrome: An Analysis of Sixteen Selected Cases. , The Journal of Divorce and Remarriage, 21.3-4 (1994), p. 21.
2 Marriage of Littlefiel d, 133 Wn.2d 39, 50, 940 P.2d 1362 (1997).
3 Cf: In Re Marriage of Waggene r, 13 Wn. App. 911, 917, 538 P.2d 845 (1975) (the duty of the court appointed evaluator-investigator is to investigate the relevant statutory factors).