In late spring 1998, the Washington State Supreme Court Gender and Justice Commission and the Domestic Relations Commission began a study of the Washington State Parenting Act. The Commissions developed a wide range of research questions, covering all aspects of the current implementation of the Parenting Act. One particular set of research questions concern the difficulties parents encounter in finalizing a parenting plan, the use of mandatory parenting plan forms, and the potential benefits and limitations of programs such as parenting classes and mediation.
This report presents the results of structured, in-depth, open-ended interviews with 47 professionals working with the Washington State Parenting Act. These key informants were recruited from throughout the state. The key informants include judges, court commissioners, attorneys, family law facilitators, mental health professionals, parenting evaluators, guardians ad litem, and activists. The key informants were recruited to represent the breadth and diversity of professional experience working with the Parenting Act.
There is very strong support for the Parenting Act among the key informants. The key informants steadfastly endorse the major policy goals of the Parenting Act--to require divorcing parents to focus their attention on their children's needs and to promote the continued involvement of both parents in children's lives. The key informants also strongly supported the Act's requirement that parents formulate a detailed plan for their children, and applauded the intent of the Act to allow parents to individually tailor their plans.
Most key informants believe that the process of getting a finalized parenting plan is extremely difficult for parents, many of whom are pro se litigants. Many key informants would like to see more help provided to pro se litigants, although some key informants see this as a stop gap solution and feel that affordable representation is the only real solution. Most key informants believe that the mandatory forms are too difficult for parents to use, and do not meet the needs of judges, court commissioners, and attorneys.
Most key informants acknowledge that the goal of individually tailored parenting plans is not often met, and that many parenting plans follow a "standard" every-other-weekend residential schedule. While some key informants defended this schedule as practical, others expressed frustration with its routine application.
Most key informants felt that joint decision-making, which is routinely specified in about three-quarters of all parenting plans, does not work well. Many key informants felt that joint decision-making is not well defined in most plans and is not well understood by parents. Many key informants view joint decision-making as a source of continuing conflict.
Most key informants support mediation both for formulating parenting plans and for resolving later disputes. Most key informants also believe that mediation should never take place in situations where domestic violence has occurred, and many key informants believe that mediation is inappropriate where there are substantial power differences between parties.
Most key informants believe that current provisions for modifying parenting plans are acceptable. Most believe that it should be quite difficult to modify a parenting plan in order to provide stability for children and to discourage relitigation. Most key informants believe that the current situation with respect to parental relocation is too vague and would like greater clarity in the procedures and principles.
Most key informants would like to see greater clarity in the roles of parenting evaluators and guardians ad litem.
Many key informants believe the Parenting Act is not working well for survivors of domestic violence. Key informants report that the civil justice system is especially unresponsive to domestic violence survivors. Domestic violence survivors' concerns about safety may not be adequately addressed so they have difficulties securing needed limitations on their abuser's residential time and may be pushed into unsafe situations in parenting classes or mediation. Abusers may co-opt the civil justice system to harass their victims by refusing to comply with court orders, such as attendance at mandatory classes, or by using legal tactics to intimidate their victim.
Many of the research questions developed by the Gender and Justice Commission and the Domestic Relations Commission concern parents' interactions with the civil justice system. Some information about these topics was gathered through focus groups with parents. To complete the picture, information was also gathered from professionals working in the civil justice system with the Parenting Act.
In the course of conducting interviews with professionals working with the Parenting Act it became apparent that some of the research questions were overly narrow or overly broad and, as a result, the research questions were rephrased. Information from the focus groups and an analysis of a sample of parenting plans also prompted some rephrasing of the research questions.
In addition, many of the professionals interviewed volunteered information about aspects of the Parenting Act that are not covered by these questions. Some of the professionals reflected on their particular role in the civil justice system and on what they saw as the roles of other professionals in the system.
Information about professionals' experiences with the Parenting Act, and about the functioning of the Parenting Act in the broader context of the civil justice system was collected through structured, open-ended interviews with professionals working in the civil justice system. As explained below (2.a. Recruitment of Key Informants), the professionals who were interviewed were selected for their particular experience and expertise about the Parenting Act. For this reason the interviewees are referred to as key informants.
The key informant interviews furnish information about the Parenting Act from the perspective of parenting plan providers. Provider perspectives strengthen the study in several ways:
This section presents findings from the interviews with key informants. The material presented reflects common themes that recurred throughout the interviews. This section includes verbatim quotes from key informants which are intended to illustrate the main points. For ease of identification, quotes are shown in italics and the profession of the key informant is noted.
The presentation of the findings is organized as follows. First, key informants' responses to the question, "What are the main strengths of the Parenting Act?" are described. However, this is NOT followed by key informants' responses to the question, "What are the main shortcoming of the Parenting Act?" This is because key informants' analyses of problems with the parent act were diverse and often contradictory. Therefore, the rest of the findings are presented thematically. Thus, the second set of findings refers to the process of getting a court-approved parenting plan. The third and fourth sets of findings contain key informants' perspectives on specific parts of a parenting plan: the residential schedule and decision-making. The fifth and sixth sets of findings include key informants' perspectives on parenting classes, mediation, and arbitration. The final set of findings present key informants' perspectives on issues related to changing parenting plans.
- Strengths of the Parenting Act
Throughout the key informant interviews there was very strong support for the Parenting Act. Nearly every key informant went to some pains to stress to the researcher that he or she supported the Parenting Act-even key informants who were quite critical of parts of the Act, or current implementation of some sections of the Act, or the civil justice system. The following comments were typical:
"I know I've complained most of the time. But this is basically very good public policy--excellent public policy." --Attorney
"It was a godsend. You have to understand what things were like before."
--Activist
Key informants identified three specific strengths of the Parenting Act.
i. Policy Goals
There was very strong support for the policy goals of the act. Key informants identified two (2) policy goals as especially important:
- Parents should put aside their own issues and focus on their children and figure out what is best for their children.
- Parents should recognize the continuing importance of both parents' involvement in their children's lives and should plan for that involvement.
"It is a very progressive piece of legislation. It redefines children and says they aren't property and that parents have to meet their needs it promotes coparenting and says parents have to normalize their post-divorce relationship." --Mediator
"This Act insists that you pay attention to your children." --Mediator
ii. Specificity and Flexibility
Key informants stressed that the Act's combination of individual tailoring of post-divorce parenting arrangements with a clear, well-specified plan was a major public policy contribution. Key informants from a wide variety of professional backgrounds mentioned "specificity" or "detail" or "a clear structure" as the greatest strength and benefit of the Parenting Act. Most key informants also noted that while the Act requires parents to develop a rather detailed and quite specific plan, the law also provides for individual tailoring of plans, and enables parents to be quite flexible, if they can manage this with their ex-spouses.
"A lot of parents need the detail and clarity. The parenting plan says, Here's a list of things to figure out and here's what we're going to be doing.' That's good." --Facilitator
"Reasonable visitation only worked for reasonable people. Most people need the details specified that are there in the plan. It's much better than the old days."
--Judge
"It gives parents a structure and a way to make a plan. But there's also individual tailoring and parents know their kids best." --Psychologist
"Part of the beauty of the Act was not having a prescribed arrangement."
--Activist
In combining specificity with the option of individual tailoring, the Parenting Act is in accordance with the recommendations of leading divorce and child development experts. These experts are in agreement that "one-size-fits-all" approaches to post-divorce parenting are poor public policy because they are unlikely to meet the needs of all children and families (see Chapter 4, What the Experts Say). The experts also advocate clear, predictable, stable arrangements for children.
iii. Dispute Resolution
Many key informants mentioned the requirement that parenting plans specify a dispute resolution mechanism as an important strength of the Parenting Act.
