The residency of the child is one of the most difficult matters that can be addressed in a divorce or paternity case. There is a different standard for initial case filings as opposed to modification of existing orders. Please click the link for more information on parenting plan modifications.
If a case is being filed for the first time, the first inquiry is whether there are any limits on either of the parents. Allegations requesting limitations or defending against allegations requesting limitations are some of the most contested family law cases. In considering what grounds exist for limitations, RCW 26.09.191 provides the following:
(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.
(2) (b) The parent’s residential time with the child shall be limited if it is found that the parent resides with a person who has engaged in any of the following conduct: (i) Physical, sexual, or a pattern of emotional abuse of a child; (ii) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault that causes grievous bodily harm or the fear of such harm; or (iii) the person has been convicted as an adult or as a juvenile has been adjudicated of a sex offense.
The statute does not define what the limitations on residential time shall be, and the court is given great latitude in formulating a schedule. Sometimes, the limitations may include domestic violence treatment and/or alcohol or drug treatment. Limitations may also include reduced visitation time with the child. No generalizations can be made as each case is different.
Where there are limitations, the statute also limits joint decision-making. RCW 26.09.191 provides 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.
For persons determined to be sexual predators, no contact is permitted whatsoever. RCW 26.09.191
(2)(c) If a parent has been found to be a sexual predator under chapter 71.09 RCW or under an analogous statute of any other jurisdiction, the court shall restrain the parent from contact with a child that would otherwise be allowed under this chapter. If a parent resides with an adult or a juvenile who has been found to be a sexual predator under chapter 71.09 RCW or under an analogous statute of any other jurisdiction, the court shall restrain the parent from contact with the parent’s child except contact that occurs outside that person’s presence.
For cases where there are no RCW 26.09.191 limitations, the statute sets out a variety of factors to be considered by the court. RCW 26.09.187 provides that:
(3) RESIDENTIAL PROVISIONS.
(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. The child’s residential schedule shall be consistent with RCW 26.09.191. Where the limitations of RCW 26.09.191 are not dispositive of the child’s residential schedule, the court shall consider the following factors:
(i) The relative strength, nature, and stability of the child’s relationship with each parent;
(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 as defined in RCW 26.09.004(3), including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
(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.
For many parents, the question of “shared custody” arises. Prior to 2008, the statute permitted such schedules, but only if there was a history of cooperation between the parties. The statute has now changed. RCW 26.09.187(2) now provides as follows:
(b) Where the limitations of RCW 26.09.191 are not dispositive, the court may order that a child frequently alternate his or her residence between the households of the parents for brief and substantially equal intervals of time if such provision is in the best interests of the child. In determining whether such an arrangement is in the best interests of the child, the court may consider the parties’ geographic proximity to the extent necessary to ensure the ability to share performance of the parenting functions.
The statute gives no detailed guidance on what might be in the best interests of the child, other than the parent’s proximity to each other. Each case is different and parties should seek the advice of an experienced attorney.
Contested parenting cases are often very complex, involving allegations and counter-allegations. To assist the court in sorting out the facts, the court has authority to either talk to the child directly, or to have an investigator talk to the child. Each county in Washington State has its own procedures. In King County, the court usually (but not always) has a professional talk to the child. King County has the options of Family Court Services, CASA (Court appointed special advocates), Guardian ad litems, or private parenting evaluators (who are often either attorneys or mental health professionals). Pierce County relies mostly on a system of Guardian ad litems. The statutory authority under RCW 26.09.210 is as follows:
The court may interview the child in chambers to ascertain the child’s wishes as to the child’s residential schedule in a proceeding for dissolution of marriage or domestic partnership, legal separation, or declaration of invalidity. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made and to be made part of the record in the case.
The court may seek the advice of professional personnel whether or not they are employed on a regular basis by the court. The advice given shall be in writing and shall be made available by the court to counsel upon request. Counsel may call for cross-examination any professional personnel consulted by the court.
Contested parenting plans can be very difficult cases. If you are faced with a contested parenting plan, an experienced attorney should be sought early in the case.