The phrase

“best interests of the child”

appears in no less than 10 current Washington state statutory provisions governing determinations from guardianship to termination to custody to adoption. See, e.g., Wash. Rev.Code § 26.09.240(6) (Supp.1996) (amended version of visitation statute enumerating eight factors courts may consider in evaluating a child’s best interests); § 26.09.002 (in cases of parental separation or divorce “best interests of the child are served by a parenting arrangement that best maintains a child’s emotional growth, health and stability, and physical care”; “best interest of the child is ordinarily served when the existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents or as required to protect the child from physical, mental, or emotional harm”); § 26.10.100 (“The court shall determine custody in accordance with the best interests of the child“). Indeed, the Washington state courts have invoked the standard on numerous occasions in applying these statutory provisions–just as if the phrase had quite specific and apparent meaning. See, e.g., In re McDole, 122 Wash.2d 604, 859 P.2d 1239 (1993) (upholding trial court “best interest” assessment in custody dispute); McDaniels v. Carlson, 108 Wash.2d 299, 310, 738 P.2d 254, 261 (1987) (elucidating “best interests” standard in paternity suit context). More broadly, a search of current state custody and visitation laws reveals fully 698 separate references to the “best interest of the child” standard, a number that, at a minimum, should give the Court some pause before it upholds a decision implying that those words, on their face, may be too boundless to pass muster under the Federal Constitution. Cited from Troxel v. Granville120 S.Ct. 2054U.S.Wash.,2000

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Does a Non-Custodial Parent HAVE to visit or parent their child?

No,  Louden v. Opin(1981) 118 Cal.App.3d 565, 173 Cal.Rptr. 447

What about if the other parent asked for visitation or legal custody?

If a non-custodial parent shares legal custody – can they be compelled to actually share it?  (This has to do with Family Law Code 3170 which says that if Custody or visitation is going to change – on the face of any pleading – you must meet in Conciliation Court.  If you don’t meet, is a Restraining Order limiting communications valid?)

Some thoughts and cases…

The Louden case  deals with visitation, not legal custody, when the action is brought by the minor child. There was no parental bond between Olpin and the child in the first place, Louden was trying to create one. While the Paternity test showed Oplin to be the father, the Louden case cites Salas v. Cortez (1979) 24 Cal.3d 22, 154 Cal.Rptr. 529, “It seems self-evident that the central issue in paternity suits is [not] the parent’s bond with the child. What is at stake is money….

The parents in Louden were never married.   What about parents that were married for say 20 years.  Where the Mother conceived, gave birth, had her name put on the birth certificate as Mother, nursed the child  and lived in the Family Home with him for over 10 years.  Where the Mother  requested the  visitation order, and the Joint Legal Custody order, not the Father or the child. In Loupen, it appears that the non-custodial parent never even met the child.  Where the Mother asserted and consented to her visitation and legal custody again at hearing to allow the child to enroll in Naval ROTC. With a Joint legal custody order in place, The Father  is obligated to consult with the Mother on decisions relating to the health, education, and welfare of the children. In addition, the Father  was directed under the  visitation order to see that the Mother has every other weekend with the child. This would insure that child  would have frequent and continuing contact with both parents. The court nor the Mother can attack the custody orders by citing Louden, as the Mother clearly consented to them, Calif. Civil Code 3519. He who can and does not forbid that which is done on his behalf, is deemed to have bidden it. We also see it in In re Marriage of Hinman 8 Cal.Rptr.2d 245 Cal.App. 1 Dist.,1992. [Mother] is precluded from attacking the provision of the judgment awarding joint custody of [children] to [Step-Father] by virtue of her consent to it.

If one still wants to argue that the courts can’t enforce moral duties, that doesn’t apply when there is a financial issue involved as we see in WAINSCOTT v. OCCIDENTAL BLDG. & LOAN ASS’N 98 Cal. 253, 33 P. 88 Courts of justice do not act as mere tribunals of conscience to enforce duties which are purely moral, and involving no pecuniary or tangible injury.

The Mother certainly consented to the custody orders by being awarded the Family Home,  her fax of  where she used her joint legal custody, to demand that child support payments be terminated and the 20% visitation was used to lower her obligations in the Disso master DEMO Download

Diane Fener, Esq. Site

20 Page Law Journal Article Southern Illinois University

Santa Clara University Ethics Site Discussion

Related Pages in  Child Custody


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