"Anything will work with reasonable people who are getting along. A major strength of the parenting plan is that it says, Now what are you going to do when you don't get along, when you can't agree, can't decide?'" -Judge
- Getting a Parenting Plan
Many of the shortcomings of the Parenting Act identified by key informants had to do with the process of getting a parenting plan. Many key informants felt that the Parenting Act had made the legal aspects of divorce unnecessarily complex and expensive for parents and may have inadvertently heightened conflict between parents. Several specific themes were common in key informants' accounts of the shortcomings of the Parenting Act and difficulties facing parents seeking a parenting plan.
i. Pro se Litigants
Nearly all the key informants believed there has been a huge increase in the proportion of litigants who do not have legal representation as a source of problems in the civil justice system. The Office of the Administrator for the Courts reported 48% of superior court domestic cases in 1998 involved at least one pro se party.3 Nevertheless, key informants reported that:
- Seventy (70) percent of family law cases in Washington have at least one pro se litigant.
- Seventy-three (73) percent of family law cases in King County have at least one pro se litigant.
- Sixty-five (65) percent of new family law filings in Thurston County are by pro se litigants.
- Nearly fifty (50) percent of the family law cases Yakima County have a pro se litigant
In order to help pro se litigants navigate their way through the civil justice system, many superior courts now have family law facilitators who help pro se litigants complete necessary paperwork but are not able to dispense legal advice. However, many facilitators are overwhelmed by the demand for their services and sometimes litigants must wait for an appointment with a facilitator. Several facilitators could only arrange time to be interviewed for the study in the evening or on the weekend.
The reasons for the increase in pro se litigants are not clear. Several factors seem to be important.
- Reduced free and low cost legal services due to the elimination of public funding sources for these services.
- Increased reluctance by the public to pay for legal representation.
- Increased lawyers' fees that render legal representation too expensive for many people.
Some key informants stressed the need to provide more services to assist pro se litigants. Most key informants, however, were skeptical of this approach.
"Really and truly they need representation. King County is a very difficult place to be a pro se. It's a difficult place to practice law--the court rules, the case schedule, everything." -Court Commissioner
ii. Costs
Most parents who participated in the focus groups felt that the costs of getting a dissolution of marriage and parenting plan were extremely high (see What Parents Say). Many key informants shared this opinion--often blaming rising legal fees for the increase in pro se litigants.
Some key informants felt that the Parenting Act had contributed to rising legal costs.
"It's a longer, more complex document. So it costs more." -Attorney
Like the parents in the focus groups (see What Parents Say), key informants also pointed to the costs of mediation, parenting evaluations, and guardians ad litem as part of the high costs of getting a divorce. Some key informants expressed concerns that the high costs of these services might drive some parents outside the civil justice system.
"Once there's a GAL appointed, that's it. They can't pay and the GALs in this county often want money up front. So we don't see a lot of them again. They go off and do their own thing." -Facilitator
Key informants also pointed to larger social trends as the cause of higher legal costs.
"Families are more complex these days--you don't have mom at home and dad at work. And they want more--they want a more complex deal, not just mom gets the kids." -Attorney
"Of course it's expensive to get a divorce--it's complex unraveling two lives. And that's without the kids." -Attorney
iii. Time
Like the focus group participants (see What Parents Say), key informants expressed concern about the length of time to finalize a decree of dissolution and a parenting plan. Several key informants felt that the process had become unreasonably slow, and that the complexities of the Parenting Act were partly to blame. Key informants also pointed to the number of steps involved in many dissolutions: parenting classes, mediation, parenting evaluations, and so forth; all of which add to the time it takes to finalize a parenting plan.
Some key informants in King County were very critical of the King County Case Tracking System. These key informants felt that the case tracking system tended to increase conflict in divorces by "keeping things on the boil" instead of providing for a cooling off time early in the process followed by a swift resolution later in the process.
iv. Forms
Most key informants reluctantly accept that the mandatory parenting plan forms are necessary and useful. Key informants saw the forms as providing parents with a helpful checklist of issues to be resolved.
"The mandatory forms provide structure and ensure that all the issues are addressed." -Psychologist
However, most key informants also identified problems with forms--although different informants tended to see different problems.
Many focus group participants reported that the parenting plan forms were difficult to use (see What Parents Say). Facilitators and other key informants who work with pro se litigants shared this view. Some key informants suggested that the complexity of the parenting plan form is one reason why so many parents find it difficult to develop a creative residential schedule that meets both parents' and children's needs.
"It's hopeless. Most people need a lot of help, but we can't do it. So they just go home and fill it out--a routine form kind of thing." -Facilitator
"Most people [who come to the facilitator] are really desperate. They need to get something accomplished and the forms are really hard." -Facilitator
Some key informants, especially judges and court commissioners reported that the forms were too long and too detailed. Several key informants expressed the view that the detail in the forms could sometimes spark conflict.
"There is way too much paper. The forms are necessary, but they must be reducible." -Court Commissioner
"Well now they have to decide every single thing ahead of time--where Johnny's going to be on Presidents' Day in odd-numbered years. And so they fight about every single thing." -Attorney
Finally, some key informants pointed out that the format and language of the parenting plan forms sometimes created difficulties.
"They are unreadable. In the end you get to a document that is unreadable and unintelligible. A competent attorney could draw up a simple, clear, readable document in a couple of pages." -Judge
"Do you know what that part about priorities means? It's gobblydegook. They have to be able to be clearer." -Mediator
"There's not enough space--we always end up writing all over the margins."
-Mediator
Surprisingly, although the forms are supposed to be standard across the state there is a considerable amount of variation. Some forms list all the possible restrictions at the beginning; some do not. Some forms provide parents with two or three choices of residential schedules to select from; some do not, and so on.
Many of the problems that arise with the forms stem from the way the forms are used and the wide range of users. The forms aim to accommodate the differing needs of pro se litigants, attorneys, mediators, and judges. The problems with the forms also reflect the differing needs of the parents using the forms. Some parents need detail and specificity and some do not.
v. Parenting Evaluations and Guardians ad Litem
Many of the key informants and some of the parents who participated in the focus groups (see Chapter 1, What Parents Say) expressed concern or uncertainty about the various roles of parenting evaluators and guardians ad litem in the civil justice system.
Typically, a parenting evaluation is ordered or a guardian ad litem appointed when there are allegations of serious problems that might limit one or both parents' ability to parent, or when the parents are unable to agree on a parenting plan and the court is seeking to determine the best interest of the child. Parenting evaluators are professionals with expertise in child development and parenting. Guardians ad litem are often attorneys. Parenting evaluations are sometimes conducted by individuals working for the courts or may be conducted by private practitioners. Parenting evaluations can involve several meetings with parents and children, as well as conversations with other involved parties, such as school teachers, and detailed readings of medical, educational and other files. Private parenting evaluations can cost up to $10,000, although $4,000 to $6,000 would be more typical. Private guardians ad litem are also expensive, although volunteer services are available.
Aside from the expense, the concerns raised about parenting evaluations and guardians ad litem included the following:
- Time
Many key informants felt that the process of ordering an evaluation or appointing a guardian ad litem is too slow. As noted later (see 3.c.v. Limitations), many key informants believe that evaluations should be ordered or guardians ad litem appointed as early in the process as possible. Key informants also felt that some evaluators were unreasonably slow in completing their reports--many said that six months was not uncommon. Finally, judges and court commissioners expressed frustration that reports were often quite dated by the time a case came to trial. In short, the process ought to be streamlined, and the timing of reports more closely matched to the timing of hearings and trials.
