Child Custody FAQ
- What is child custody?
- What is a residential schedule?
- What is a parenting plan?
- Who creates the parenting plan?
- What is "joint custody" and "primary custody"?
- What can I do to have joint custody?
- Do mothers always get primary custody of the children?
- What goes into determining a residential schedule?
- 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.
- Any agreements the parents have made.
- Each parent's ability to perform parenting functions.
- The emotional needs and developmental level of the child.
- The child's relationship with siblings and other significant adults.
- The child's involvement with his or her school or other activities.
- The wishes of the parents.
- The wishes of a child who is sufficiently mature to express reasoned and independent preferences.
The term "child custody" is synonymous with "residency" or "visitation." The Washington statutes actually try to stay away from the term "custody" because it has an antiquated implication that the child belongs to one parent or the another. Instead of "custody," the statute will generally use the term "residential schedule."
A "residential schedule" is a calendar year schedule that sets out specific times the child will spend with each parent. It is divided into a "school schedule," a "summer schedule, a "holiday schedule," etc.
A "Parenting Plan" is a court order that establishes the residential schedule as well as setting terms and conditions for raising the children. For example, the parenting plan contains provisions for making decision-making for major decisions affecting the child. It also contains provisions for resolving disputes that may arise in carrying out the parenting plan.
Most often the parents work out the parenting plan with the help of their attorneys. If the parents cannot agree on a residential schedule, then the court makes those decisions based on what is in the "best interest" of the child.
Although the law does not use the term "joint custody," it is generally understood to mean that each parent has substantially equal amount of residential time. The amount of residential time is determined by how many nights the children sleep in the residence of either parent. If the child sleeps at the home of each parent about 15 nights per month, then they have joint custody. On the other hand, if one parent has more overnights, then that parent has primary custody, more properly known as being the "primary residential parent."
If you agree on joint custody, then the Court will usually go along with it. If you do not agree, the Court will consider joint custody if it in the best interests of the child. This a recent change in the statute, that previously required that the parents have a history of cooperation, and live close to each other. The change in the law will result in judges having more discretion in determining whether joint custody is appropriate, but they will largely continue to rely on whether the parents live close to each other and can parent cooperatively.
No, but they usually do get primary custody because they are more often homemakers. Courts are aware that traditional homemaker and breadwinner roles are becoming increasingly blurred or irrelevant. Even the long-held presumption that working parents are hurting their children because they spend so many hours out of the home is coming under attack. A recent study out of the University of Michigan concludes that non-working mothers only spend 6 hours a week more with their children than non-working mothers.
If a judge decides the residential schedule, he or she will consider several factors, which are presumed to constitute the child's "best interests," including:
- How important is a parenting plan?
- What happens to the Parenting Plan if I relocate?
- Will a drinking or drug problem prevent a parent from having custody?
- Can my in-laws fight me for custody or visitation of the children?
- What if the children want to live with me?
- Can I modify the parenting plan?
- What if the other parent violates the parenting plan?
The parenting plan is probably the most important order that is entered as part of a divorce or paternity action. It establishes the terms and conditions under which your children will be raised until they turn 18 years of age. It is sometimes difficult modify a parenting plan. Therefore, it is important to get it right the first time. I strongly urge parents to consult with an attorney before signing a parenting plan.
If the Parenting Plan does not specifically provide for the contingency of the relocation, it will probably require a modification of the Parenting Plan. Generally, the parent who is the primary residential parent will be permitted to relocate unless the other parent can prove that the children will suffer much more than is one would generally expect in a relocation.
It can be a problem, particularly if the parent does not have the addiction under control. The Court will consider placing limits on a parent’s time with the children because substance abuse impairs decision-making ability.
They will have a difficult time fighting you directly since the Court strongly favors parents over non-parents. The strong preference for a parent was expressed by the U.S. Supreme Court several years ago, in a case in which grandparents sought visitation rights. A non-parent would have to prove that both parents are unfit or that the non-parent has a parental relationship with the child..
The children's wishes are taken into consideration by the Court if they are mature enough to make an informed choice. A child of about 12 years of age is beginning to obtain the level of maturity required. Until a child reaches 18 years of age, he/she cannot simply make a decision.
A Washington court will not modify a Parenting Plan unless there has been a "substantial change in the circumstances" and the modification is in the best interest of the child and necessary. Parenting plans are modified with a parent relocates, changes employment, etc. To change the parenting plan to the extent that there is a change in the primary residential parent, there must either be an agreement of the parents to the modification or there must be a showing that the child's present environment is detrimental to the child'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.
The parent who violated the parenting plan can be held in contempt of court, fined and even jailed. The first time a parent is held in contempt, the court will order the parent to make the child available to make up the amount of time that was missed. If a parent who is designated as a "primary residential parent" is held in contempt a second time in three years time, the non-residential parent can ask the court to change the parenting plan to be named the primary residential parent for the child.
If you have any further questions, contact Allen Glass.
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Copyright © 2007 Allen A. Glass, P.C. All rights reserved.
Revised: 06/01/07.