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Child Custody

There are many ways in which a case for child custody is filed. This section is a general overview that applies to all types of cases that involve children such as divorce, unmarried parents, and LGBTQ relationships.

Child Custody – Establishing a Parenting Plan

Whether you are the mother or father, the court will use the following guidelines to determine custody:

  1. The most important factor: each parent’s relative strength, nature and stability of the relationship with your child(ren), including which parent has taken greater responsibility for performing parenting functions relating to the daily needs of your child(ren).
  2. Any agreements between the parents.
  3. Each parent’s past and potential for future performance of parenting functions.
  4. You child(ren)’s emotional needs and development.
  5. Your child(ren)’s relationship with siblings and other significant adults, and involvement in his or her physical surroundings, school, and other activities.
  6. Wishes of the parents and the child(ren).
  7. Each parent’s employment schedule.

For each item in the above list, develop a written explanation of how that item applies to you. Again, the court places the most weight on the first factor. This explanation can be used as a starting point in developing reasons to convince the court that you should be awarded primary custody of your child(ren). Note: it is possible to obtain joint custody if both parents agree or the parents have a shared history of cooperation and shared in the performance of parenting functions and live in a reasonable proximity to one another.

Additionally, if you have been living in separate households for quite a while without a parenting plan in place, the Court may look at what the visitation schedule has been prior to establishing a parenting plan. There are pros and cons to this, depending on each person’s situation. For additional information on this topic, please check out our free legal guide.

Visitation – Regular and Limited

If one parent obtains custody, the other parent is generally entitled to visitation or residential time.

The amount of visitation varies depending on the age of the child(ren) and the particular circumstances. However, a general rule of thumb is the non-custodial parent will have the child(ren) every other weekend from Friday evening until Sunday evening and have the child(ren) for a midweek overnight every week.

In certain circumstances, a parent may request that the court substantially limit the other parent’s visitation with the children, or request that the other parent have no visitation at all. This request can be for permanent or temporary limitations that are lifted once treatment recommendations or steps outlined by the Court are completed. The parent must be deemed an unfit parent and the other parent must be able to prove it to the Court. Below are some of the reasons a Court may limit residential time:

  • Child abuse (emotional, physical, sexual)
  • Drug abuse
  • Criminal history
  • History of acts of domestic violence
  • Willful abandonment
  • Mental health
  • Unsafe environment

In general, the Courts do not particularly like to restrict a parent’s visitation unless it is necessary to protect the child(ren) because it infringes on the parent-child relationship and bond. Therefore, the Court often orders supervised visitation as a limitation so that children are safe, but can continue contact with the parent.  A supervisor can be an agreed third party, or a paid professional.

There are many avenues in which to propose limitations. Always consult with a lawyer on the best route, as you want to ensure children are safe, but that the restrictions are appropriate.

In general, don’t charge your spouse with being unfit unless you can prove it. Judges are not impressed with unfounded allegations; it can do more harm than good for your case.

Modification of Parenting Plan

Parenting plans finalized by the Court are meant to be permanent. Therefore, modifying a parenting plan in the future can be difficult. The parent requesting modification must first be able to prove there is “adequate cause” to proceed with their request. The Court will not modify a parenting plan unless it finds a substantial change has occurred in the circumstances of the child(ren) or the nonmoving party and that the modification is in the best interest of the child and is necessary. The following are the four legal standards in which to change a parenting plan:

  1. The parents agree to the modification;
  2. The child(ren) has/have been integrated into the family of the requesting parent with the consent of the other parent in substantial deviation from the parenting plan;
  3. The child(ren)’s present environment is detrimental to the child(ren)’s physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child(ren); or
  4. The court has found the nonmoving parent in contempt of court at least twice within three years because the parent failed to comply with the residential time provisions in the court-ordered parenting plan, or the parent has been convicted of custodial interference in the first or second degree.

Because filing for modification is no easy feat and the burden of proof is on the petitioning party, the petitioning party will generally want to ensure they have all facts and supportive evidence before the first hearing. You want to make sure your petition / request is ironclad, so to speak, with the essential key facts.

In the event you are served with a modification, you will want to respond in a timely manner and have all of your refutable facts ready to go so the modification is dismissed at the first hearing.

Third-party / Non-Parental Custody

If neither biological parent is a suitable custodian (unfit, child abandoned, parent imprisoned, etc.) and the child(ren) is/are not in the physical custody of one of the parents, you may legally file for non-parental custody under RCW 26.10.030. The non-parent/third party must show:

  • Both parents are “unfit”;
  • “Actual detriment” to the child(ren) would result from the parent’s custody; or
  • “Actual detriment” to the child(ren) has resulted from the parent’s custody.

Given the strong parental rights under our constitution, the Court looks closely at these cases before placing custody of minor children in someone else’s care. It will frequently request that a Guardian ad Litem be appointed in order to investigate the households and make a report to the Court.

It should be noted that even if a non-parental custody petition is filed, the parents still have rights to visitation. However, there are some cases where the Court will order no visitation until the biological parent completes specific activities to regain parental suitability. In other situations, the Court may order professionally supervised visitation or phone contact, etc.

Child support, medical, and tax exemptions are also dealt with through this process once the Court determines neither parent is suitable.

This decision is often difficult, but necessary if the child is in an unsafe situation. Do not hesitate to find out whether you have a case or if you need assistance in contesting a petition. Our lawyers are experienced and ready to help.

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