- Background and Training
Many key informants expressed concerns about the background, experience, and training of parenting evaluators and guardians ad litem. Some key informants felt that evaluators and guardians ad litem often interject their own cultural and class-based expectations about parenting into their reports. Key informants who work with domestic violence survivors expressed concern that some parenting evaluators and guardians ad litem have little training and knowledge about domestic violence and tended to be easily manipulated by abusers and not empathetic toward victims who were suffering the psychological consequences of abuse.
At present there is only one graduate-level training program for parenting evaluators in Washington State--the program offered by the University of Washington. Very few parenting evaluators have received this training., Guardians ad litem or Court Appointed Special Advocates appointed after January 1, 1998 are required to complete the curriculum developed by the Office of the Administrator for the Courts or an alternative program approved by the OAC.4
- Standards of Practice
Standards of practice for evaluators and guardians ad litem are not well established and some evaluators and guardians ad litem engage in practices that many key informants (including the evaluators and guardians ad litem interviewed for the study) found unacceptable. In general, key informants felt that evaluators and guardians ad litem should adopt a forensic role, providing the court with evidence, rather than an advocacy role, promoting the interests of one party. Key informants also felt strongly the evaluators and guardians ad litem should avoid including anything other than first-hand information in their reports; i.e., they should not include evaluative statements about individuals they had not interviewed. Key informants also felt that parenting evaluators and guardians ad litem should not give great weight to reports from parents' family members and friends. Many attorneys felt that greater clarity is needed in specifying the role of the guardian ad litem.
- He Says/She Says
Some highly conflicted cases involve two evaluators where both parties secure their own private evaluations. This amounts to a he said/she said situation by proxy. Some evaluators working in King County have a clear reputation as "dad's evaluators" or as "mom's evaluators." Most key informants were prepared to name individuals with these reputations, and most felt that such situations should be strongly discouraged by the courts.
- Who Writes the Plan
Some evaluators and guardians ad litem offer their findings and recommendations in the shape of a parenting plan written on a parenting plan form. Most key informants felt that this was unacceptable. Key informants felt that in highly conflicted cases where evaluators and guardians ad litem are involved, it is imperative that attorneys draft parenting plans so the rights of parents are protected, and the court should make a final ruling, rather than simply adopting a recommendation.
vi. Domestic Violence
This portion of the report has focused on the process of getting a parenting plan. Key informants pointed to a series of issues that can complicate the process of getting a parenting plan: pro se litigants, high legal costs, a complex and lengthy time schedule, complex forms, and the system of parenting evaluations and guardians ad litem.
All these problems are far more severe for survivors of domestic violence.
- Key informants who work with domestic violence survivors believe they are nearly always pro se litigants. They often leave their abusers with no resources, and their abusers may have tried to minimize their access to resources. Abusers often have access to legal representation.
- The legal process is more complex for domestic violence survivors and may involve more hearings and more paperwork because it includes seeking protection orders. Domestic violence survivors may also need to get special exemptions from some court-required procedures like mediation.
- Cases involving domestic violence are more likely to be referred to a parenting evaluator or guardian ad litem.
All these factors combine to make the Parenting Act especially difficult for domestic violence survivors to use.
In addition, domestic violence survivors may face a form of legal harassment as their abusers manipulate the court system. Abusers may use stalling tactics or unnecessarily complicate the legal situation to harass, frustrate, and terrorize their victims. Examples of this include repeatedly refusing to attend mandatory parenting classes and thereby forcing the victim to seek a resolution to her case without his compliance, and threatening to use legal tactics to step up the conflict unless the victim accedes to certain demands. Many key informants reported direct experience with tactics of this type, and more information is provided elsewhere in this report. Comparable accounts from focus group participants are provided in Chapter 1, What Parents Say.
- The Residential Schedule
Most key informants identified the residential schedule as the core of the parenting plan and as the source of most conflicts between parents. Many key informants saw discord, or at least differences, between parents over the residential schedule as almost inevitable. Commentary on the types of difficulty that can arise as couples plan residential schedules occupied a large portion of most interviews.
i. Gender Bias
Nearly three-quarters of first parenting plans provide for the mother to be the primary residential parent. Among modified parenting plans, mothers are only slightly more likely than fathers to be the primary residential parent (see What the Records Show).
As noted elsewhere (see Chapter 1, What Parents Say), most parents believe the dominance of mothers as primary residential parent is due to gender bias in the civil justice system.
Many providers agree that there is a gender bias in favor of mothers in the civil justice system. Providers tend to blame numerous factors for the bias in the system.
Some providers see gender bias in distribution of primary residential parents as a reasonable reflection of larger social patterns of parenting.
"Maybe it creates the appearance of bias. But in reality, in most families, mom is the primary caretaker. And when mom has been primary caretaker that's where the kids need to stay." --Guardian Ad Litem
In contrast, other key informants reject the argument that the distribution of primary residential parents reflects broader social patterns, and see gender bias as inherent in the language of Parenting Act.
"The emphasis on who gave primary care in the past is not well thought out--it's a built-in bias against men that rewards child care over income support."
--Guardian Ad Litem
Others accuse judges of being gender biased in favor of mothers.
"Some judges are very conservative about men's ability to parent." --Attorney
And others blame attorneys.
"I don't represent women or men. I represent both. But men are disadvantaged from the get go. It is often very hard for them to find someone who'll even take their case." --Attorney
In general, however, providers tend to view gender bias in favor of mothers as far less automatic than do parents and as far weaker than it was before the Parenting Act.
"Fathers that know how to respectfully and properly approach the court can get an equitable result." --Activist
"It allows us to look at how dad does once he has the kids alone for periods of time. This gives dads more equal standing." --Parenting Evaluator
"Dad gets the kids in about 40 percent of my cases. I don't automatically assume that mom is the best parent." --Guardian Ad Litem
Providers who work with domestic violence survivors, like the survivors themselves (see What Parents Say), tend to point to other more subtle patterns of gender bias in the civil justice system that work against women.
"Well if there's a bias in favor of mothers--and I'm not sure there is any more--it's the only bias that works in favor of women. In general the courts are much less likely to believe women than men. [Researcher: Believe them about .?] Well, violence to start with. But also money." --Activist
"I think in general the courts take women's problems much more seriously than men's. If a mother drinks or uses drugs it's a big deal. But they don't look at why she drinks--at the whole picture. That maybe that's how she copes with being abused and battered." --Attorney
"They just don't take domestic violence seriously--they don't believe the women and they don't see the seriousness of it for the kids. So the courts are creating the next generation of batterers--little kids who see their father's got away with it. The ideas are still there that maybe she asked for it. Or that it's just a relationship thing--between the adults--and it shouldn't affect his relationship with the kids. Well it should--because of the message it sends to the kids and the danger it [continued contact between the father and the children] places the woman in." --Attorney
ii. Language
Nearly all the key informants used the language of custody and visitation as they talked about the Parenting Act. The use of this terminology appears to have been extraordinarily resistant to change among professionals working in or with the civil justice system. Even key informants who said they found the "old" terminology unhelpful or offensive occasionally lapsed into talking about custody and visitation, rather than discussing the residential schedule and the primary and nonprimary residential parents. By the end of the study the researcher had formed the opinion that professionals working with the Parenting Act were more likely to use the obsolete terminology of custody and visitation than parents were.
