Testimony Against SB 5511
Washington State "Friendly Parent" Bill
by Trish Wilson, © 2002-2003
All rights reserved by author
[Below is the written testimony I had e-mailed to Washington state
senators in 2002. I testified against SB 5511, a "friendly parent"
bill. This bill eventually failed.]
My name is Trish Wilson. I am editor at large and a columnist for the
Internet magazine "Feminista." I am member of the Association for Research
on Mothering (Canada) and the National Network on Family Law Policy (United
States). I am not only disturbed to learn that the Friendly Parent Provision
(SB 5511) has been reintroduced to the Washington state legislature, I'm
amazed at the way it has been slid into the legislature so quickly that
those who are against it have little to no time to prepare a countering
argument.
I would like to encourage you to vote against this bill. It will encourage
litigation and exacerbate conflict, which is not what the Washington courts
want. I'd like to present my arguments against "friendly parent" provisions,
which are below. I thank you for taking the time to read them. I know you
are busy.
There is currently a drive to force certain parents, most often mothers, to
"behave properly." Dubious syndromes such as Dr. Richard Gardner's Parental
Alienation Syndrome (PAS) have been used against "uncooperative" and
'alienating" mothers. University of Washington Professor John Conte has
described Gardner's Sex Abuse Legitimacy Scale as "[p]robably the most
unscientific piece of garbage I've seen in the field in all my time. To base
social policy on something as flimsy as this is exceedingly dangerous." Dr.
Douglas Darnall has tweaked PAS in his own version of "alienation," which he
claims is more gender neutral, yet it overwhelmingly continues to be used
against mothers. Regardless of the fact that neither Gardner's version nor
Darnall's version of PAS meet Frye standards and that neither is recognized
as a valid medical syndrome by the American Medical Association and the
American Psychological Association, they continue to be introduced in court.
In response to growing exposure of the speciousness of PAS, other versions
of "alienation" that overwhelmingly penalize mothers have been surfacing --
including Friendly Parent Provisions.
"Friendly parent" provisions grew out of the father's rights movement. They
do not encourage parents to cooperate. In fact, they encourage conflict,
especially in cases of domestic violence. Joan Zorza has noted that "[t]he
friendly parent concept is most often employed against the custodial or
primary parent, typically the mother. It is less often employed against
fathers." [Joan Zorza, "Friendly Parent Provisions in Custody
Determinations," Clearinghouse Review, Vol. 26, No. 8, December 1992, p.
924] The primary parent is the parent who maintains primary responsibility
for the children and has always held the primary decision-making authority.
Most often, that parent is the mother. This arrangement had been established
by both parents of their own free will during the course of the marriage.
Although the primary parent typically takes the lead, both parents freely
discuss childrearing issues with each other. When these people divorce, the
primary parent typically becomes the custodial parent. That parent is most
frequently the mother.
What had been a perfectly satisfactory arrangement pre-divorce suddenly
becomes unsatisfactory with the noncustodial parent post-divorce. Friendly
parent provisions encourage the noncustodial parent to disrupt the
established parenting authority and decision-making ability of the custodial
parent -- the same authority and decision-making that frequently were not
big issues while the couple was married. One would think that the intention
of a "friendly parent" provision would be to encourage certain parents to
use that very provision in order to continue adversarial litigation in
court, but that isn't the case at all. Although the friendly parent concept
ostensibly awards custody to the parent the court deems is most likely to
foster the child's relationship with the other parent, it actually
encourages manipulative litigation tactics by giving angry, controlling, and
even abusive parents the ability to play out their grudges with the blessing
of the court, all the while claiming that the other parent is being
"uncooperative," "unfriendly," "argumentative," "alienating," and is
"poisoning the children's minds." These maladaptive parents are rewarded for
their manipulative litigation with additional visitation, joint custody,
sole custody, or sanctions against the other parent when the court rules
that the other parent has been "unfriendly."
The Washington State of Appeals had rightly rejected friendly parent
provisions in Lawrence v. Lawrence No. 47163-5-I (Feb. 20). A number of
states have codified these provisions, but Washington state was not one of
them. Attorney Margaret Dore represented the mother in the Lawrence case.
She said in Wendy Davis's article "Family Values in Flux" [ABA Journal,
October, 2001] that "[o]pponents of the construct also fear it might deter
parents from fully litigating the merits of the underlying custody case. A
parent who wants to be seen as the friendlier, less hostile party will be
reluctant to raise legitimate concerns about the other."
"[T]he concept has some family lawyers downright hostile. They argue that
courts too easily guided by the principle may overlook more egregious
problems, like domestic violence," wrote Wendy Davis in "Family Values in
Flux" for the ABA Journal in October, 2001. "They also say judges may
determine friendliness based on behavior that, paradoxically, may threaten a
spouse or child." In cases of domestic violence and child abuse, parents
deemed "unfriendly" may have valid reasons for hesitating over visitation
out of concern for their own and their children's safety. Rather than
conduct a proper investigation of the concerns, "friendly parent" provisions
ensure that the reluctant parent will be labeled as "unfriendly." Custody
may be switched to the other parent, or that other parent may be awarded
additional visitation or even joint physical and/or legal custody -- all
without a proper investigation of the reluctant parent's concerns.
