The most difficult aspect of a custody battle, in my opinion, is that typically both parents have an established pattern of dysfunctional behaviors that limit positive family interaction. The conflict, the drama, and the fighting are rarely about the true needs of the children. Too often the emotional needs of both parents are enmeshed in the battle despite the needs of the children. The complex legal issues presented typically exist as a result of the misconduct, or mental impairments of one or both parents, whose intractable contradictory positions operate in direct opposition to the best interests of their children which makes a recommendation as to which living arrangement with these parents is in the child’s "best interest" an almost impossible task.

The "best interests of the child" standard exacerbates matters because it is ambiguous and by its nature inevitably skewed by the evaluator or judges social, economic, cultural, ethnic and religious values and biases.

Every parenting plan should take the following factors into consideration:

For a parenting plan to serve the best interests of the child, it must taken into consideration the dynamic nature of the individual child and her growth process. No one plan can meet the needs of every 7 year old, or address her social and activity needs at the age 12. Parents needs and goals change as well. Despite the legal myth that a plan established when a child is 3 will be just as effective in serving the "best interests of the child" at 11, parents who are educated about the developmental stages of children and attune to the needs of their children are more likely to use this information to reach compromises as parenting disputes arise. Furthermore, parents of children who experience the grief and the insecurity caused by the trauma of divorce need to consider

When the developmental stages of children are taken into consideration, parents have a neutral foundation upon which they can begin developing a child centered plan that serves the best interest of the child. It is in the "best interests of the child" to develop a plan that provides them consistent access and residential time with the parent having the capacity to meet their developmental needs and nurture them at each stage of development. To assess a parents capacity to meet the child’s needs, you must first understand the stages of development and the impact the loss of family cohesion can have on their progress.

Infants’ primary developmental task is to bond to their primary caregivers. Bonding is a hormonal process that starts at birth. The infant’s attachment to his or her primary caregivers is imperative to the child’s physical and emotional survival. Physiologically their attachment is motivated by their inability to care for themselves and vulnerability to predators. Emotionally, through touch and parental responsiveness, they learn to trust, and, consequently, attach or bond to their caregivers.

Secure attachments grow out of consistent parental responsiveness to the needs of the child. Insecure attachments develop when parent’s are insensitive, unresponsive, or not attuned to the needs of their children. Neglecting the child or responding inappropriately to their needs disrupts the development of a secure bond, and, consequently, their ability to trust. Infants whose primary care giver is deficient in nurturing characteristics, narcissistic by nature, or addicted to substances, can suffer attachment related mental health issues or fail to thrive.

Parenting Plans for infants should be designed to maximize the infants’ exposure to care givers capable of meeting the child’s developmental needs and address the fact that he or she suffer significant emotional distress when separated from their primary caretakers. They can experience a profound sense of loss and sadness, and consequently, regress developmentally. Because the infant has no concept of time , he does not understand that separation is for a limited duration. Because her communication and cognitive abilities are limited, she does not understand the reason for the absence of a primary caregiver.

Toddlers (24 to 36 months) begin to venture into their environment and need opportunities to explore their new independence with the security of having a significant caregiver nearby. The toddler strives for autonomy while seeking a safe refuge in their parents, when overwhelmed or frightened. The toddler internalizes the parental relationship which enhances their ability to soothe themselves, empathize with others, and their self esteem. If the child has a secure attachment to both parents it lessens his or her anxiety when one or the other is absent; however, they tend to miss the other parent after a short period of time.

Toddlers may do better in a primary residential household where they are familiar and confident, so that they are not afraid to venture out and experience different aspects of their world. However, the frequency of contact with the other parent is essential because toddlers can feel a strong sense of loss with the diminished contact of a parent. Long separations can make it difficult for the toddler to readily reattach upon re-union with the absent parent potentially impairing the creation of healthy relationships in later developmental stages. How the toddler is responding to the challenges of being separated from the other parent is extremely valuable information for parents to consider in developing a parenting plan.