A couple of attorneys, when asked directly about their use of "custody and visitation" said that their clients found the Parenting Act's terminology confusing and difficult. The researcher did not observe this in the focus groups (see What Parents Say). Parents talked fluently about their arrangements, usually referring to "my house," "mom's house," "dad's house," and where their children live at various times.
The issue of language is not trivial. The continued use of "visitation" and "custody" by some judges, court commissioners, attorneys, parenting evaluators and guardians ad litem, legitimizes these terms and undermines the intent of the Parenting Act to reject these distinctions in favor of the more neutral "residential schedule." It is unlikely that parents in highly conflicted cases will be able to put aside their emphasis on "having custody," with its undertones of ownership and control of children, while they continue to be exposed to this language among parenting plan providers.
iii. Every Other Weekend
By far the most common residential schedule is the so-called every-other-weekend schedule. Under this arrangement the children live with one parent, usually the mother, most of the time, and spend every other weekend and a mid-week evening with the other parent (see What the Records Show). Not only is this arrangement the most common, it is extremely unusual for a nonprimary residential parent to have more time with his or her children than is provided for by every other weekend. In many cases every other weekend is a maximum schedule for nonprimary residential parents.
Many parents, especially primary residential parents, find this arrangement satisfactory (see What Parents Say). These parents emphasize that an every-other-weekend schedule provides for continuing involvement of the nonprimary residential parent while minimizing disruption of the child's school week and the amount of communication and coordination the parents must undertake.
However, many parents, especially nonprimary residential parents are profoundly dissatisfied with every-other-weekend schedules (see What Parents Say). These parents feel that the schedule limits their opportunities for parenting by limiting their involvement during the school week and leaves them in a marginal position. Many of these parents argue that every-other-weekend schedules are effectively the same as old-style visitation, and, as is noted below, some key informants agree with them.
The dominance of the every-other-weekend schedule is troubling. It is at odds with the advice of child development and post-divorce parenting experts who emphasize the importance of individualized post-divorce arrangements that are tailored to the needs of particular children and families (see What the Experts Say). Further, it suggests that the goals of the Act, to provide parents with flexibility and to encourage them to individually tailor their parenting arrangements, are not being met. Rather, many parents are getting cookie-cutter parenting plans that are not very different from the arrangements they would have had before the Parenting Act.
"Well, it's my impression that the Parenting Act has just really codified what we were doing before anyhow. Most cases are every other weekend. That's what we were doing before." --Court Commissioner
Why is the every-other-weekend schedule so dominant? Several factors seem to be involved.
- The Normal Arrangement
Because every other weekend is the most common arrangement it has come to be regarded as the "normal" arrangement. This is significant because many parents begin the process of developing a parenting plan by asking, "What do most people do?" or "What is normal?" Faced with this question, court facilitators who assist pro se litigants, mediators and attorneys, answer with the every-other-weekend schedule.
"It's very unusual to vary from this [every other weekend]. All the attorneys use it, too." --Facilitator
Like many parents, many key informants favored every-other-weekend schedules as more practical and manageable.
"I just don't think most families can really do much better than alternate weekends." --Judge
"So many people just have unrealistic expectations. They think everything can be the same with their kids after the divorce as it was before. Well it can't. What works for most people is every other weekend." --Judge
When parents propose something other than every other weekend, most attorneys and mediators steer their clients toward every other weekend.
"The typical plan? Well 70 percent have every other weekend with Wednesday evening. They trade off holidays and breaks." --Mediator
"I tell my clients that, realistically, they can get alternate weekends and a weekday evening." --Attorney
"I try to formulate a plan to get my client to be reasonable and to adjust to the norm." --Attorney
"They fight and they fight and they end up with the same plan anyway."
--Attorney
- Guidelines
A second factor in the dominance of every-other-weekend schedules is the widespread use of guidelines for the residential schedule. While some counties, like Thurston County, do not have guidelines or, like King County, have guidelines that are rather infrequently invoked, other counties rely heavily on guidelines. For the most part guidelines advocate every-other-weekend schedules for all but the youngest and oldest children.
Spokane County has the most elaborate set of guidelines. These guidelines were developed by an internationally renowned set of child development experts. The guidelines identify important considerations in developing a child's residential schedule and offer suggestions for a residential schedule while encouraging parents to consider the particular needs of their own child. The guidelines also provide parents with information about the developmental needs of children of various ages. Thus, the Spokane guidelines are largely informational, although their recommendations regarding the residential schedule are quite widely followed in Spokane County.
Other counties use guidelines in a far more prescriptive fashion. For example, Yakima County's guidelines are a single page that says what residential schedule ought to be followed by children of a certain age; for most children an every-other-weekend schedule is recommended. The Yakima guidelines provide little rationale for the schedules and do not encourage parents to adjust them to their children's circumstances. Many parenting plans approved in Yakima County do not specify a residential schedule but simply refer the reader to the guidelines. This use of guidelines might be regarded as contrary to the spirit of the Parenting Act.
- The Best Schedule
A third reason for the dominance of the every-other-weekend schedule, which is related to the widespread use of guidelines, is the belief among many key informants that every other weekend is the "best" schedule.
"I think we have to pay close attention to what child development experts tell us. And my understanding is that every other weekend is best for most families." --Judge
"Well--the mental health community. They've really pushed every other weekend." --Court Commissioner
Some key informants blamed attorneys for the continued dominance of every-other-weekend schedules, arguing that attorneys are not creative in the parenting plans they formulate and making a connection to the continued widespread use of the language of custody and visitation.
"Practitioners haven't given the plan a real chance--they fight over it like it's a traditional custody/visitation battle. There are so many traditional plans. They decided a tool wasn't useful so they didn't bother to learn to use it well."--Activist
"Most lawyers just aren't very creative--they get paid win or lose."
--Activist
Some key informants expressed dissatisfaction with both guidelines and the every-other-weekend schedule, often pointing to dramatic social changes over the past 30 years that have resulted in fathers being far more involved in their children's lives.
"I think some of these guidelines are unnecessarily restrictive. I'm a grandparent and I'm amazed at how my son is with his children. We have to catch up to that." --Judge
Finally, some key informants noted that the every-other-weekend schedule was itself changing.
"Weekends are getting longer. They often start on a Thursday now. And men can get close to half the summer." --Attorney
"I'm not so sure about the midweek visit--I think it can be disruptive. It makes more sense to make the weekends longer, to have them start on a Thursday or even a Wednesday, or have them run until Monday evening." --Psychologist
iv. Shared Parenting or 50/50
The Parenting Act gives parents the option of a 50/50 schedule, providing they meet certain stipulations (see What the Records Show). In practice, however, few parents have this schedule and few parents want this schedule (see What the Records Show and What Parents Say). Nevertheless, some parents are so frustrated with every-other-weekend schedules that they advocate a presumption of 50/50 parenting. Proposals to this effect have been introduced into the Washington State Legislature regularly since 1982, however, the state Legislature has refused to enact a "joint custody" law.5 Child development and post-divorce parenting experts generally do not favor a presumption of 50/50 parenting (see What the Experts Say). They point out that such arrangements are unmanageable for many parents, that most parents do not communicate and cooperate well enough after a divorce to effectively share parenting 50/50, and that if the parents are in conflict 50/50 arrangements can be harmful to children.