Margaret Dore noted that in Marriage of Littlefield that the Washington
State Supreme court did not presume that "frequent and continuing contact
with both parents is in the best interests of the child." [Washington
Rejects "Friendly Parent" Presumption in Child Custody Cases," by Margaret
K. Dore and J. Mark Weiss. Washington State Bar News (WSBN), August, 2001]
Existing research supports that contention. It is incorrect to conclude that
"frequent and continuing access by both parents lies at the core of the
child's best interest. What counts is not the quantity of time, but the
extent to which the access parent and child have a relationship in which the
child feels valued. The regularity and predictability of visits is more
important than frequency of visits." [M.B. Isaacs, B. Montalvo and D.
Abelsohn, The Difficult Divorce: Therapy for Children and Families, New
York: Basic Books, 1986.] Considering that Washington state is at issue
here, it should be noted that the Washington State Parenting Act Study
[Report to the Washington State Gender and Justice Commission and Domestic
Relations Commission, Diane N. Lye, Ph.D., June, 1999] had concluded that
"[t]he weight of evidence does not support the view that higher levels of
child-nonresidential father contact are automatically or always beneficial
to children." This same report also noted that "[c]hildren of divorce do
better when the well-being of the primary residential parent is high.
Primary residential parents who are experiencing psychological, emotional,
social, economic, or health difficulties may transfer these difficulties to
their children and are often less able to parent effectively. Primary
parents tend to function best when they have strong support networks, such
as kin, friends, and support groups, and when they have residential and
financial security." Washington state would be unwise to establish a
'friendly parent" provision when its own Parenting Act Study concluded that
the primary caregiver's well-being directly influences well-child outcomes.
The Washington legislature had failed in 1998 and 1999 in its attempt to
override Marriage of Littlefield with a "friendly parent" provision. Today
in 2002 we see the latest attempt to override both Littlefield and Lawrence
with yet another introduction of the "friendly parent" provision. In a
particularly unpleasant story described in the WSBN article, Dore describes
a mother who objected to the father's move for "immediate visitation outside
the home on an alternating, every-other-day basis" shortly following their
daughter's open-heart surgery. She objected out of concern for the child's
health. The father had declared her refusal as proof that she had restricted
his access to his child, and was therefore "unfriendly." Dore continues: "In
this same case, the father obtained a restraining order prohibiting the
mother from entering his apartment < and then invited her in. The mother
accepted because she hoped to reconcile. This occurred on several occasions.
Subsequently the police were called and the father denied his invitations.
Once again, the father obtained proof that the mother was "unfriendly." She
had violated a court order; she was uncooperative and alienating. The father
repeatedly utilized such tactics to paint her as the unfriendly parent." Due
to the use of this tactic, "[t]he father was awarded custody, the family
home and child support. A few months after trial, the father returned the
child to the mother?s care, but he retained the family home." Two years
later, the mother retains primary care of the child, but she continues to
pay child support to the father out of fear of how the court will treat her.
She says she has no faith in the system. This sort of manipulation and its
outcome is the direct result of the "friendly parent" concept.
It's bad enough when the "friendly parent" concept is employed by
manipulative noncustodial parents such as the one described above. The
situation becomes much worse when a mother tries to protect herself and her
children from domestic violence and child abuse. An editorial for the
organization "In The Eyes of a Child" entitled "The New Abuse: The War
Against Domestic Violence, Many Courts Are on the Wrong Side" considered
that even the possibility that "friendly parent" provisions were intended to
"...guarantee that children went to the most flexible parent--the result has
been to penalize victims of domestic violence. When mothers express concern
about the abuse, many courts presume they are coaching their children to say
their fathers harmed them..." Such a mother may choose to keep the abuse to
herself if a friendly parent provision is in effect in her region. She will
not report abuse. She will not bring abuse up in court. She will not deny
the abuser access to her child, even though access threatens her safety and
the safety of her child. She knows that she risks losing custody of her
child to the very parent she is trying to protect that child from if she
speaks out. "Joint custody, and/or 'friendly parent' presumptions are not
just untenable, they effectively undercut the safety and autonomy battered
women seek, both for themselves and their children, when they leave an
abusive relationship," wrote Tania Pocock and Fiona Cram in their article
"Children of Battered Women." ["Children of Battered Women," by Tania Pocock
and Fiona Cram. Waikato Law Review Taumauri, New Zealand. Special Issue on
Domestic Violence, Vol. 4, Issue 1, 1996.] Therefore, the "friendly parent"
provision prohibits these mothers from being able to protect themselves and
their children. It places the desires of a manipulative and abusive adult
over the welfare of children.
