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Child Custody Information:
About Contested Custody



Designation of Parental Rights

Determining the Visitation Under the Parenting Plan

Determining a Schedule in Difficult Circumstances




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.



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.



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.


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Gouras & Amis PLLC is a family law firm that practices exclusively in the area of family law. Gouras & Amis attorneys have over 25 years experience in both settling and litigating family law cases.

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Gouras & Amis PLLC
Family Law Attorneys
Emphasizing difficult Family Law cases in the greater
Seattle-Tacoma, Washington area

Creekside at Centerpoint
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Suite 420
Kent, Washington 98032

Phone (253) 395-5552 Fax (253) 395-1022

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