Nearly all the key informants were strongly opposed to shared parenting or 50/50 residential arrangements. Most key informants explained their opposition by referring to the needs of children, although some noted that not all parents could successfully manage shared parenting.
"When people tell me they want every other week I just cringe." --Mediator
"The bottom line is it does not work for the kids. It works beautifully for the parents--they get the benefits of time with the kids and time off. But the children bear the stresses." --Guardian Ad Litem
"Fifty/fifty is really about people putting their needs ahead of their kids' needs."
--Attorney
"Coparenting is not just about time. When parents do 50/50 the kids are bounced around in constant chaos, stress, and upheaval." --Psychologist
"It's a tremendously bad idea. It forces people to have too much interaction. Eighty percent of my clients need limited contact." --Attorney
Several key informants noted that few married people divide parenting responsibilities evenly, and argued that the emphasis on continuity for children in the Parenting Act all but precluded 50/50 arrangements.
"Should it be required for married people too?" --Judge
Although most key informants were strongly opposed to 50/50 residential schedules, a few were open to the idea, provided the parents were in agreement.
"There's a presumption that it's bad for the kids--but we don't really know."
--Court Commissioner
"I've really come round to it. When it's what parents want, and they've thought it through, and they're in agreement, I think it can be good." --Court Commissioner
"Well I don't think it's usually a good idea. But, yes--I will do it in certain cases." --Court Commissioner
Finally, three (3) key informants favored a presumption of a 50/50 residential schedule.
"I support a rebuttable presumption of joint and equal custody the Parenting Act has not met its goals of encouraging parents to cooperate the system does not encourage cooperation, it encourages litigation." --Attorney
v. As Agreed
Nearly one in every five parenting plans does not specify a residential schedule, but leaves arrangements to be agreed between the parents or between the parents and the child (see What the Records Show). At first glance this finding might appear discordant with the finding that most key informants regard the specificity and detail of the parenting plan as a significant benefit of the Parenting Act.
However, some key informants believe that a clear subset of families simply do not require the details required by the Parenting Act, and are better off without the details which can be the source of conflict (see 3.b.iv. Forms).
"Some people just don't need it [a parenting plan]. They do fine on their own."--Attorney
"The main strength of the plan is also its main weakness. Sometimes all that detail is unnecessary." --Attorney
Other key informants expressed great concern about the persistence of "as agreed" arrangements.
"It's what the Parenting Act was supposed to stop. It's all right while everyone gets along. But when they don't it's a disaster." --Court Commissioner
"I can't believe that judges and commissioners will sign those plans. They ought to know better. I see plenty of plans that should never have been approved--they come to me when they need to clean up the mess." --Attorney
vi. Limitations
Nearly one in every five parenting plans specifies that one or both parents' residential time should be limited. The most common reasons for these limitations are substance abuse and domestic violence (see What the Records Show). Nearly one third of the parenting plans that specify that one parents' residential time should be limited nevertheless have every-other-weekend schedules. These plans tend to have restrictions on the circumstances of residential time rather than on the amount of residential time.
Many key informants believe that the Parenting Act's provisions for limiting one parent's residential time works adequately--that when there is clear evidence of a factor that ought to limit one parent's time, those limitations are usually imposed and enforced.
"The limitations are a real strength of the law--they force the problems out into the open." --Court Commissioner
But a substantial minority of key informants expressed concerns that the system was not working well. Some pointed to the widespread misunderstanding of the limitations among pro se litigants who often inappropriately check one of the limitations listed on the mandatory parenting plan forms.
Key informants who work with domestic violence survivors report that it is often very difficult for domestic violence survivors to get limitations included in their parenting plans, and domestic violence survivors who participated in the focus groups confirmed this. They cited several factors:
- The courts may not believe women's accounts of domestic violence.
- Abusers may be able to manipulate the system to gain greater credibility for their account of events than their victim's account.
- Victims often have few resources and are more likely to be pro se litigants, while their abusers can more often afford legal representation.
- Abusers may intimidate and harass victims so that they do not report abuse.
- Victims may be fearful of "losing their children" and so do not report or minimize violence.
- The court and/or parenting evaluators may place a higher value on an abuser's contact with his children than on a woman's safety and so may permit contact when it is dangerous to the woman.
Numerous key informants reported direct knowledge of situations where these considerations had led to women who were battered not having restrictions included in their parenting plans.
"Domestic violence is tough. Sometimes it's very hard to help the woman. You know what's going on--that she's being intimidated--but unless she initiates it, you can't do anything." --Judge
"There's a lot of trading. He says don't make a fuss or else . Then later she comes back to me wanting restrictions and there's nothing in the file." --Court Commissioner
One facilitator who worked extensively with domestic violence survivors offered the following recommendation:
"Any time there is a concern--an allegation or a suspicion among court personnel--there ought to be a safety assessment. There should be a standard form for conducting a lethality risk assessment of the batterer. We need to err on the side of safety because what the court thinks is fair is often dangerous to the women and children." --Facilitator
Mental health workers also favored early assessment of factors such as domestic violence and substance abuse.
"Often it takes too long, months. We need to identify these cases and get them into comprehensive evaluations earlier. It takes too long to process allegations." --Psychologist
Five key informants expressed concerns that sometimes limitations are inappropriately imposed, and a parent's residential time unjustifiably restricted because of false allegations. False allegations that are not substantiated and do not result in limitations can cause great harm to a parent who must undergo evaluations, and may have temporary restrictions on residential time. These key informants believe that women who accuse their husbands of domestic violence most often make false allegations.
The overwhelming majority of key informants do not consider false allegations to be a widespread problem. Most of the key informants expressed concern (unprompted by the researcher), that the stigma and fear surrounding domestic violence are so great that some women who have been victimized do not report the abuse. Nevertheless, most key informants acknowledged that false allegations are occasionally made. Some key informants expressed the opinion that making false allegations was not gender specific, and that small but roughly equal proportions of men and women make false allegations. According to this view, men are unlikely to file false domestic violence claims but may make false allegations of substance abuse or child abuse.
"Some people read that list [of factors that can serve as a basis for restrictions] and are determined to find one to check." --Guardian Ad Litem
- Decision-making
Nearly three-quarters of all plans specify that divorced parents should make major decisions about their children, typically those dealing with health, education, and religion, jointly (see What the Records Show). Very few parents follow this part of their plan. Most often primary residential parents make major decisions often to the chagrin of nonprimary residential parents (see Chapter 1, What Parents Say).
i. Impracticality of Joint Decision-making
Some key informants were strong proponents of joint decision-making.
"It's good. The lead' parent can't call all the shots you can't just blow off another parent." --Court Commissioner
Many more, however, had come to the conclusion that joint decision-making does not work for most families.
"To pretend that people will make all decisions like they're still married is ridiculous." --Activist
"There is almost a presumption of joint decision-making. It should be much less automatic." --Attorney
Many key informants felt that joint decision-making allowed ex-spouses to prolong needless conflicts.
"There are some things--like religion--that they'll never agree on. I think we should eliminate joint decision-making." --Attorney
"Reluctantly, I now think that joint decision-making is not a great idea. It's an invitation to endless futile dispute for the most part [parents' decisions] are not bad decisions--they're judgement calls." --Attorney
Some key informants felt the joint decision-making provisions in the parenting plan were not being effectively used or well understood by parents and practitioners.
"We stress to our clients that joint decision-making means they will discuss important matters. It doesn't mean they'll agree--so we try to have them figure out what they'll do if they don't agree." --Mediator
ii. Harassment and Abuse
Many key informants echoed the concerns of parents (see What Parents Say) that joint decision-making can be used by one parent to harass this other. Key informants who work with domestic violence survivors were particularly likely to raise this concern.
