My clients often believe that courts are biased and would make a woman primary custodial parent especially if that woman did not work full time during their marriage. Fortunately, this belief is rapidly changing from reality into a myth, which is proven not only by Washington statutes but also recent court of appeals decisions.
In making custodial arrangements, Washington courts apply factors set out in RCW 26.09.187(3). “Relative strength, nature, and stability of the child’s relationship with each parent” is one of the factors and is given the greatest weight. The courts also look at “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.” That means that if a husband takes slightly more care of the child then his wife, he can be found to be a primary custodial parent by the court during dissolution of marriage action.
In a recent unpublished opinion In Re the Matter of the Marriage of Irene Bubernak and Thomas Bubernak, the court of appeals upheld trial court’s decision to enter a parenting plan making Thomas the primary residential parent of the couple’s seven year old son.
In response to Irene’s evidence that she did not work full time for the first two years of her son’s life and, at trial, was his primary provider, the court of appeals stated:
“This fact, even if true, does not, however, necessarily mean that application of the “relative strength, nature, and stability of the child’s relationship with each parent” factor must weigh in Irene’s favor.”
The court considered other aspects of parties’ parenting skills. It is hard to tell from the court of appeals summary of evidence, what exactly was presented at trial. It seems that among other evidence the trial judge considered the following:
1. Testimony of Irene and Thomas regarding their parenting functions;
2. Testimony and report of court appointed parenting plan evaluator Jennifer Keilin, who interviewed both parents, conducted parent-child observations with both parents, reviewed an interpretation by Dr. Marsha Hedrick of her psychological testing of the parents, the filed pleadings, parents’ questionnaires completed by the parents and other materials provided by the parents.
3. Testimony of the friends, colleagues, including child’s kindergarten teacher, and a neighbor.
It seems that the trial court just like Keilin found that “the child appeared to have a somewhat stronger, more positive, and more stable relationship with Thomas.” From the summary of evidence provided by court of appeals it seems that in making distinction between parents both courts focused on negative aspects of Irene’s behavior.
For example, they emphasized that Irene had history of depression, difficulties managing time and other details, was a bit rigid, and had a tendency to become overwhelmed. At time she also had difficulty meeting the child’s emotional needs for consistency and routine.
According to the kindergarten teacher, the child was sometimes late at school when Irene brought him. She also testified that the child seemed more stressed at days when Irene brought him and that it took the child longer to get into the days’ routine on those days than on days when Tom brought him.
Neighbor testified that Tom and the child had a “great relationship” and that as a parent Irene “seemed a bit withdrawn.”
Parenting plan evaluator Keilin stated in the conclusion of her report:
“Both parents love [the child] and put effort into prioritizing his needs. The data supports that, of the two parents, Tom has a better emotional health and has consistently provided [the child] a stable, loving relationship. He also has somewhat stronger parenting skills, including a greater ability to provide structure and routine. Tom’s schedule is more flexible and he has greater availability that Irene. Finally, the child loves both parents, but he has a stronger affinity for and a better relationship with Tom.”
The trial court also considered Irene’s allegations of domestic violence, who claimed that Tom committed acts of physical aggression and exhibited signs of coercive controlling behavior. After hearing testimony of the parties’ joint counselor, a doctor who conducted a domestic violence evolution, and a mental health counselor, who performed risk assessment for Thomas, the trial court found no credible evidence that Thomas was physically violent to Irene or that Irene was ever in reasonable fear of any physical violence.
From my point of view, this case demonstrates not only a shift in man’s desire to share residential custody of the children but also it proves that at trial each and every little thing counts. It is absolutely essential not only to prepare your case for hearings and trials but also while the dissolution is pending to conduct yourselves in a way that would not jeopardize your future ability to request to be a primary residential parent for your children.
In cases where both parents took care of the child, the court will focus on mental health issues, even if they are not substantial. Little details like bringing the child late to school on occasion or acting somewhat irrationally might make a huge difference during a child custody battle.
