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Washington Divorce FAQ's - Parenting

This is about custody and visitation after divorce in Washington, including the effect on custody and visitation of misconduct of the parents, mental health of the parents, and the rights of grandparents in Washington.

This information is from Jennifer C.  Rydberg, the DivorceInfo Network Lawyer for Washington.

How does custody get decided as between a parent and a third party?

Basically, both of the parents must agree that a third party have custody of their child, or be so incompetent, neglectful, or abusive that it is legally possible to terminate the parents’ rights to custody or visitation. This is a complicated area of law in Washington. If you have concerns, whether because you are a parent, grandparent, or concerned third party, you should seek the advice of a family law attorney experienced in this area.

How does custody get decided as between parents?

Technically, we no longer have “custody” in the State of Washington. Both parents continue their role as parents when their marriage (or relationship) dissolves. A “Parenting Plan” is developed, which is a court order that organizes when the children will be with each parent, how holidays and vacations will be shared or alternated, and how major and minor parenting decisions will be made.

RCW 26. 09. 187 explains what the court has to consider when determining how to develop a Parenting Plan. The 1999 Washington State Parenting Act Study explains how the Parenting Act has been working in Washington, and can be downloaded from http://www.courts.wa.gov/forms/.

What’s the terminology for custody?

One parent is usually the “primary residential parent”, but parental decision making and access to information about the children is usually equal. Restrictions on residential time, decision making, and access to information are usually required when there are special circumstances, such as willful abandonment of a child, domestic violence, drug or alcohol abuse, abuse of a child, a criminal sexual abuse conviction, etc.

The decision making and access to information is most of what used to be called “joint custody”. Equal parenting time is now possible, but there must be an absence of special circumstances that require restrictions, and either a knowing and voluntary agreement of both parents OR a satisfactory history of cooperation and shared performance of parenting functions, with both parties being available to each other, especially in geographic proximity, to the extent necessary to ensure their ability to share performance of the parenting functions. The court must agree with the parents that equal time sharing is in the best interests of the children.

Is there a presumption in favor of not changing custody arrangements?

Divorce is a major disruption in children’s lives, and there is a practical presumption that children are better off making as few changes as possible while their parents are sorting out their marriage. Once a routine has been established for children that is working for the child, it is difficult to change. After a final Parenting Plan has been established, making major custody changes is only possible if you can show that a “major change of circumstances” has occurred, or if a change of custody was started by agreement and has been going on for some time. See RCW 26. 09. 260.

What effect does the misconduct of one of the parents have on custody?

Some restrictions are REQUIRED. Restrictions on residential time, decision making, and access to information about your child may be imposed if there has been willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions; physical, sexual, or a pattern of emotional abuse of a child; or a history of acts of domestic violence or an assault or sexual assault which causes grievous bodily harm or the fear of such harm. These restrictions may be applied if the parent is simply living with someone who has engaged in these behaviors. See RCW 26. 09. 191.

Adultery rarely makes any difference. If adultery is an issue in your marriage, be sure to go to your doctor and get checked out for all sexually transmitted diseases. If you have acquired an STD from your spouse, this may make a financial difference in your divorce.

What effect does the mental health of one of the parents have on custody?

Like physical health problems, many people facing the challenge of living with mental health problems are able to manage their mental health well and function quite well as parents. Tragically, some are not. The factors for determining a Parenting Plan apply; there are no special rules for mental health.  

When one or both parents has a mental health problem that impairs their ability to be an effective parent, it may be appropriate to have a psychological or psychiatric evaluation of the family performed before a final Parenting Plan is determined. The expense is usually paid by the family, and is usually not covered by medical insurance policies.  

When one parent has a mental health problem, both parents usually need effective mental health counseling and/or prescription drugs at the time the legal proceedings begin. Get good help right away and stay with it throughout the dissolution proceeding, even if you think you are the healthy parent. You are dealing with a very abnormal situation. Professional help will assist you in reaching a final Parenting Plan that is closer to being satisfactory, and will provide you with new ideas and skills on how to best help your children through this transition.

What effect does the preference of the child have on custody?

Legally, a child has no right to choose with which parent he/she lives until reaching the age of 18 years. Giving your child the choice, even an older teenager, puts an enormous burden on your child. Do your child a favor and be clear this is purely a parental decision that the court will decide if the parents cannot. If the court appoints an investigator for the Parenting Plan issues, the investigator will speak with your children, and learn of your children’s preferences then, if they have any.

How does visitation get set?

In Washington, our law recognizes the importance of both of the child’s parents to the child.

Is there such a thing as "standard visitation"? If so, what is it?

When parents are residing fairly close to one-another, the child’s non-school time is usually split equally between the parents. Non-school time includes weekends, holidays, special occasions, and school vacations. One or two mid-week visits are appropriate from after school/work until an hour or so before bedtime in many circumstances. Remember, your child needs to get sufficient sleep, do homework, and participate in extra-curricular interests or activities. Your child needs a routine; you have to be flexible to make this happen.

The further apart the parents live, the higher percentage of time the child is going to reside with the parent he/she lives with during the school year. Transportation time and costs become a practical problem that is shared between the parents.

Remember, certain circumstances require visitation restrictions.

Is there a standard visitation pattern when the non-custodial parent is in a different state from the child? If so, what is it?

There is no set standard. Individual arrangements are made that depend on the transportation available, costs, resources of the family, and age of the child. If train or airline transportation is being used, be sure to check the carriers for their requirements for independent travel of minor children. As a general rule, as the frequency of travel decreases, the time of each visit increases.

Frequent and regular use of e-mail, telephone, mail and faxes are used to keep the absent parent and child in touch with one another.

What rules govern cases where the custodial parent wants to move away with the children?

The primary residential parent must give at least 60 days advance written notice to the other parent. A specific procedure is set up if the parents disagree about moving the child. The failure to follow this procedure may result in the child’s residential placement being changed. The rules are complicated enough that you should consult an attorney if you think you might move with a child. See RCW 26. 09. 260, as amended in Chapter 21, Senate House Bill 2884.  See also In re Marriage of Pape, 989 P. 2d 1120 (Wash.  1999).

What visitation rights do grandparents have, if any?

None, except what each parent wants them to have during his/her residential time.

Other issues in Washington:

Stop the Divorce! | How much child support?
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