"I think it's a mistake. It gives people an opportunity to try to control and harass their ex. There are a lot of controlling people out there." --Attorney
"Joint decision-making is really problematic for battered women. For them it's like they have to ask their abuser permission. And the batterers--well they manipulate it. They use it to terrorize women." --Attorney
iii. Children's Access to Services
Finally, joint decision-making can make it harder for children to get necessary counseling and psychological help.
"We're supposed to get both parents' permission to begin counseling. It puts us in a bind. Sometimes one parent just can't contact the other. Sometimes one parent is playing games, messing the other parent around. Some parents just won't agree to anything." --Psychologist
- Parenting Classes
Many counties require parents to attend a parenting class or class about divorce and parenting. Some counties; e.g., Thurston and Snohomish Counties, require all parents filing for a dissolution of marriage to attend a class. Other counties; e.g., King County, only require parents who are in dispute over some aspect of the parenting plan to attend a class. As part of the study the researcher attended and observed two parenting classes. Parenting classes were a frequent topic of conversation in the interviews.
i. Content
Parenting classes generally cover all or some of the following four subject areas:
- The system--getting a divorce
- The effects of divorce on children
- How children cope with divorce
- How to coparent after divorce
Information about the civil justice system is particularly useful to parents seeking a dissolution of marriage. As noted elsewhere (see 3.b. Getting a Parenting Plan and Chapter 1, What Parents Say), a shortage of accurate information about the civil justice system is a major challenge to divorcing parents. Parents' lack of knowledge about the process of getting a dissolution of marriage and a parenting plan is also a major challenge facing professionals working in the civil justice system.
Advice to parents about how to achieve and manage an effective coparenting relationship after a dissolution of marriage is also very valuable. Parents tend to be more familiar with accounts of conflicted or unsuccessful post-divorce coparenting relationships than with strategies for cooperative post-divorce coparenting (See What Parents Say).
Information about how children react to their parents' divorce is also very important for parents. This information can help parents better manage their post-divorce parenting arrangements and may dissuade some parents from inappropriate behaviors, such as withholding their child from the other parent.
Information about the effects of parents' divorce on children may be less helpful to parents. Nearly all the parents attending the classes are determined to divorce (those who are seeking to modify their parenting plans are already divorced) and are unlikely to reverse their decision. Telling these parents about potential harms to their children, rather than devoting extra time to strategies to minimize these effects, seems more punitive than helpful.
Although most of the information presented at parenting classes is potentially very useful to parents, the parents at the classes the researcher attended were not always receptive to the information. Many of the parents at the classes were so focused on their own emotional and practical needs that they could not attend to their children's needs or even distinguish between their own needs and their children's needs. This was vividly demonstrated by small-group discussions at one of the parenting classes. The instructor had the class divide into groups of six to eight parents, and asked the parents to go around the group, each parent in turn saying a sentence about their children. For example, "My son is reluctant to play with his friends these days," or "My daughter was having trouble at school but is doing better now." None of the parents in the two small groups the researcher observed were able to comply with the instruction. Instead, they talked about themselves or their ex-spouses, often swapping "horror stories" and advice with their classmates. It may be that parents' psychological states early in the divorce process do not lend themselves to attending to the information about children's needs presented at the classes.
A few parents at both the classes observed by the researcher were disruptive. This disruptive behavior took the form of recounting lengthy stories about their personal situations and pressing the instructor for detailed advice. All the parents who behaved in this way were seeking to modify their parenting plans (although not all the modifiers were disruptive). The instructors were skilled at redirecting these individuals in a respectful and helpful way. Nevertheless, these interactions used considerable amounts of class time and had a "chilling effect" on other parents who appeared to become less receptive to the abstracted information provided by the instructors as they heard the disruptive parents' first-hand accounts of the difficulties of post-divorce parenting. Thus, it would be preferable if newly divorcing parents and parents seeking parenting plan modifications attended separate classes.
ii. Instructors
The training and experience of parenting class instructors varies from county to county. Statewide, some instructors are certified through a program offered by Washington State University. Both the instructors observed by the researcher were excellent. One of the instructors shared the participants' evaluations of the class with the researcher; they were highly positive. Judges, court commissioners, and courthouse personnel uniformly report that participants provide positive evaluations of parenting classes and instructors.
iii. Benefits of Parenting Classes
Most key informants had an extremely positive view of parenting classes and judged the classes to be very useful, both to participants and to the civil justice system. Many key informants felt the classes encouraged parents to focus their attention on their children, increased parents' awareness of the adverse impacts of parental conflict on children, and promoted faster, less hostile settlements.
"Oh they're so important. People are much better prepared when they've taken the class. It just makes things easier." --Judge
"They're very useful. They reduce conflict and get parents thinking about their children." --Judge
They're very worthwhile. Some parents figure things out after attending a class and can reach an agreement." --Mediator
"I strongly support parenting seminars. People don't want to go, but it really opens their eyes to the impact they're having on their kids." --Attorney
A minority of key informants were more qualified in their support for parenting classes. They felt that classes were of greatest use to parents who were positively disposed toward them in the first place. Some of these key informants suggested that people who had to be forced to go generally do not benefit from attending the class, and that parents involved in the most conflicted cases also receive little benefit.
"Parents who are receptive find them useful. But ordering people to go is not helpful." --Psychologist
"They work well for the people who don't really need them." --Attorney
Finally, a couple of key informants were completely opposed to parenting classes, pointing to the lack of high-quality research demonstrating clear benefits of attending a class.
"The courts should stop wasting people's time. There's no research to show they help." --Psychologist
iv. Domestic Violence
Key informants who work with domestic violence survivors are strongly opposed to requiring their clients to attend parenting classes. These key informants point out that lapses in security can result in abusers attending the same class as their victims. This creates a very dangerous situation for the victim. At the very least the victim is likely to be extremely frightened during the class. After the class the victim is especially vulnerable; she may be followed to her car or even to her home or secure temporary accommodation. In addition, key informants who work with domestic violence survivors report that parenting class staff sometimes accidentally reveal information about victims and their whereabouts to abusers.
County courthouse personnel who provide parenting classes report that they take every precaution necessary to minimize the dangers to domestic violence survivors, including not publicizing the location of the classes and having sheriff's deputies present at the classes. Despite these precautions, focus group participants who were domestic violence survivors reported that they had encountered their abusers at parenting classes (see Chapter 1, What Parents Say).
Key informants who work with domestic violence survivors raise other concerns about parenting classes. They point out that one parent can use a requirement that parents must attend a parenting class to stall the divorce process and harass the other parent. Several court commissioners and judges had handled cases where this had actually happened--one parent had repeatedly failed to attend a required parenting class thereby increasing the other parent's wait for a final parenting plan and decree of dissolution.
Finally, key informants who work with domestic violence survivors question whether much of the information presented at parenting classes is really helpful or relevant to domestic violence survivors. For some domestic violence survivors the threat posed by their abuser is so severe that the goal of a cooperative coparenting relationship after divorce is neither realistic nor desirable. Similarly, domestic violence survivors' children may have very different needs and reactions to the divorce than other children. Finally, domestic violence survivors' legal situations are also likely to be more complex than those of other parents. In the parenting classes the researcher attended, the special needs of domestic violence survivors were not addressed; there was not enough time. The handout materials did contain information about local resources for domestic violence survivors.
v. Cost of Parenting Classes
Parenting classes are costly, both to the county courts and to parents.
