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The Friendly Parent Concept:
A Flawed Factor in Custody Decisions?
©Vicky Campagna,
PhD
For a pdf copy of this
article, click here
It has
long been argued that the parent who is more likely to encourage the
child’s relationship with the other parent should be the parent who is
awarded custody. This is commonly known as the “Friendly Parent”
doctrine and is actually codified in many jurisdictions. But is this
approach really in the child’s best interests?
One
family law attorney doesn’t think so! Margaret Dore penned a scathing
indictment of the idea in her article “The Friendly Parent Concept: A
Flawed Factor for Child Custody?” The entire article is available at
this URL: http://www.margaretdore.com/ch_custody.htm
Basically, she argues that the Courts are operating in a “reward and
punishment paradigm” by employing the Friendly Parent concept. One
parent is essentially being punished by being denied custody or
parenting time. Dore contends that the child’s needs are thus being
subjugated to these penalties. Moreover, parents are in effect being
encouraged to escalate the hostilities by showing how the other parent
is being uncooperative. This may even lead to “setting up” the other
parent.
The
Friendly Parent concept places litigating parents in what Dore calls a
“Catch 22” situation: a parent wants to gain custody and thus presents
reasons why the other parent is not the right choice. But in presenting
that information, the first parent is obviously being negative and thus
runs the risk of being perceived as “unfriendly” him/ herself!
Dore
also contends that this concept “puts children and their protective
parents at risk because it encourages the courts to view evidence of
violence, abuse and neglect as mere ‘conflict.’” And Parental Alienation
Syndrome (PAS) also can cause many similar problems: the more evidence
is brought to light regarding abuse, the more likely it is that the
child is being “alienated.” Thus, actual abuse may not be addressed,
but simply dismissed as yet another example of how the less-friendly
parent is being difficult. Ducote, quoted in Dore’s article, succinctly
observes “the increased existence of valid evidence of true….abuse
leads (PAS author) Gardner….to more fervently diagnose ‘PAS.’ Thus,
‘PAS’ is the criminal defense attorney’s dream, since the greater the
proof of the crime, the greater the proof of the defense.” In sum, even
the substantiated criticism of the other parent for harmful behaviors
towards the child opens the door to accusations of PAS and even
potential custodial transfer.
And the
Friendly Parent concept increases the odds of protracted litigation,
with all its attendant emotional and financial stressors. The
possibility of more litigation may compel the custodial parent to allow
concessions to which s/he would not otherwise agree. Dore contends that
the Friendly Parent concept thereby contributes to the impoverishment of
children and their custodial parent.
In the
concluding paragraphs of her article, Dore presents a case that
Friendly Parent concept is actually unconstitutional.
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