Marriage of Kovacs, In re
| Decision Date | 08 July 1993 |
| Docket Number | No. 60035-0,60035-0 |
| Citation | 854 P.2d 629,121 Wn.2d 795 |
| Parties | , 62 USLW 2079 In re the MARRIAGE OF Marcia Jean KOVACS, Respondent, and John E. Kovacs, Petitioner. En Banc |
| Court | Washington Supreme Court |
Michael F. Keyes, Spokane, for respondent.
The father in this marriage dissolution action seeks review of a Court of Appeals decision which reversed the trial court's order awarding primary residential care of the parties' three minor children to the father rather than to the mother. The father argues that the Court of Appeals applied the wrong legal standard when it held that the parent who has been the primary caregiver of the children during marriage must be designated as the primary residential parent in a dissolution action, unless that parent's personality, conduct or parenting style is found to have had an adverse impact on the children. 1 We agree with the father and reverse the Court of Appeals.
John and Marcia Kovacs were married in August 1982. At the time of the marriage John owned a small janitorial business in Alaska and Marcia was working in a restaurant.
The Kovacs have three children, Johnny, who is now 10 years old; Courtney, who is 9 years old; and Billy, who is 6 years old. During the marriage Marcia generally stayed at home to care for the children and the family home while John worked outside the home to financially care for the family. Marcia worked outside the home for only a short time prior to the separation.
In 1984, John was forced to sell his janitorial business to meet an IRS obligation. He worked for the new owner of the business for a time, but problems developed in the employment relationship and John was fired in the spring of 1988.
After John lost his job, the couple decided to move to California where job opportunities appeared to be better than those in Alaska. The couple agreed that Marcia would stay with the children in Spokane, where Marcia's parents lived, until John was able to find a job and housing in California. Marcia and the children moved to Spokane in late April 1989. They lived with Marcia's parents until the He found a job in California on August 18, 1989, and later moved into a three-bedroom townhouse in a planned residential community in Irvine, California. Marcia traveled to Irvine in October 1989 to see the new home but did not tell John at that time that she intended to file for dissolution of their marriage. It was not until John arrived in Spokane in November 1989 to move his family to California that Marcia told him the marriage was over. John returned to California and Marcia remained in Spokane with the three children.
Kovacs' furniture arrived and Marcia was able to move into a duplex owned by her parents. John joined the family 3 or 4 weeks later, on May 22, 1989. Then, in mid-June, John went to California to look for work
She apparently filed a petition for dissolution of marriage in Spokane County Superior Court on December 20, 1989. A temporary parenting plan, awarding Marcia primary residential placement of the children pending final resolution of the action, was apparently entered in March 1990. 2
Testimony before the trial court indicated that Marcia was the primary caregiver and was generally responsible for the day-to-day care of the children's needs during the marriage and during the period of separation.
The record reflects the problems that existed within the family and with each parent.
During the approximately 18 months the couple was living apart, Marcia became romantically involved with another man, she left the children with various relatives during times when she was traveling to and from the man's home in Olympia, and was cited for two alcohol-related driving offenses. She was arrested for driving while under the influence of alcohol in October 1989 after she was involved in an automobile accident. The children, who were in the automobile at the time, were temporarily removed from Marcia's care and placed in a foster home for 2 days.
At trial both parents sought primary residential placement of the children.
Both parents had apparently agreed to be evaluated by the father's expert witness, a clinical psychologist. The psychologist interviewed each parent alone, administered personality tests to each parent, observed the children alone and observed each parent with the children. With the information gained through the testing, the interviews and observation the psychologist concluded that Marcia has a personality disorder. The psychologist testified that although an individual with a personality disorder could "get by as a parent", the personality disorder would inevitably affect parenting.
The psychologist testified that although the children were "adequately adjusted", they appeared to respond better to the father's directions than the mother's. He stated that the oldest child was the most difficult of the three to manage and that child needed the firm limit setting that the father was able to provide. While stating the question was "relatively close", the psychologist recommended that the father be awarded primary residential placement of the children because the father "is a more stable individual who will provide a more structured stable environment for the children."
The mother's expert was a counselor who met the mother for the first time just a few days before trial. She observed the mother and children together the day before trial began. The counselor did not administer any tests and did not meet the father. The counselor recommended the children be placed with the mother. The counselor said she found the children to be "in pretty good shape, so whatever either parent has done, they must have done a pretty good job." She also said the children told her that they wanted to live with their mother. The counselor, noting that the mother was the primary caregiver of the children, stated, "Children can get along without a lot of things, but they don't get along well without nurturing from a mother."
The trial court followed the recommendation of the father's expert and awarded primary residential placement of the children to the father. The children moved to their father's On appeal the Court of Appeals reversed the trial court's order, and remanded for a new trial, holding that placement with the parent who had acted as the primary caregiver was required unless the child had been harmed by the conduct of the primary caregiver. In re Marriage of Kovacs, 67 Wash.App. 727, 730-31, 840 P.2d 214 (1992). We granted the father's petition for review.
home in California in January 1991, just a few days after the conclusion of the trial, and have continued to reside there during this appeal. A stay of the trial court's order was denied by the Court of Appeals on January 18, 1991
One issue is presented.
