Gouras & Amis P.L.L.C.

GOURAS & AMIS P.L.L.C.

Child Custody Information:
About Contested Custody

 

	CUSTODY CASES
	Designation of Parental Rights
	Determining the Visitation Under the Parenting Plan
	Determining a Schedule in Difficult Circumstances
	INTERSTATE CUSTODY CASES
	Choice of States
	Parental Abduction Cases
	Civil verses Criminal Cases
	Limited or No Flight Risk
	Substantial Flight Risk
	INTERNATIONAL CUSTODY CASES
	Common Abduction Situations
	Handling the International Abduction Case
	Non-Hague Countries
	Countries Under the Hague Convention
	Operation of the Hague Convention

 

CUSTODY CASES

DESIGNATION OF PARENTAL RIGHTS

Although the term "custody" is used frequently to describe parents who have the children the majority of the time, Washington state statutes have eliminated this term and the consequences that normally flow from having "custody."

Washington state now uses a Parenting Plan. The Parenting Plan provides where the children will reside 365 days a year. All major holidays are divided, as are vacations and special occasions such as birthdays. The parent who has the children the majority of the year is deemed the "primary residential parent" and the other parent is deemed the "non-primary residential parent

The only reference in the Parenting Plan to joint matters is "joint decision-making." This usually involves three major areas: 1) non-emergency medical care; 2) schooling; and 3) religion. Depending upon the circumstances, all or some of these areas may be required to be made jointly, or by one parent or the other. Nothing in the statute requires that the primary residential parent (normally known as the custodial parent) have any say in these matters, although commonly they do. The statute sets forth the criteria for determining whether joint decision-making is appropriate, when this issue is contested. In general, if there is a history of abuse or confrontation, it is not appropriate for there to be joint decision-making on the major issues.

Washington's statute RCW 26.09.087 states the main factors for consideration:

(a) 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. Providing that there are no grounds for restrictions, 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.

While there are no "joint custody" provisions under the statute, the court may order "equal intervals" if the following criteria are met:

(i) No limitation exists under RCW 26.09.191 (no abuse, etc);

(ii)(A) The parties have agreed to such provisions and the agreement was knowingly and voluntarily entered into; or

(B) The parties have a satisfactory history of cooperation and shared performance of parenting functions; the parties are available to each other, especially in geographic proximity, to the extent necessary to ensure their ability to share performance of the parenting functions; and

(iii) The provisions are in the best interests of the child.

TOP OF PAGE

DETERMINING THE VISITATION UNDER THE PARENTING PLAN

The statute provides a variety of factors in considering which parent will have the children the majority of the time. Each case is different and how these factors will be weighed depends upon the individual case. One of the factors is who has provided the primary care for the child for the last year. The statute provides that there is to be no preference for women or men.

The court has a great deal of discretion in setting the individual schedule. In general, however, the court will grant as much visitation as possible to the non-residential parent depending upon how involved that parent was in the child's upbringing. For example, if both parents were heavily involved in the child's upbringing and the court determines the mother to be the primary residential parent (custodian), the father would likely receive more than the typical every other weekend visitation. The goal of providing this additional time would be to maintain the child's psychological bond to both parents. To the contrary, in the case of an uninvolved father, the court will often grant every other weekend visitation and some time during school vacations, holidays and summer. This schedule would be designed to ensure that the father continues to play a role in the child's life, while permitting the parent who has traditionally provided most of the emotional support for the child to continue in that role.

It is important to understand that there is no set formula. The court will always look at visitation from the child's needs and determine what schedule is appropriate for the child.

TOP OF PAGE

DETERMINING A SCHEDULE IN DIFFICULT CIRCUMSTANCES

While the court's goal is to provide time with the children in a way that will meet the child's needs, this is not always possible. Where there are allegations that the other parent is unable to care for the child, the court will take necessary steps to protect the child and investigate the allegations. Restrictions to visitation with the child are set forth in the Washington statute RCW 26.09.191:

Major considerations are: 1) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions (this applies only to parents, not to a person who resides with a parent); 2) Physical, sexual or a pattern of emotional abuse of a child; 3) A history of acts of domestic or an assault or sexual assault which causes grievous bodily harm or the fear of such harm.