Preschool age children continues to strive towards individualism and independence. She tends to rely upon rituals surrounding activities, such as a necessary process in preparing for bed before going to sleep, and can become quite upset when these rituals are not performed. The ritual provides structure and environmental predictability, which helps her to feel safe, and secure. There is often an increasing identification with the same-sex parent as gender classification becomes an important developmental milestone. Most preschoolers have the memory capacity to hold the absent parent in mind as a source of comfort when absent. Magical thinking, a common characteristic of this stage of development, often makes the preschooler’s adjustment to separation and divorce to some extent dependent upon the degree to which he believes he is to blame for the parental separation. This same magical thinking makes the child’s concerns about having their basic needs met by their parents much more extreme. Many children of this age worry about simple things, like food, ("Who will feed me?"), residential placement ("Where will I live?"), and abandonment ("Will you leave me the way that Mommy left me?") . These concerns need to be openly discussed and assurance given to reduce their fear and worry. Parents need be more cautious about expressing their fears and disappointments in the child’s presence because they are more likely to take on these fears in a more intense way.

Children with secure attachments with both parents are usually emotionally ready for up to two consecutive over nights on alternate weekends with a weekly midweek visit, or over night. As the child gains the confidence of approaches the age of five, the weekend visits may be expanded to up to three over nights. Phasing in the new schedule slowly as they approach five is recommended for children who do not tolerate transitions well.

School age children range between 6 to 12 years of age. In early grade school most children begin to change their social focus from a parent centered to a friend focus. Children develop peer and community friendships through involvement in social and recreational activities. They begin to understand concepts of morality and moral judgment, through playing games, understanding the rules and abiding by them in social interactions. Children at this age start to develop empathy towards others, and a sense of self in relation to their competency and mastery of goals and skills. The stress and anxiety caused by the child’s feelings of loss and security can preoccupy them, and make it more difficult for them to master age appropriate academic and social competencies. Children who do not have the time or opportunity to spend with peers and other adults may be delayed in mastering these skills.

In the later years of elementary school, a child’s interests turn towards mastering skills in a variety of social, academic, and physical areas. They become more aware of their strengths and weaknesses. "They tend to be competitive, rule bound and focused on fitting into their peer group social order."(Gould, J.W., 1998) They are very conscious of each parent’s reactions to the break up. "Their feelings may vary from understanding each parent’s point of view to blaming one or both parents for the breakup of the family." (Gould, J.W., 1998) Children in this age group may blame themselves or shrink from social interaction because of a belief that their friends view them differently. They may experience oppositional feelings towards circumstances and people that make them question how they should react. For example, they may feel excited about having their own room in mother’s new home, but afraid of being alone for the first time. They may feel happy that their Dad is taking them to the movies, but disappointed that he is bringing his new female friend with them. Parents need to be attuned to changes in behavior that indicate their child may not be adjusting well to the separation and focus on addressing the reasons she expresses as the cause of her difficulty.

Teenagers frequently oscillate between a desire for autonomy and freedom from parental and societal authority, and a need for the security and safety parental rules and structure provide. Their peer group identification and associations take precedence. At this stage boys & girls often seek absent same sex parents in an effort to understand their emerging sexuality, and gender characteristics. It is in this developmental phase divorced parents need to allow their children the flexibility they need to meet their social, academic, and personal goals, which frequently means spending less time with them which is normal.

When problems arise in parenting schedules involving teens or they exhibit behaviors that put them at risk, family therapeutic mediation is a helpful tool , because they are often reluctant to participate in therapy. Mediation in this context facilitates respectful discussion of difficult issues in and a collaborative approach to the solving the problems presented. The most beneficial aspect of therapeutic mediation in this context is the collaboration between the parent and child that takes place which can transform their relationship.

Parents, who cannot form a collaborative parental alliance or are emotionally impaired, may use the children as a means to retaliate or continue to control the other parent to disrupt the residential time with the other parent. This type of negative influence can encourage the child to refuse to follow the residential schedule. The age of the child makes a difference. Infants and toddlers are typically unaware of the parental attempts to manipulate their feelings towards the other parent, and will usually resume his or her normal behavior towards the other parent in the absence of the other. Consequently, if a child of this age is consistently refusing to spend residential time with the other parent, and routinely does not emotionally settle once in the care of that parent, the underlying causes of the child’s distress and resistance should be explored. Play therapy is the most common tools therapists use to discover the source of a young child’s distress or the reason for the child’s inability to adapt to dual households.