Does the Parenting Act of 1987 create a presumption that placement of a child with the parent who has been the primary caregiver is always in the child's best interests absent proof that the primary caregiver's personality, conduct or parenting style has harmed the child's physical, mental or emotional well being?
CONCLUSION. The Parenting Act of 1987 does not create a presumption in favor of placement with the primary caregiver. Instead, the Act requires consideration of seven factors and provides that the child's relationship with each parent be the factor given the greatest weight in determining the permanent residential placement.
We have not yet construed the residential provisions of the Parenting Act of 1987 (hereinafter Parenting Act or the Act), Laws of 1987, ch. 460.
Washington's Parenting Act represents a unique legislative attempt to reduce the conflict between parents who are in the throes of a marriage dissolution by focusing on continued "parenting" responsibilities, rather than on winning custody/visitation battles. 3 The Act replaced the terms "custody- " and "visitation" with the concepts of "parenting plans" and "parental functions". 4 Ordinarily parents involved in a marriage dissolution action are required to develop a parenting plan that: (1) provides for a method of resolving future disputes about the children; (2) allocates decisionmaking between the parents; and (3) makes residential provisions for each child. 5 It is only the residential placement of the parties' children that is at issue in the present case.
In ordering a parenting plan, the trial court is required to provide for the residential schedule or placement of the child. 6 The residential placement is to be in the best interests of the child 7 and is to be made only after certain factors have been considered by the court. 8 The Parenting Act revised the factors previously considered by the trial court under former law, but continues to give the trial court broad discretion when making the determination. 9
A trial court's ruling dealing with the placement of children is reviewed for abuse of discretion. 10 A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. 11
In the present case the Court of Appeals held that the trial court abused its discretion because it failed to find circumstances supporting a "change" of placement from the primary caregiver (the mother) to the father. 12 In ruling as it did, the Court of Appeals relied on a 1975 case, Wildermuth v. Wildermuth, 14 Wash.App. 442, 542 P.2d 463 (1975). Although Wildermuth was a modification of custody case, the Court of Appeals found the language of the former modification statute and the language of the policy section of the Parenting Act of 1987 to be similar. 13
The Court of Appeals interpreted the Parenting Act to require placement with the parent who has provided the primary daily care of the child, unless the trial court finds that the personality or parenting style of the primary caregiver...
To continue reading
Request your trial
-
In re Jones
... ... Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) ). Accord In re Marriage of Kovacs, 121 Wash.2d 795, 807, 854 P.2d 629 (1993) ("the statements of individual lawmakers and others before the Senate Judiciary Committee ... ...
-
Wash. Bankers Ass'n v. State
... ... While lawmakers concerns about the constitutionality of SHB 2167 may be moderately "instructive" in determining legislative intent, In re Marriage of Kovacs , 121 Wash.2d 795, 807-08, 854 P.2d 629 (1993), they do not exist in a vacuum. They must be considered together with the statements of ... ...
-
State v. Evans
... ... H. Floor Debate on Substitute H.B. 1250 (Apr. 11, 2001, 10:00 a.m.), at 51 min., 38 sec.; cf. In re Marriage of Kovacs, 121 Wash.2d 795, 80708, 854 P.2d 629 (1993) (noting that the remarks of ... a prime sponsor and drafter of the bill can assist in ... ...
-
Katare v. Katare
... 175 Wash.2d 23 283 P.3d 546 In the Matter of the Marriage of Lynette KATARE, Respondent, v. Brajesh KATARE, Petitioner. No. 855919. Supreme Court of Washington, En Banc. Argued Nov. 15, 2011. Decided Aug ... In re Marriage of Kovacs, 121 Wash.2d 795, 801, 854 P.2d 629 (1993). The court's discretion must be guided by several provisions of the Parenting Act of 1987, namely RCW ... ...
-
Federalism and families.
...considerable force in custody determinations, they are not always the determinative factors in custody decisions. See, e.g., In re Kovacs, 854 P.2d 629, 632-33 (Wash. 1993) (en banc) (rejecting a presumption favoring placement with the primary caregiver). Moreover, the process of identifyin......
-
A New Approach to Statutory Interpretation in Washington
...Re Marriage of Little, 96 Wash. 2d 183, 191 n.3, 634 P.2d 498, 503 n.3 (1981). 127. See, e.g., In re Marriage of Kovacs, 121 Wash. 2d 795, 854 P.2d 629 (1993) (letter, remarks of committee chair, and prime sponsor of bill to other house); see also Biggs v. Vail, 119 Wash. 2d 129, 135, 830 P......
-
Balancing Interests Under Washington's Statute Governing the Admissibility of Extraneous Sex-offense Evidence
...used subsequent drafts of legislation to determine legislative intent. See, e.g.. In re the Marriage of Kovacs, 121 Wash. 2d 795, 804-08, 854 P.2d 629, 634-36 118. S. 6363 § 3(1), 60th Leg., 2008 Reg. Sess. (Wash. 2008); H.R. 2622 § 3(1), 60th Leg., 2008 Reg. Sess. (Wash. 2008). 119. Compar......