Published 2004, Volume 6, pp 41- 56 by Loyola Journal of Public Interest Law

by Margaret K. Dore

I. INTRODUCTION

The so-called “friendly parent” concept presents what seems to be a reasonable idea for the resolution of child custody disputes. Children are thought to do better when allowed or encouraged to maintain a close relationship with both parents. Therefore, custody should be awarded to the parent most likely to foster the child’s relationship with the other parent, i.e., the “friendly parent.”

The friendly parent concept is sometimes referred to as the friendly parent doctrine. It is codified in child custody statutes requiring a court to consider as a factor for custody, which parent is more likely to allow “frequent and continuing contact” with the child and the other parent, or which parent is more likely to promote the child’s contact or relationship with the other parent.

For example, Florida’s child custody statute requires courts to consider two friendly parent provisions: which parent is “more likely to allow the child frequent and continuing contact with the nonresidential parent;” and “[t]he willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.”

As another example, Virginia’s child custody statute also requires courts to consider two friendly parent provisions: “[t]he propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;” and “[t]he relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child.”

On close examination, the friendly parent concept presents a paradox. This is because in a child custody dispute, the parents are in litigation against each other. The purpose of this litigation is to take custody away from the other parent, which by definition does not foster the other parent’s relationship with the child. The friendly parent concept, however, requires parents to make the opposite showing, that they will “most likely foster . . . the other parent’s relationship with the child.”

With this inherent contradiction, the results of a friendly parent analysis are unpredictable and at times, bizarre. The friendly parent concept also encourages litigation and conflict between parents; it renders parents unable to protect themselves and their children from abuse, violence, and neglect at the hands of the other parent. Because of these problems, this article argues that the friendly parent concept should be eliminated from child custody practice, and that existing friendly parent statutory provisions should be repealed or judicially overturned.

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