Washington State Provides Important Data on Custody Cases

Washington State is breaking some new ground in collecting and analyzing divorce and custody statistics.  In 2004, the Washington State Supreme Court ordered the establishment of the Washington State Center for Court Research (WSCCR) which is the research arm of the Administrative Office of the Courts.

Since 2007, the WSCCR has been collecting data on a variety of variables in custody cases across the state.  The data are collected by requiring divorcing parents to fill out a form.  There’s no way of assessing the accuracy of what’s reported, but over the years, the data seem consistent and no one seems to think there’s any concerted effort to not report correct information.

Here’s the report for July 2009 through June 2010.  There’s some interesting information in it.

Final outcomes in the vast majority of cases are agreed to by the parties.  Agreement occurred in 88% of cases and 10% were decided by default (i.e. one party failed to appear and answer the divorce petition), leaving only 2% of cases decided by a judge’s decision following a trial.

Equal parenting is on the rise.  In the first Residential Time Summary Report in 2008, only about 15% of cases resulted in equal parenting time.  In 2010, it was 18% and 21% in cases in which neither parent had a “risk factor.”

And fathers are doing better when they contest custody.  In 2008-09, fathers got majority parenting time in only 15% of contested cases; a year later it was 28%, i.e. almost double.  Again, only 2% of cases were contested, so that doesn’t add up to a lot of dads getting the lion’s share of the parenting time.  But what it does suggest is that when dads demand more custody, courts are starting to listen.

Otherwise, it’s pretty much a clean sweep for moms.  They get majority parenting time in 65% of all cases and 64% of those in which there are no parental “risk factors.”  Dads get 17% and 15% respectively.

Risk factors are things like findings or admissions of domestic violence, drug or alcohol dependency, abandonment of the child or abuse or neglect of the child.  Ten percent of dads had at least one risk factor compared to 4% of moms.  That makes it strange that 17% of all dads got majority parenting time but only 15% of dads did in cases in which there were no risk factors. I’d have thought the percentage would go up.

In  26% of cases in which dad had no risk factors and Mom had one, Dad got full custody.  But reverse the sexes and Mom got full custody 44% of the time.  When dad had no risk factors and Mom had two, he got full custody 42% of the time.  Again, when the sexes were reversed, Mom got full custody 63% of the time.

So, in divorce court, risk factors like the ones mentioned above have differing impacts on custody depending on whether it’s a mother or a father doing the bad acts.  Fathers are penalized more than mothers and the penalty comes in loss of parenting time with the kids.

Moms’ continuing hegemony in custody cases is nowhere more apparent than when cases are broken down into how the parties are represented in the proceedings.

On the Residential Time Summary Reports, respondents indicated whether the father and mother were self-represented or represented by an attorney. For 60% of the cases, both parties were self-represented. For 23%, one party was self-represented and the other party was represented by an attorney; for 18% of the cases, both parties were represented by an attorney.

I find it interesting that so many people do it themselves.  I strongly suspect that’s a matter of money; they can’t afford a lawyer and think they can work it out on their own.  In all but 2% of the cases, they’re right.

Parenthetically, I’d like to add something that certainly helps point the way in family court reform – in the overwhelming majority of cases, there are no difficult issues of law to be decided.  Property issues are usually cut and dried and utterly subject to agreement; custody issues may be contentious, but rarely is there a legal issue involved.  The point being that judges and lawyers are seldom necessary and often an impediment to sound, non-contentious decision making.

The report divides cases up into those in which neither party has a lawyer, those in which only Dad has one, those in which only Mom does and those in which both Dad and Mom do.  In a nutshell, with one exception, everyone does better with a lawyer than without. 

The remarkable data come from the cases in which Mom is representing herself, but Dad has an attorney.  In many of those categories, by herself she outdoes the Dad and his lawyer.  For example, in 12% of cases in which Mom represents herself and Dad has a lawyer, she got 70% parenting time versus only 8% of cases in which he did.  When parenting time is divided 60%/40%, Mom alone got majority time in 10% of cases versus just 4% for Dad and his lawyer.

All in all, the data out of Washington State divorce courts isn’t earth-shattering, but it’s more detailed than we get from any other state.  (I asked the WSCCR if they knew of any other states keeping similar information and they said that to their knowledge there were none.)

And what it shows is a strong preference on the part of the courts for maternal custody.  Of course, the argument can be made that, since 88% of cases are agreed to, it’s not the courts but the parties that prefer maternal custody.  But that argument assumes that mothers and fathers don’t have some very good ideas about how courts decide custody matters, and make their agreements accordingly.  Sanford Braver, among others, found that agreed-to outcomes in custody cases were influenced by the parties’ perceptions of court tendencies.

And these data don’t tell us that it’s better for dads to demand a trial than to agree.  Judges don’t treat them any better than their wives do.

There are a lot of limitations to these data, but Washington State has provided us with, to my knowledge, the first standardized set of data, regularly collected and published, in the country.  As such, it’ll prove invaluable in charting trends in child custody post-divorce.

Thanks to Jim for the heads-up.

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