The costs to the courts include:
- Instructors' time spent in preparation and presenting
- Costs of handouts provided to class participants
- Staff time for scheduling the classes and monitoring attendance of parents who are ordered to attend by the court
- Adequate security
A number of courts do not offer parenting classes because of these costs.
Costs to the parents include:
- A fee which may be reduced or waived for low income parents
- Time away from work
- Travel and parking
- Childcare
For many parents, especially, but not only, domestic violence survivors, these costs are onerous. One judge in a rural county reported that she was strongly opposed to mandatory parenting classes because the costs would be burdensome to many parents living in the county.
- Mediation
Eighty (80) percent of first parenting plans and 71 percent of modified plans specify mediation for dispute resolution. In addition, many counties require divorcing parents to mediate any disputes about the parenting plan before going to trial. Thus, mediation has become the primary means of dispute resolution in dissolutions of marriage with children.
Despite the widespread use of mediation, it is quite unpopular with parents. Many parents know very little about the goals and principles of mediation, and regard it as expensive, time-consuming, unlikely to succeed, and inferior to litigation (see Chapter 1, What Parents Say).
i. Attitudes Toward Mediation
The key informants interviewed for this research held a wide variety of opinions about mediation. There were many staunch advocates of mediation and a few outright opponents of mediation. Most key informants offered qualified support for mediation, and most specified circumstances under which they felt mediation was either inappropriate or unlikely to succeed.
The proponents of mediation generally argued that mediation reduced conflict between parents and was faster and less expensive than litigation.
"I'm a big fan of mediation. It can be so helpful. It's quicker, cheaper, and it keeps the relationships alive." --Court Commissioner
However, critics of mediation suggested that the benefits were sometimes overstated. Some attorneys suggested that long and complex mediations could be as costly as litigation.
"Mediation is getting more and more expensive--and it doesn't always work. Mediators have to know when to call it quits." --Attorney
Other key informants were concerned that mediation was being pushed as a way for county courthouses to reduce costs without adequate oversight to ensure that inappropriate cases were not sent to mediation.
"There is a temptation to dump cases into mediation that should be in court."
--Court Commissioner
Other key informants, including some mediators, expressed concern that mediators were often so focused on getting a solution that important legal principles were brushed aside.
"I'm in favor of mediation. But I worry that people don't have the proper representation. They don't know their legal rights." --Attorney
"I saw a case, not long ago, where the mediator had come up with a plan. It was outrageous. I refused to sign it. The kids were being jerked all over the place."
--Court Commissioner
"People should never sign those papers, agree to a plan, in the mediator's office. Even if the mediator is an attorney. There's just too much ethical uncertainty there. They need to get their own advice." --Mediator
Many key informants argued that certain cases are simply not appropriate for mediation, for example, when there is too little common ground between the parents to form the basis for a negotiated agreement. Judges were especially likely to believe that these cases should go to trial and that unsuccessful mediation might backfire and increase conflict between the parties.
"In 70 percent of my cases there is no possibility of agreement--one person is too dysfunctional" --G.A.L.
"A judge is elected and so has to reflect community values to some extent. I think that's important in deciding the toughest cases." --Judge
ii. Domestic Violence
The greatest controversy with respect to mediation is how cases involving domestic violence should be handled. Some mediators claim that all cases, including those involving domestic violence, can be mediated.
"It's a good idea. With a competent mediator anyone can mediate. Even the most violent people are amenable to mediation. The alternative is to leave it to a judge." --GAL and Mediator.
"Yes, I think you can mediate even if there's a history of domestic violence. Of course, you can never mediate the violence--you never do that. But other issues." --Mediator
"For some of these women it's the only way they're ever going to get back any control over their lives. They need to stop being victims and start participating in the solution." --Mediator
But most key informants rejected this view and argued that mediation was never appropriate for cases involving domestic violence. Key informants who work with domestic violence survivors argued that mediators who advocated mediation for cases involving domestic violence misunderstood the nature of domestic violence and were too easily hoodwinked by abusers.
"A lot of the victims don't come across well--they're scared for a good reason but to an outsider they seem paranoid, irrational, and unreasonable. After being terrorized for years they've often got lots of emotional and psychological problems. The abusers, well they're smart, they dress well, they talk well. They seem like such nice men. They're smooth. So they can manipulate things. Too many mediators and judges just aren't tuned into this stuff." -Facilitator
Most key informants pointed to obvious safety concerns for victims of domestic violence who, even if they were not in the same room as their abuser, run the risk of encountering him at the place of mediation or of being followed after the mediation. Because of these safety concerns, most counties that require mediation of parenting plans explicitly exempt domestic violence cases from the requirement. These policies are not always followed, however. Several women in this study's focus groups who self identified as domestic violence survivors reported that they had been "pushed into" mediation against their wishes.
Many key informants cited an additional reason for opposing mediation in cases involving domestic violence--the power imbalance between parties. And many key informants pointed out that significant power imbalances are present even when there is no domestic violence. These imbalances can result in one party agreeing to an arrangement that is not in his or her own best interest or favors the other party. These key informants speculated that mediation when there is a significant power imbalance between the parties can lead parties to make inappropriate trades--for example, women may be persuaded to drop domestic violence charges in exchange for the husband agreeing not to seek to be the primary residential parent. Several parents who participated in the focus groups reported they had made these kinds of inappropriate trades (see Chapter 1, What Parents Say).
"I think it's a good idea--for some cases. But there are a lot of cases when mediation is inappropriate. Domestic violence--obviously. The risk of intimidation is too high. But other cases, too. It's not a level playing field out there. The power imbalances are often too big to mediate." --Judge
"Women are trained by society to be agreeable, so they don't stand up for themselves, they don't play hard ball. Often they'll trade away anything to keep the kids." --Attorney
iii. Who Are the Mediators?
Many key informants expressed concern about the background, training, and experience of mediators. As noted earlier, key informants who worked with domestic violence survivors were especially likely to raise these concerns. Similarly, attorneys, judges, and court commissioners often expressed the view that mediators needed more legal background.
In contrast many mediators stressed their depth of experience, training, and connection to national organizations that certify mediators and establish standards of practice. One mediator remarked:
"If only lawyers were allowed to do this work, then there'd be no one doing it."
--Mediator
Mediators come from many backgrounds. Some are attorneys but more have backgrounds in psychology, counseling, or social work. Some mediators work in private practice, some work for the courts in family court services, and some are volunteers at nonprofit agencies such as dispute resolution centers.
Many mediators expressed frustration with what they perceived as widespread ignorance about mediation and alternative forms of dispute resolution among both parents and members of the legal professions.
iv. Arbitration
Arbitration is much less widely used than mediation. Only one percent of parenting plans designate arbitration for dispute resolution (see What the Records Show). Most key informants felt this was appropriate, expressing the view that if a single individual was going to decide disputes for families it ought to be a judge. Some mediators and attorneys felt that arbitration could be useful in certain cases, typically cases where there was general agreement but a single point of contention remained.
"Sometimes people just need to be told what to do about that one last thing."
--Attorney
g. Changing the Parenting Plan
The key informants had little to say about parents' experiences living with their parenting plans. Typically, key informants only worked with parents when they were formulating their first plan, if one parent refused to follow the plan, or if one or both parents wished to modify their parenting plan.
i. Following the Parenting Plan
Most key informants expressed the view that most parents do not follow their parenting plans closely. Indeed, many key informants viewed the ability of parents to use a plan as a "back-up" and "get on with their lives" as a measure of the success of a plan and as a strength of the Parenting Act.
