How Child Custody and Visitation are Determined in Washington State
First - Let's Use the Correct Terminology
Custody and visitation are terms that are generally not used any longer in domestic law in the State of Washington. Instead, a parenting plan document sets out a residential schedule (and decision making authority of the parents) without reference to the terms custody and visitation. The parent who would have been the custodian in the past is generally referred to as the "primary residential parent."
Here is a parenting plan form:
These definitions are used throughout domestic law in Washington, the Revised Code of Washington Chapter 26 (RCW 26), and are important to know for the purposes of establishing a parenting plan.
Best Interest of the Child (RCW 26.09.002) It is essential to understand the underlying principle of the law that relates to establishing parenting plans for children of divorced or separated parents:
Parents have the responsibility to make decisions and perform other parental functions necessary for the care and growth of their minor children. In any proceeding between parents under this chapter, the best interests of the child shall be the standard by which the court determines and allocates the parties' parental responsibilities. The state recognizes the fundamental importance of the parentchild relationship to the welfare of the child, and that the relationship between the child and each parent should be fostered unless inconsistent with the child's best interests. The best interests of the child are served by a parenting arrangement that best maintains a child's emotional growth, health and stability, and physical care. Further, the best interest of the child is ordinarily served when the existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents or as required to protect the child from physical, mental, or emotional harm.
Temporary Parenting Plan (RCW 26.09.197) means a plan for parenting a child while a domestic case is pending in court.
Permanent Parenting Plan (RCW 26.09.187) means a plan for parenting the child that is entered at the end of a domestic case.
Parenting Functions (RCW 26.09.004) means those aspects of the parent-child relationship in which the parent makes decisions and performs functions necessary for the care and growth of the child. Parenting functions include:
- Maintaining a loving, stable, consistent, and nurturing relationship with the child.
- Attending to the daily needs of the child, such as feeding, clothing, physical care and grooming, supervision, health care, day care, and engaging in other activities which are appropriate to the developmental level of the child and that are within the social and economic circumstances of the particular family.
- Attending to adequate education for the child, including remedial or other education essential to the best interest of the child.
- Assisting the child in developing and maintaining appropriate interpersonal relationships.
- Exercising appropriate judgment regarding the child's welfare, consistent with the child's developmental level, and the family's social and economic circumstances.
- Providing for the financial support of the child.
A Temporary Parenting Plan
The temporary parenting plan is supposed to be one that is in the best interest of the child, as is the permanent parenting plan. In making this determination, the court gives particular attention to the following:
- The relative strength, nature, and stability of the child's relationship with each parent.
- Which parenting arrangements will cause the least disruption to the child's emotional stability while the action is pending.
- All of the factors used to determine residential provisions in the permanent parenting plan, as set out below, are considered.
Permanent Parenting Plan
The residential provisions of a parenting plan are supposed to allow 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. Among the factors that are considered are the following:
- The relative strength, nature, and stability of the child's relationship with each parent. This factor is given the greatest weight.
- The agreements of the parties, provided they were entered into knowingly and voluntarily.
- 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.
- The emotional needs and developmental level of the child.
- 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, and other significant activities.
- 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
- Each parent's employment schedule, and the court shall make accommodations consistent with those schedules.
Restrictions in Parenting Plans
There may be restrictions within a parenting plan if certain conduct has been found to limit a parent's ability to make decisions, perform parenting functions, or that which will have an adverse effect on the child's best interests. The limitations must protect the child from physical, sexual, or emotional abuse or harm that could result if the child has contact with the parent requesting residential time. These restrictions apply to both temporary and permanent parenting plans.
A parent's residential time with a child must be limited pursuant to RCW 26.09.191(1) & (2) if it is found that a parent has engaged in any of the following conduct:
- Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions.
- Physical, sexual or a pattern of emotional abuse of a child.
- A history 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.
The above factors mandate that residential time be limited. However, when a parent's involvement or conduct may have an adverse effect on the child's best interest, the following factors may preclude or limit any provisions of the parenting plan pursuant to RCW 26.09.191(3).
- A parent's neglect or substantial nonperformance of parenting functions.
- A long-term emotional or physical impairment which interferes with the parent's performance of parenting functions as defined in RCW 26.09.004.
- A long-term impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting functions.
- The absence or substantial impairment of emotional ties between the parent and the child.
- The abusive use of conflict by the parent which creates the danger of serious damage to the child's psychological development.
- A parent has withheld access to the child from the other parent for a protracted period of time without good cause.
- Such other factors or conduct as the court expressly finds adverse to the best interest of the child.
How Parents Decide in Comparison to How a Court Decides
When parents agree to a parenting plan, they usually do not consider the laws and all of the factors described above. They create a parenting plan that seems appropriate to them given their personal understanding of their children's needs and their own historic involvement in parenting the children - not the factors set out in the law. This is what should happen. Parents know themselves and their children's needs best. But when they cannot settle, and when the parenting plan is created by a court, the factors described above must be considered and weighed.