Other considerations are: 1) Neglect or substantial nonperformance of parenting functions; 2) A long-term emotional or physical impairment which interferes with the performance of parenting functions; 3) A long-term impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting functions; 4) The absence or substantial impairment of emotional ties between the parent and child; 5) The abusive use of conflict by the parent which creates the danger of serious damage to the child's psychological development; 6) A parent has withheld from the other parent access to the child for a protracted period without good cause.

These are the some of the most difficult family law cases. Emergency matters must be addressed first. If there are physical or sexual assaults the police are typically involved. Whether or not the police are involved, civil restraining orders are often sought on an emergency basis. Temporary orders are usually entered until an investigation is completed.

It is important to thoroughly gather your evidence at this point. Vague allegations or hearsay statements carry little weight with the court. Whenever possible documentation is best. For example, saying that your husband is an alcoholic has little meaning, as it is simply your non-expert opinion. Producing documentation of a drunk driving conviction is a far more compelling piece of evidence. Your attorney will assist you in assembling your most persuasive evidence.

Once the emergency issues are addressed there is typically an investigation. The Washington statute RCW 26.09.220 provides for an investigation and report or a guardian ad litem, or both. The investigation typically involves interviewing the parents, the child and any potential witnesses. At the conclusion of the investigation a report is issued which makes recommendations to the court. There may also be a separate evaluation of drug and/or alcohol abuse issues. The evaluations typically carry a great deal of weight with the court. As such, great care should be given in requesting a qualified and experienced evaluator.

The outcome of the case will depend upon the evidence gathered and the recommendations of the parenting evaluator. Your attorney will assist you in preparing your case for trial if the parties do not agree to accept the recommendations of the parenting evaluator.

TOP OF PAGE

INTERSTATE CUSTODY CASES

CHOICE OF STATES / UCCJEA

In our mobile society it is common for parents to move from one state to the other. Over the years this has caused a great deal of conflict. The Uniform Child Custody Jurisdiction Act (UCCJA) was adopted by Washington state on June 7, 1979. The essential elements of this statute determine which state will hear a case so that the parties can focus on the questions of the case rather than the question of which state will hear the matter.

To clarify enforcement issues, Washington has now adopted the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) under RCW 26.27. These new provisions took effect on July 22, 2001.

In general, the "home state" of the child is the state where the child lived with a parent for at least six consecutive months immediately before the custody case was filed. The home state is often the state that has jurisdiction over the custody issues in the case. There are exceptions under the statute, however, and competent counsel must be obtained to apply the statute to the facts of your individual case.

TOP OF PAGE

PARENTAL ABDUCTION CASES

CIVIL VERSES CRIMINAL CASES

The abduction of children by strangers is a police matter. Private attorneys are usually not involved in the recovery of children who are abducted by strangers.

In Washington state, the abduction of children by a family member or parent can also be charged as either a felony or a misdemeanor, depending upon the circumstances. While the police may very well be involved, it is essential to hire an experienced family law attorney to handle the recovery and return of the children.

How an abduction is handled depends largely upon whether the abducting parent is considered a flight risk. Your attorney and the police detective can advise you of how best to proceed.

TOP OF PAGE

LIMITED OR NO FLIGHT RISK

If, after considering all of the factors the abducting parent is not considered to be a flight risk, then emergency restraining orders and an Order To Show Cause to appear in court for the return of the child may very well be appropriate. An example of this is where the parent is not in hiding and has disclosed the children's location. At the return hearing on the emergency restraining order, the court can make provisions for return of the child, if the circumstances warrant a return.

TOP OF PAGE

SUBSTANTIAL FLIGHT RISK

There can be a variety of factors indicating that the abducting parent is at risk to run with the child again. Obvious indicators include enrolling the child in school under a false name and social security number, and renting an apartment and taking employment under an assumed name.

In these cases, arrangements must be made for the return of the children, without the abducting parent's knowledge. This is done through a Writ of Habeas Corpus. An application is made to the Superior Court for the Writ, without notice to the other side. If the court is convinced that the circumstances warrant such an extraordinary measure, the Writ, and an Arrest Warrant will be issued. This permits the police to remove the child from school, or break into a premises (if necessary) in order to recover the child. Once the child is recovered, an emergency hearing is immediately held. Both sides are permitted to state their case, and the court then decides where the child goes.

