Putting the Children First
Recently I represented a father who hadn’t enjoyed unsupervised parenting time with his 15 year-old son for nearly two years. To some extent, he bore responsibility for the gap by ignoring court deadlines. But partly he was the victim of an angry ex-spouse who did everything in her power to deny him any parenting time. Mom dragged out court proceedings for nearly a year and then claimed that Dad shouldn't have any parenting time because, thanks to her litigation strategy, he hadn’t had any parenting time!
How does this kind of courtroom battle help the minor child? And what does the law say about the legal mandate that judges decide custody matters in accordance with “the best interest” of the child?
The “best interest” standard for deciding custody cases has been adopted by virtually all states and the District of Columbia. The purpose of such statutes is to ensure that decisions about custody prioritize the welfare and development of the child above all else. In Montana, for example, the factors to be considered by a judge are set forth in M.C.A. §40-4-212, plus anything else that a judge deems relevant to the decision. As a matter of policy the State of Washington very clearly declares that the child’s best interest is the most important factor in determining custody. R.C.W. 26.09.002. These factors include the parents’ stability and fitness, the kind of environment they provide, their mental health, whether there is a history of drug or alcohol abuse, and whether there has been domestic violence. Courts will consider the child’s wishes, although these may not be determinative. Other factors, such as the child’s psychological or developmental needs, may also pay a role.
That’s all well and good, but what about the process for deciding custody itself? Is a “custody battle” ever in the best interest of a child? Is the process of litigating these issues so inherently damaging that, by definition, it is not in the child’s best interest?
It is critical to remember that asking a judge to decide custody matters should always be the last resort. No matter what the outcome, there are no winners in litigation. Working it out with one’s spouse of the parties’ lawyers is almost always the best course. The best that can be said for judicial intervention is that there are times when there is no alternative, such as cases involving persistent and active drug use and the threat of violence. But that doesn’t mean that one’s former spouse or partner is fair game for whatever mud might be thrown their way. When it comes to kids, mutual respect and civility are essential, no matter how angry or hurt one might be. Keep to the high road.
In the end, the ability to treat the other parent with dignity and grace may be the most important factor in serving the child’s best interest. Parenting is a life-long commitment, and avoiding court is one way to honor that commitment.