Children between the ages of 6 to 8 are more susceptible to manipulation, and more likely to take sides when intense loyalty is demanded from one or the other parent. Their susceptibility tends to drop between the ages of 9 to 11 years of age period as children by choice form alliances with one parent or both based on their perceptions as to who is most reliable in meeting their needs and support their desired goals. If resistance occurs at this stage of development, parents should explore how the parenting plan is impacting the child’s desire to master certain skills, compete in chosen areas, and interact with their peer group. Frequently, minor adjustments and accommodations, can be made to the plan to bring about the child’s desired cooperation. If it is the result of undue parental influence, therapeutic intervention can help the child sort thru the conflicting parental demand, and develop coping skills which will allow him or her more autonomy in his relationship with both parents.

Parents suffering from clinically significant behavioral or psychological syndromes may place themselves and those around them, at risk of suffering death, pain, disability, or an important loss of freedom. If their illness is untreated and unstable they present a threat to their children and lack the capacity to parent. Stress and anxiety are two conditions that may exacerbate a previous psychological disturbance and influence parenting. Such parental disruptions may take the form of neglectful parenting, erratic behavior, minimal investment in parental responsibilities, or potentially dangerous behavior. When adult psychological disturbance influence parenting, children, are at risk for a variety of behavioral problems

Psychological problems, including abuse and addiction, can prevent them from adequately providing for the physical, emotional, and developmental needs of their children. If they do, they should be appropriately addressed in the parenting plan. Therapeutic and legal safeguards should be established that provide motivation for the incapacitated parent to seek treatment and help, detection of behaviors that pose a risk to the child, and speedy protections for the child if the parent relapses. If the psychological disturbance or problems does not affect parenting, then they should be addressed only to the extent necessary to detect when they do, and prescribe a plan for protecting the children.

For many years mental health professionals have expressed the need to reduce conflict to protect the emotional health of children whose parents are separating and divorced, because of the significant correlation between parental conflict and increased antisocial and dysfunctional behavior among children and adolescents in both married and divorced parents. Children in low conflict homes tend to better adjusted than those in high-conflict families with both parents. Mothers in high conflict relationships may be so preoccupied with the conflict, that they are not attuned to the needs of their children and neglect to nurture them in significant ways. Many fathers withdraw from contact with their children in high conflict post divorce relationships, and their absence adding to the factors that place these children at risk of being susceptible to emotional instability. Parents in these type of marriages may be tempted to continue their conflict after the divorce is completed. Luckily, Most parents, do not. Unless one or more of the parents suffer from psychological impairments or addictions, the habitual fighting present in their marriage dissipates after separation and they are able to form a parental alliance.

In those situations where the conflict does not end. Jonathan W. Gould, PhD in his book, Conducting Scientifically Crafted Child Custody Evaluations (1998), discusses a conceptual framework investigated by Garrity and Bariss (1994) for developing a parenting plans based upon the level of conflict, the parenting style, and the developmental and personal temperament of the child.

1. Level of Conflict


• Minimal Conflict - Minimal conflict is characterized by the parents’ ability to cooperate on issues related to their children. These couples are able to show self-restraint and self-control, and to find effective means to resolve conflict.
• Mild Conflict - Mild conflict is characterized by occasional events of acrimony. Most of the time, the parents are able to co parent. They may argue or berate each other in front of the children only occasionally. These couples only periodically disagree, and certain issues are often the trigger for their conflict. However, overall, their conflict is contained, seldom exposed, and infrequently involves the children.
• Moderate Conflict - Moderate conflict involves individuals "who function effectively as parents on one level. Individually, they promote positive ideals for their children, but when they attempt to work together; power struggles and almost-constant conflict ensue" (Garrity & Baris, 1994, p. 47). Children from moderate conflict are frequently exposed to their parents’ arguing, verbal abuse, insults, and threats of litigation.
  
  This is the first level of the Garrity and Baris model in which it is predicted that the level and frequency of conflict do not significantly diminish over time. For some parents engaged in moderate conflict, the acrimony may intensify over time as each parent becomes increasingly convinced of the "rightness" of his or her parenting and the "wrongness" of the other parent’s parenting.
• Moderately Severe Conflict - Moderately severe conflicted parents "subsume all high conflict situations short of those that involve direct endangerment to a child through physical and sexual abuse" (Garrity & Baris, 1994, p. 48). This is a very violent environment in which children live. Often, parents threaten each other, physically and verbally abuse each other, and have no concern for display of such behaviors in front of their children.
  