Sometimes, the court will conduct an investigation prior to the release of the children. This is less likely, however, if there is a valid out of state order and no emergency is alleged since the entry of that order. Usually, the children will be promptly released to the parent who has the out of state custody order. Any further custody battles will be heard in the state that issued the existing custody order.

If the court does feel that an emergency exists, it does have the authority to take charge of the children to protect them. In general, this authority continues until it is shown that the other state has made adequate provisions to protect the children.

TOP OF PAGE

INTERNATIONAL CUSTODY CASES

COMMON ABDUCTION SITUATIONS

The most common type of abduction is by one of the parents. International abductions usually occur when one parent has a background or upbringing in another country. When the marriage splits up it is not uncommon for one of the parents to want to return to their home country where their family, friends and support system are located. On some occasions that parent might bring the children out of the country. The other type of common abduction is in a custody dispute. When one of the parents "loses" in court, they sometimes feel that they can still "win" by abducting the children out of the country. In any of these abduction situations, the remaining parent is left trying to obtain the return of the children, or in some cases, trying to have any relationship with the children whatsoever.

TOP OF PAGE

HANDLING THE INTERNATIONAL ABDUCTION CASE

How an international abduction case is handled depends entirely on whether the country to which the child is abducted is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

TOP OF PAGE

NON-HAGUE COUNTRIES

When a child is taken to any country that has not signed the Hague Convention, the remaining parent must pursue their case in the courts of the country to which the child has been taken. This can be very expensive, and is often one of the motivations for removing the child in the first instance. Competent counsel should be obtained in the other country immediately. Often times the removing parent will file a custody action in the other country in an attempt to legitimize the abduction. If the remaining parents interests are not represented adequately, the other country might enter custody orders by default.

Depending upon the country, there is some chance that they will order the return of the child to the country from which they were taken. Often, however, the other country's courts will take jurisdiction of the case even though the children have no connection to that country. The remaining parents only recourse is to fight the custody battle in the other country.

TOP OF PAGE

COUNTRIES UNDER THE HAGUE CONVENTION

The following countries have signed the Hague Convention and are bound by its terms as of January, 2007:

Additional countries are being added all of the time. If you do not see the country on this list, you need to call your county's State Department to see if the country you are interested in has signed the treaty.

In the United States, the State Department can be reached at:
Office of Children's Issues
CA/OCS/CI, Room 4811
Department of State, Washington, D.C. 20520-4818

The U.S. State Department's current listing of countries can be found at: List of Hague Convention Signatory Countries.

To actually file an application to have the U.S. Central Authority assist in the return of the child, you must contact
The National Center for Missing Children
1-800-THE LOST (1-800-843-5678).

If the child has been taken from the U.S. to another country, the Central Authority will assist you in processing the papers and the hiring of an attorney. Some countries provide free or low cost attorneys. In cases where children are abducted to the U.S., NO FREE ATTORNEYS ARE PROVIDED. You are solely responsible for obtaining and paying your own attorney in the United States.

TOP OF PAGE

OPERATION OF THE HAGUE CONVENTION

The Hague Convention applies to parents who were exercising their custody rights at the time of the abduction, where the child in question is below the age of 16 and was habitually residing in the country from which he was taken. The Hague Convention provides for assistance where the remaining parent has lost his visitation rights, but does not require the return of the child. Custody rights need not be in the form of a court order for the Hague Convention to apply.

Where all of the following conditions are met, the Hague Convention mandates the return of the child to the country where the child was taken from, if APPLICATION IS MADE WITHIN ONE YEAR. If application is not made within one year, the court in the country where the child is removed has discretion whether or not to return the child. If application is made within one year, the court must return the child, unless one of several narrow exceptions apply. Among these are that the child would be at "grave risk" if returned to its home country.

The Hague Convention specifically provides that the court is not to decide custody, but is simply to return the child to its home country, where any custody issues can be taken up there.

On the whole, the Hague Convention has worked very well and has been an extremely positive step in deterring abductions and promptly returning children when they are abducted. Statistically, the return rate has been very high. As in any other case, however, each case is different, and no guarantees of a return can be made. To assure your best chance that the Hague Convention will be followed as it was intended, it is best to obtain a competent attorney as soon as possible.

TOP OF PAGE

ENFORCEMENT

• Enforcement

MODIFICATIONS

• Modifications