CHECK THE BOX: Parent Most Willing To Share

An Argument for a Statewide, Uniform Application of Family Code Section 3040(a)(1)

by Enrique A. Monteagudo, J.D.

Did you know that every time a family court judge awards a child custody order to one parent, he or she must consider “which parent is most likely to allow the child frequent and continuing contact with the noncustodial parent?”  Chances are, unless you are family court judge or a Certified Family Law Specialist, your answer is no.

Looking closer at Family Code § 3040(a)(1)[1], where this law is codified, further insight can be gained.  First, the Legislature uses the words “shall” rather than “may” or “should”.  This means that the consideration is not optional, it is mandatory.

Next, one might notice that the Court is authorized to consider unspecified “other factors” that might be relevant.  This says a lot.  When a statute gives a broad authorization alongside an explicitly enumerated requirement, it generally means that the enumerated requirement is particularly important, and the Legislature does not want it overlooked.

Finally, the section refers back to the public policy behind the law.  Specifically, section 3040(a)(1) refers back to Family Code § 3020, which states: “The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share in the rights and responsibilities of child rearing in order to effect this policy…” Section 3020 also wisely includes safeguards against extreme situations such as neglect, abuse, etc.

One does not need to be a legal scholar to interpret § 3040(a)(1) or to understand its plain meaning.  The concept is clear: 1) it is California public policy that, in California, kids keep their parents even though the parents do not want to keep each other, and 2) the California courts are mandated to effectuate that policy where appropriate.

Although this law makes good sense (on many levels), it is only as good as its application.  Judges and attorneys know the law, but unfortunately, most parents entering the family court system do not know the law, especially those without legal counsel[2].  Since the Court must ultimately rely on the facts presented to it by the parties, this can become particularly problematic.

For example, parents typically enter the family court system with only common knowledge, and what they glean from observation.  Parents will often know basic terms such as “joint versus sole custody”, “visitation”, “child support”, “FCS report”, etc. -the sort of things that they may have seen on a court minute order form; but most often, they generally are not aware of the underlying policies that drive the decision making process.  In addition, few parents are aware of case law, much less its role in interpreting statutes.  Similarly, they are not likely to know the significance of state policy, nor its role in guiding the Court.  As a result, parents will often provide information to the Court that, while important from their perspective, is largely legally irrelevant.

To illustrate, a legal professional will readily recognize that the recent California Supreme Court case LaMusga[3] stands for, inter alia, the policy/statutory interpretation that “willingness to share” is so important, that 1) it outweighed custodial stability, and 2) it is almost always dispositive in appellate review.  However, an unrepresented litigant, and even an inexperienced attorney, may nonetheless provide the Court with information best characterized as “how bad the other parent was” or “how the other parent was a terrible spouse”, rather than something more useful and legally relevant like “how he/she will protect the child’s access to the other parent.”

This can, and often does, create a challenge because, if the parents do not know what policies are important, and what information the Court needs to know, it is less likely that parents, especially unrepresented parents, will provide it.  Moreover, if the relevant facts do not reach the judge, it becomes very difficult to properly apply the law.

Rest assured this article is not simply another passive observation on how things currently are.  This article is proactive in that it presents an opportunity to make things better in a real, tangible sense.  Specifically, this article proposes a way to efficiently motivate parents to both provide very relevant information to the Court, and, more importantly, to bring domestic litigation more inline with California public policy.

To begin with, if it were to become common knowledge among litigating parents that being the “parent most willing to share” is very important, and that the Court is mandated to consider this factor, it is very likely that litigating parents (i.e., parents who could not come to an agreement on their own) would then begin to structure their case in a way that demonstrates they are the “parent most willing to share”.  Nobody goes to court with the intent of losing, so naturally, the legal adversaries would have a clear incentive to compete in this new, constructive way.  This would be an improvement because the litigating parents would have a clear incentive to focus on showing why they are good, rather than how the other is awful.  Consider this analogy: if you have already two adversaries who want to win, rather than setting them in a destructive contest, like a fight, it would be better to choose a constructive contest, like a race to finish a useful project.  Then, at the end of the contest, nobody gets beat up; instead, two useful projects get done! 

Assuming that it would be beneficial for parents to know how important it is for a parent to have a “willingness to share”, the question then becomes, how to educate parents on the law, or how to make this state policy become common knowledge. 

Articles such as this, collaborative family law organizations, and attorneys with an interest in child advocacy reach some parents, but a large scale, uniform, and consistent approach would reach more.  In addition, cost is always a concern in providing widespread education such as this.  For example, it would be unrealistic to try educating all litigants on the law; the cost would prohibit it.

One efficient solution might be to change the local court rules to require judges to consistently identify which parent is the most willing to share, a fortiori, to do so in a highly visible way.  This would be good start, but its reach would still be limited.  A refinement to this idea would be to make a similar change to the statewide court rules.  Another equally workable solution, which is both cost effective and has broad application, would be to enact legislation, which similarly would require the Court to identify which parent is most willing to share.  In either case, a statewide requirement that Courts identify which parent they found to be parent most willing to share, in a highly-visible way, would both educate parents, and curb their litigation tactics to be more in harmony with public policy.

Implementation and standardization are also important concerns.  In order to identify the “parent most willing to share” in a highly-visible, consistent, and uniform manner, the proposed court rule or legislation should also require that a check box be added to the one form used in all family law cases –the court minute order form.  By using the check box, every court in every jurisdiction will indicate the parent most willing to share in the same, clear way.  As an added protection, the check box should also provide for situations where the parents are equally willing to share, or where it is not determinable. 

The check box’s simplicity, and visibility to the layperson, makes it an easy-to-implement and effective tool for the Court to effectuate state policy.  Furthermore, by using a check box, a very visible and unambiguous message will be sent to the parents.  Accordingly, when parents know that a very meaningful checkmark will be placed next to “Petitioner” or “Respondent” (or “neither” or “both”), there will be a strong incentive to reach compromising positions, where appropriate.  In short, if each litigant knows there is a benefit to having the checkmark next to his/her name, it would be incumbent upon him/her to at least appear to be willing to share the child, and as both parents realize this, their requests will become less and less distinguishable.

No additional work would be incurred for the Court because, as discussed above, the well-established law already requires the Court to consider “which parent is most willing to share.”  Therefore, if the Court must already consider the factor “which parent is most willing to share,” it obviously needs to first know which parent that is.  Hence, since the Court would simply be articulating its preexisting knowledge. 

Regarding cost, the only expense incurred might be the nominal costs of printing.  But, deferring any update to the court minute order forms until the next scheduled printing would mitigate this expense.

In conclusion, when the posturing in family court turns on which parent is most willing to share, the outcomes will be less drastic, and ultimately the child will be real winner.  This idea will not solve all the problems and heartache of the family court process, but it will be an improvement.  This will also assist in focusing the litigation on protecting the child’s right to have both parents rather than extraneous factors.