  It is not uncommon for parents to actively attempt to negatively influence their children against the other parent. Parents engaged in moderately severe conflict may attempt to alienate children from the other parent, demand loyalty to one parent at the exclusion of another, and place children in the middle of the post marital conflict with little regard for their children’s welfare. For these parents, all factors concerning the children are filtered through one parent’s personalized (pathologized) view of his or her parenting as being good for the children and the other parent’s parenting as being bad for the children. For a more extensive exploration of these issues, see the discussion about Parental Alienation Syndrome in Chapter 8.
• Severe Conflict - Severely conflicted parents represent an immediate and direct threat to children’s emotional and physical safety. Children in these families are at exceedingly high risk of damage from parental physical or sexual abuse, drug or alcohol abuse, and/or severe psychological pathology. Safeguards are essential to protect such children. (Garrity & Baris, 1994, p. 49) (Gould, J.W., pgs. 259 to 261, 1998)


2. Parenting Style


• Cooperative Parenting - Cooperative co-parenting was defined as parents talking frequently with each other about their children; attempting to coordinate two sets of household rules; and each parents supporting ongoing, continuous contact between the children and the other parent (Maccoby & Mnookin, 1992, p.235). There was considerable stability in cooperative parenting over time. Parents who were characterized as cooperative 18 months after separation (T2) tended to display cooperative parenting 3 1/2 years post separation (T3). In their study, 26%of their sample displayed cooperative parenting at T2 and 29% at T3. Typically, cooperative parents tended to display high communication and low discord.
• Conflicted Co-parenting - Conflicted co-parenting was defined as parents who often argued. They tended to perceive their ex-spouses as attempting to upset them when they disagreed. Conflicted parents reported their ex=spouses to have refused-or threatened to refuse-to allow visitation. Ex-spouses were viewed as undermining their parenting as well as creating logistical problems in managing visits with the children. Maccoby and Mnookin (1992) found that the percentage of couples reporting conflicted co-parenting decreased from 34% at T2 to 26% at T3.
• Disengaged Co-parenting - Disengaged co-parenting was defined as parents who avoided contact with each other. This resulted in parallel parenting in which each household carried its own set of rules and responsibilities. There was little, if any, coordination between parents regarding the establishment of consistent rules across households. Eighteen months after separation (T2), 29% of the sample displayed disengaged parenting. Three-and-a-half years post separation, that figure rose to 41%. It appears that a significant percentage of couples reporting conflicted co-parenting at T2 resolved their conflicts by avoiding the other parent at T3. That is, some high-conflict parents resolved their disputes by disengaging from each other and establishing separate, independent households. (Gould, J.W. pgs 266-267)


This information can be very useful to legal professionals in designing a viable parenting plan in the most difficult divorce cases which takes into considerations the severity of the conflict and the co-parenting style of the parties to fashion a plan for the particulars of that specific family.


3. Conclusion


• "In developing parenting plans, there are no rules about what kind of time distribution is appropriate. The acid test is what works best for each child."
• What is best is difficult to assess, but careful consideration of the factors above increase the likelihood of a more likely than not viable parenting arrangement that protects the child’s interests.

(Paragraphs 4.1, 4.2, 4.3) Except where the court has found that a limitation under RCW 26.09.191 is warranted which allows one parent sole decision making authority, a parenting plan needs to provide decision-making authority to "one or both parties regarding the children’s education, health care and religious upbringing." RCW 26.09.184(5) In many parenting plans the parties want to include more than just education, non-emergency health care and religious upbringing in this category. Other issues under this section include child care, extracurricular activity expenses, body piercing, permission to enter the military before age 18, marriage before age 18 and driver’s license.

RCW 26.09.191 identifies restrictions that are required if certain parenting deficits exist:

1. The permanent parenting plan shall not require mutual decision-making or designation of a dispute resolution process other than court action if it is found that a parent has engaged in any of the following conduct:


1. Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions;


2. physical, sexual, or a pattern of emotional abuse of a child; or


3. a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm.