Mardi J. Montello and Kathleen C. Dubois noted difficulties mothers
experiencing abuse and other forms of controlling behavior are treated by
the courts.""And even if you are sent to court because you are considered
exempt because of abuse, judges are able and do send you back for mediation
and parenting ed., So even with the exemptions for abuse, judges themselves
have bought the pr about the benefits of alternative dispute resolution and
are reluctant to make decisions. The attitudes can not be contained and
effect the court process as well. Also when you do attend information
sessions, or try and unsuccessfully to mediate, the mediator or person doing
the assessment makes note for the judge about how likely or unlikely the
issues are to be resolved, again we disagree with judges having access to
this, and can work as a friendly parent rule against women who refuse
mediation because of abuse. I have seen this happen. I think the biggest
invisible problem with all this is how it effects the attitudes of the legal
systems prof. Litigation has gotten a dirty name as being adversarial, it is
already held against those who go to court, and certainly battered women
need to be able to go to court. Because of the too rigorous 'friendly
parent' rule, battered women already know there are serious repercussions
for denying access to their ex-spouses, even if there are compelling reasons
to do so (abuse,drunkenness). As a corollary to the friendly parent rule, a
parent should be able to protect the child from contact with a parent if
that contact is dangerous. [""The Impact of Domestic Violence Allegations in
Custody Determinations," Mardi J. Montello and Kathleen C. Dubois. The
Journal for the Bar Association of Metropolitan St. Louis. Missouri. Winter,
2001]
Organizations that focus on families and children have spoken out against
"friendly parent" provisions. Janet Johnston of the Center for the Family in
Transition wrote that "[t]he "friendly parent" provision specifies that the
parent most willing to provide liberal visitation to the other parent is
favored as the physical custodial parent (see Civil Code section
4600(b)(1)). This provision should not apply if it would impair the ability
of a parent to act in a child's best interest by protecting the child from
witnessing violence." ["Section III: Proposed Guidelines for Custody and
Visitation or Cases with Domestic Violence," High-Conflict and Violent
Parents in Family Court: Findings on Children's Adjustment, and Proposed
Guidelines for the Resolution of Custody and Visitation Disputes," by Janet
P. Johnston, Ph. D., Center for the Family in Transition. Corta Madera,
California.]
Jack Straton noted that "[f]riendly parent" provisions guarantee a batterer
frequent and continuing access to his victim. Such provisions force a woman
who has been beaten by her partner to submit to further abuse during
custodial exchanges or lose custody of her child." [""Joint Custody Laws
Facilitate Abuse," Jack Straton, University Studies, Portland State
University , Portland, Oregon].
Janet Normalvanbruecher pointed out Congressional findings regarding the
VAWA proposed 1999 amendments, H.R. 357, Title II, s. 241 as follows: ""For
purposes of determining child custody, it is not in the best interest of
children to (a) force parents to share custody over the objection of one or
both parents when there is a history of domestic violence; (b) punish abused
or protective parents who protect themselves or their children; (c) presume
allegations of domestic violence or child sexual assault are likely to be
made falsely or for tactical advantage during custody and divorce
proceedings; and (d) make 'friendly parent' provisions a factor when there
is abuse by one parent against the other or a child..." ["Stalking Through
The Courts" The "Father's Rights" Movement; How to Legally Stalk, Harass,
and Intimidate Victims of Domestic Violence after a Restraining Order has
been Issued," by Janet Normalvanbruecher; 1999.
http://www.gate.net/~liz/liz/FRtactic.html]
"Friendly parent" provisions have been rightly criticized in by Canadian
women's groups: "This parent will then be perceived as the 'unfriendly
parent' and risk losing custody altogether. It invites a lack of attention
to abuse and violence against women in relationships. It will increase costs
and litigation, thereby making separation and divorce disproportionately
difficult for women who are poor or under-employed, women with disabilities,
women from racialized and immigrant communities and lesbians." ["Analysis of
the Feedback Booklet" for the Federal/Provincial/Territorial Consultation on
Custody, Access and Child Support in Canada. Developed by the Vancouver
Custody & Access Support & Advocacy Association (VCASAA) and the Battered
Women's Support Services (BWSS), May 2001]
Canadian Joan Braun noted the difficult position protective mothers were in
when she stated that "[p]roblematically, raising allegations of child abuse
can actually work against the one raising them. S. 16(10) of the Divorce Act
states that, in making custodial determinations, the courts are to consider
the willingness of the custodial parent to facilitate contact with the other
parent. This has been called the "friendly parent presumption". As a result,
if a woman raises safety concerns, but is unable to prove her allegations,
she risks having the court conclude that she is merely being vindictive in
order to prevent her ex-partner from having contact with his child. On the
other hand, if she does not raise legitimate concerns she is putting the
child's safety at risk." ["Custody Order or Disordered Custody?," by Joan
Braun. Institute Against Family Violence, British Columbia , Canada]
In conclusion, I urge that you oppose SB 5511. It is best that the
Washington state legislature continue to uphold the Supreme court decision
re: Marriage of Littlefield and the decision rejecting "friendly parent"
provisions re; Lawrence v. Lawrence. The establishment of a "friendly
parent" provision in the state of Washington would increase malicious
litigation and it would provide unsuitable and abusive parents an avenue to
continue their harassment of their former partners and their children with
the blessing of the court system. If that were to happen, it would be a
miscarriage of justice.
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