In re Marriage of Kovacs – Child Custody
In re Marriage of Kovacs, 121 Wn.2d 795, 854 P.2d 629 (Wash. 1993).
NATURE OF THE CASE: This family law case involved a dispute over a presumption of custody to a primary care parent prior to dissolution of the marriage.
FACTS: H and W were married in 1982 and had three children. H owned a small janitorial business and W worked in a restaurant. During the marriage W stayed home and cared for the children while H worked. H was forced to sell his business in 1984. H worked for the new owner but was fired in 1988. H sought to relocate to California for better job prospects and W moved with the children to Spokane to live with her parents until H could get established. H found a job and established a new family home in Irvine. W visited the new home but did not tell H that she was planning a dissolution of the marriage until H arrived in Spokane to move the family.
Testimony before the trial court indicated that W was the primary care giver. Evidence was presented however showing that W had left the children alone to pursue a new paramour and had been cited twice for drunk driving. She was arrested for DUI after an accident in 1989. The children were in the car at the time and were placed in foster care for two days.
An expert hired by H met with both parents and determined that W had a personality disorder that would affect parenting. Another expert hired by W recommended that the children be placed with the mother but had never met with D and had only met W a few days before the trial. W’s counselor testified that children were capable of getting along without a lot of things but could not get along well without nurturing from the mother.
The trial court awarded custody to H. The Court of Appeals reversed holding that placement with the primary care giver was required unless the child had been harmed by the conduct of the primary caregiver. This appeal resulted.
ISSUE: Is there a rebuttable presumption in favor of placement with the primary caregiver absent proof that the primary caregiver has harmed the children in any way?
RULE OF LAW: No. There is no rebuttable presumption in favor of the placement of children with the primary caregiver absent proof that the primary caregiver has harmed the children in any way.
HOLDING AND DECISION: The Parenting Act of 1987 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. The Act encourages the creation of parenting plans that are in the best interests of the children. Residential placement is to be determined from the best interests of the child. A trial court has broad discretion for placement of children and its decisions should only be reversed upon an abuse of discretion. The Court of Appeals determined that this trial court abused its discretion because it failed to find circumstances supporting a change of placement from the primary caregiver based on the presumption of the primary caregiver. The Act clearly states that in entering a permanent parenting plan, the court shall not draw any presumptions from the provisions of the temporary parenting plan. It is thus clear that the Legislature did not intend to create any presumption in favor of the primary caregiver but intended to reject such presumptions. The decision of the trial court was based on the statutory factors and as such the Appeals court is reversed.
DISPOSITION: Affirmed.