FAQ: Parenting Plans (Custody)
Suggested Reading:
Books for Children on Divorce
Children's Bill of Rights
Stepping Back from Anger - Protecting Your Children During Divorce
How is custody/visitation determined?
Not so long ago "custody" was usually awarded to the mother with "reasonable" visitation rights granted to the father. This, of course, lead to numerous disputes over what constituted "reasonable" rights of visitation. In an attempt to significantly reduce conflict between parents, Washington courts no longer award "custody" of the children to one parent with visitation rights granted to the other parent, nor do they award "joint custody." Instead, all parties seeking a dissolution of marriage where children are involved (or establishment of paternity) must agree to a Parenting Plan or have one imposed by the court.
What issues are addressed in a Parenting Plan?
A Parenting Plan is an extensive document that includes a residential schedule for the school year, summer vacation, school breaks, holidays, and special occasions. In addition, it addresses decision making issues such as educational choices, religious upbringing, and medical care. It will also set forth any restrictions as to residential care. Although the document may at first seem overwhelming, its purpose is to eliminate disputes by setting forth specifically each parent's rights and responsibilities.
How does the court determine the residential schedule?
The Washington State Legislature has set forth specific factors to be taken into consideration when establishing a Parenting Plan. These factors include, but are not limited to, the following:
The court shall make residential provisions for each child which encourage each parent to maintain a loving, stable, and nurturing relationship with the child, consistent with the child's developmental level and the family's social and economic circumstances. The court shall consider the following factors:
(i) The relative strength, nature, and stability of the child's relationship with each parent, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
(ii) The agreements of the parties, provided they were entered into knowingly and voluntarily;
(iii) Each parent's past and potential for future performance of parenting functions;
(iv) The emotional needs and developmental level of the child;
(v) The child's relationship with siblings and with other significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities;
(vi) The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and
(vii) Each parent's employment schedule, and shall make accommodations consistent with those schedules.
Factor (i) shall be given the greatest weight.
What are "Parenting Functions"?
"Parenting functions" means a parent making decisions and performing acts necessary for the care and growth of the child. Parenting functions are defined by six (6) non-exclusive factors:
1. Maintaining a loving, stable, consistent, and nurturing relationship with the child;
2. Seeing to the child's daily needs, such as physical care (feeding, clothing) and engaging in age-appropriate activities with the child that are within the social and economic circumstances of the particular family;
3. Providing adequate education for the child;
4. Helping the child develop and maintain appropriate interpersonal relationships;
5. Exercising appropriate judgment regarding the child's welfare; and
6. Providing for the financial support of the child.
At what age can a child determine where he or she wishes to live?
Children do not have the final say as to where they wish to live. The court may take into consideration the child's desires by interviewing the child in chambers pursuant to RCW 26.09.210. However, the court will take into consideration all of the factors set forth above when determining an appropriate parenting plan along with child's desire.
How are disputes over the establishment of a parenting plan resolved?
When the parents are unable to reach an amicable agreement in the best interests of the children, the courts will often times appoint a guardian ad litem to look after the child's bests interests. A guardian ad litem will conduct an "investigation" by interviewing the parents, the children, and others who have knowledge regarding the children. The guardian ad litem will then make a written recommendation to the court.
How does someone get to be a guardian ad litem?
A guardian ad litem is someone who has special training in parenting matters. Often times he or she will be an attorney or a counselor or psychologist. Guardian ad litems must be approved by the court.
What are the factors to have restrictions placed on my spouse's residential time with our children?
RCW 26.09.191 provides, in part, as follows:
(2)(a) The parent's residential time with the child shall be limited if it is found that the parent has engaged in any of the following conduct:
(i) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions;
(ii) physical, sexual, or a pattern of emotional abuse of a child;
(iii) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm; or
(iv) the parent has been convicted as an adult of a sex offense.
My spouse and I cannot agree on anything. How are we supposed to make mutual decisions regarding our children?
Under RCW 26.09.191, the courts have allowed the elimination of mutual decision making under certain circumstances. These are as follows:
"(1) The permanent parenting plan shall not require mutual decision-making or designation of a dispute resolution process other than court action if it is found that a parent has engaged in any of the following conduct:
(a) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions;
(b) physical, sexual, or a pattern of emotional abuse of a child; or
(c) a history of acts of domestic violence as defined in RCW 26.50.010
(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm."
When is a child emancipated for purposes of a parenting plan?
At age eighteen (18), except in unusual circumstances.
What Do You Recommend?
Strongly consider mediation as a possible means of arriving at a Parenting Plan, but only after you have consulted with legal counsel.
Never leave the family home if there are disputes regarding who is going to be the primary care parent.
Consider counseling for the children to assist them in adjusting to the upset associated with their parents' separation.
Never disparage the other parent or discuss the legal proceedings in front of the children.