1. The parent's residential time with the child shall be limited if it is found that the parent has engaged in any of the following conduct:


1. Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions;


2. physical, sexual, or a pattern of emotional abuse of a child;


3. a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm; or


4. the parent has been convicted as an adult of a sex offense under: (see full text of 26.09.191 for detailed description of offenses and requirements.)


3. A parent's involvement or conduct may have an adverse effect on the child's best interests, and the court may preclude or limit any provisions of the parenting plan, if any of the following factors exist:


1. A parent's neglect or substantial nonperformance of parenting functions;


2. A long-term emotional or physical impairment which interferes with the parent's performance of parenting functions as defined in RCW 26.09.004;


3. A long-term impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting functions;


4. The absence or substantial impairment of emotional ties between the parent and the child;


5. The abusive use of conflict by the parent which creates the danger of serious damage to the child's psychological development;


6. without good cause; or


7. Such other factors or conduct as the court expressly finds adverse to the best interests of the child.


4. In cases involving allegations of limiting factors under subsection (2)(a)(ii) and (iii) of this section, both parties shall be screened to determine the appropriateness of a comprehensive assessment regarding the impact of the limiting factor on the child and the parties.


5. In entering a permanent parenting plan, the court shall not draw any presumptions from the provisions of the temporary parenting plan.


6. In determining whether any of the conduct described in this section has occurred, the court shall apply the civil rules of evidence, proof, and procedure.


7. For the purposes of this section, a parent's child means that parent's natural child, adopted child, or stepchild.

A parent-child relationship can be created between a child and a man in a number of different ways in this State (RCW 26.26.101):

The Uniform Parentage Act (RCW 26.26) which governs all determinations of parentage in Washington was enacted in 2002. One of the major changes was to remove It and was effective June 13, 2002. A significant change in this act was to remove the child as a necessary party to a paternity case. The child interests were no longer represented by a guardian ad litem. The act also defined significant relationships between father and child in way that clarified the implied duties and responsibilities:

Are filed by person’s who are not the biological parent(s) of the child, but want to be the primary residential caregiver. RCW 26.10. Frequently, these cases are brought by persons who have all ready assume the role of providing a significant amount of care for the child, and have formed a strong emotional bond with him or her. They usually file to assure that they are given the legal right, along with the de-facto responsibility, of providing benefits for the child, enrolling him or her in school, and making major decisions for the child.

A review of the case law shows significant inconsistencies between judicial interpretation and the third party custody statue, which provides that custody will be based on "the best interests of the child." RCW 26.10.100. Yet, the judges have required more than that the "best interests of the child" be served in its findings and rulings in these type of cases.

The case law favors the rights of biological parents over others often, in my opinion, to the detriment of the bests interests of the child. The courts have rejected the "best interests of the child standard" , finding that it did not provide sufficient deference to the "fit" parent. Matter of Custody of Shields, 157 Wash. 2d 126, 144, 136 P. 3d 117 (2006). Consequently, it is only when biological parents are not involved in third party cases does the court apply the best interests standard. See In re Custody of Brown, 153 Wn. 2cd 646, 105 P. 3d 991 (2005).

A de facto or "psychological parent" is:

In addition, recognition of a de facto parent is "limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life." We thus hold that henceforth in Washington, a de facto parent stand in legal parity with an otherwise legal parent, whether biological, adoptive, or otherwise. As such, recognition of a person as a child’s de facto parent necessarily "authorizes a court to consider an award of parental rights and responsibilitiesbased on its determination of the best interest of the child." In re Parentage of L.B. 155 Wn. 2d 679, 122 P. 3d 161 (2005), cert. denied 126 S. Ct. 2021, 164 L. Ed 2d 806, p. 708.

Parenting Plans should be a map by which primary caregivers can provide for the physical, and emotional care, education, health, and moral guidance of the minor child. Whether it becomes a tool to guide and direct or a source of conflict frequently depends upon how it is drafted. It is essential that privileges and obligations are clear and concise, that the plan will function in a manor that does not overly burden either parent or the child, and that it is as flexible or as rigid as required to keep the parent’s focused upon raising the child rather than fighting amongst themselves.