However, key informants pointed out that flexibility and informality sometimes generate problems for parents.
"People play with their plans. But when something goes wrong there's a mess." --Activist
"Even agreeing to deviate [from the plan] won't necessarily work. People should get it in writing while they agree." --Activist
Many of the parents who participated in the focus groups were very concerned by the lack of enforcement and monitoring mechanisms for parenting plans (see What Parents Say). Many parents were frustrated that their only recourse faced with an ex-spouse who refused to follow the plan was to return to court. Many key informants agreed with this sentiment, and argued that the courts should take persistently violating the parenting plan, harassing the other spouse, and trying to undermine the parenting plan far more seriously. Key informants were especially concerned about the lack of monitoring of specific conditions or restrictions imposed on some parents, such as remaining drug-free or keeping children out of the presence of certain named individuals.
"We need an enforcement process. Too often the visiting parent sees it as optional. And we need to be as serious about [enforcing] visitation as we are about child support. And we need a monitoring process for issues with drug and alcohol abuse." --Judge
"There is no recourse for a parent when the other parent is really causing problems. The court just dismisses cases where the kids are being eaten alive. Women see their children being destroyed and they have no recourse. It's just not clear what the power of the court is with regard to contempt." --Attorney
Key informants who worked with domestic violence survivors were particularly likely to stress the need for monitoring and enforcement of parenting plan provisions.
"Often the men get sent to treatment programs. They go the first couple of times and then they're not seen any more. And no one checks up on them. There's no follow through." --Facilitator
ii. Modifications
Many parents, who participated in the focus groups, said that it was too difficult and costly to change their plans . They said they would like a simplified way to adjust their plans. A few of the key informants agreed with this.
"People's plans get out of line with reality. So they need to be able to get back in here and tidy things up." --Facilitator
But overwhelmingly, the key informants believed that changing parenting plans ought to be quite difficult, and that the present system was adequate. The key informants felt it was important to discourage frivolous or routine changes to plans, and that making modifications difficult provided greater stability for children.
"A well thought-out plan thinks ahead and makes some provision for likely changes in circumstances." --Activist
"That's what the dispute resolution process is for--if the circumstances change and they can't agree how to follow the plan. They shouldn't be running back to court." --Attorney
iii. Relocation
What should happen when the primary residential parent wants to relocate some distance away, taking the child with them, is a highly contentious issue. Nearly all the key informants were frustrated by what they perceived as a lack of clear guidance in the current legal situation and were hopeful that either the courts or the legislature would provide some leadership in the near future.
Most key informants believe that when a primary residential parent wants to relocate, and the other parent is opposed to the relocation, there should be a court hearing. However, the key informants were divided about what the court should be seeking to ascertain and which parent should bear the burden of proof. Most of the key informants felt that the non-relocating, nonprimary residential parent should have to demonstrate that the move would be detrimental to the best interest of the child. These key informants tended to stress the importance of maintaining the primary residential parent - child unit, and the potential benefits of relocation for the child and the primary residential parent. In contrast, a significant minority of key informants felt that the burden should be on the relocating primary residential parent to show that the move is in the best interest of the child. These key informants tended to stress the potential detriment to the child of less frequent contact with the nonprimary residential parent.
At the beginning of this report, the research questions that motivated this analysis of parenting plans were outlined. This section summarizes the answers to those questions.
This report has presented information and opinions gathered from professionals who work with the Parenting Act on a day-to-day basis. Collectively, these professionals have a vast experience and expertise with the Parenting Act. Individually they have provided information and opinions from widely differing perspectives.
The bulk of this report is taken up with the problems of the Parenting Act. That should not surprise us--it is often far easier to say what is wrong with a situation than it is to say what is right about it. But this report should not be read as a litany of failures or as a denunciation of the Parenting Act. Without exception, the professionals interviewed for this study viewed the Parenting Act as having many strengths. The key informants in this study--even the few who were actively seeking to replace the Parenting Act with new legislation--supported the policy goals and ideas underpinning the Parenting Act. Without exception, the key informants regarded the Parenting Act as good public policy.
The problems key informants pointed to were of two types: problems that were larger than the Parenting Act and problems with the implementation of the Parenting Act.
The problems that are larger than the Parenting Act have to do with the complex set of social problems the Parenting Act is designed to address. The Parenting Act offers a framework for how parents should manage parenting when their marriage fails. The Act is tailored for parents of good faith, who endeavor honestly and fairly to work together placing their child's interests ahead of their own. By and large the Parenting Act meets the needs of these parents and serves them well. But there is a substantial minority of parents who are unable to cooperate, or who have multiple other complex problems that affect their parenting and ability to coparent. These parents are not well served by the Parenting Act. But we must ask ourselves whether any legislative framework would work well for these parents or would work any better than the Parenting Act. And before scrapping the Parenting Act we must also ask whether its replacement would work as well for the majority of parents as the current Act.
Some of the larger problems with the Parenting Act reflect the broader social environment in which it is located. The Parenting Act provides for post-divorce parenting in a time of extraordinary social change. The social meanings of motherhood and fatherhood are rapidly changing, and few parents adhere to traditional roles with mom as the caretaker and dad as the breadwinner. This has introduced a new complexity into designing post-divorce arrangements.
Finally, the Parenting Act operates in a changing legal environment. Legal expenses are increasing generally, not just in family law. There are fewer free or low costs legal resources for parents to call upon, and more parents want to represent themselves. The Parenting Act should not be held responsible for the challenges posed by these larger trends.
Problems that derive from the implementation of the Parenting Act are perhaps simpler. They are certainly more amenable to public policy interventions. Parents can be provided with more information. Parenting plan forms can be redesigned and simplified. Standards of practice for evaluators, guardians ad litem, and mediators can be established and maintained. Protections for domestic violence survivors can be simplified and strengthened. Parenting classes can be improved. Procedures for monitoring and enforcing parenting plans can be developed. Procedures for handling parental relocations can be clarified. The challenge is to develop interventions that are effective and affordable and to make a widely supported public policy initiative, the Parenting Act, work even better.
The following individuals generously gave their time and expertise to participate in the Parenting Plan Study. They did not receive any compensation.
Douglas P. Becker, Attorney at Law
King County
G. Andrew H. Benjamin, J.D., Ph.D., Affiliate Professor of Law and Clinical Professor of
Medicine, Director, Parenting Evaluation Training Program
University of Washington
Commissioner Kenneth L. Cowsert
Snohomish County Superior Court
John E. Dunne, M.D., F.A.P.A., Child and Adolescent Psychiatry
Southlake Professional Group
Clinical Faculty, University of Washington
Janet M. Helson, Attorney at Law
Columbia Legal Services
David L. Hodges, M.A., C.M.F.T. , Social Services Supervisor
Family Court Services
King County Superior Court
Judge Vicki L. Hogan
Pierce County Superior Court
Julie E. E. Jacobson, A.C.S.W., Director, Divorce Lifeline
Lutheran Social Services of Washington and Idaho
Cindy M. Leeder, Domestic Relations Facilitator
Pierce County Superior Court
Ronald K. McAdams,, Attorney at Law
Walla Walla County
Angela M. Rinaldo, Contract Guardian Ad Litem.
Thurston County
Lisa D. Scott, Attorney at Law
King County
Judge T.W. Small
Superior Court of Chelan and Douglas Counties
