The Importance of Custody Issues
Rarely is anything more important than your children. It can be very painful to spend less time with your child than you believe is appropriate. I once heard a foolish and childless managing partner in a law firm belittle a family law attorney because in his opinion she did not have the pressure of helping clients make important decisions like he did with his business clients! Family law attorneys not only help their clients make many important decisions about their net worth, they help them with the often more difficult questions and more important issues concerning their children. Child Custody issues are important to anyone involved in a parentage action (formerly known as paternity) or a dissolution (divorce) of marriage proceeding involving children.
Glenn is an Experienced Washington Custody Attorney
As an attorney, Glenn has been helping parents protect their children since 1990. Even if you are fortunate to be in a relationship where both parents are good parents and where you both put the children first, there are many difficult and complex issues that need to be resolved to achieve an effective parenting plan. Parents and children often suffer from ambiguous and shoddily drafted parenting plans. Glenn has helped many clients obtain finely tuned, specialized parenting plans individually designed for their parenting style and the best interests of their unique children.
No one knows your children as well as you do. No one knows what kind of parent you are better than you do. That said, there is a modest amount of scholarly research regarding what children go through during a divorce and that research is often influential to investigators and the court. Often parents, even very good parents, lack fundamental knowledge about child development and do not see how their actions complicate their children’s lives. Glenn can help you learn from the research on children in divorce and from general resources offering focused parenting advice.
Glenn’s Approach to Custody Cases
Custody disputes are as difficult and complex as the myriad of interactions and consequences that occur in any family. For that reason, the first thing Glenn does is listen and try to learn about your concerns and your family’s dynamics. Rarely do families remain stagnant; they change and so Glenn continually reevaluates what is going on in your parenting arrangements. Glenn knows not to prejudge parents or assume any one family should look like another family.
Throughout your case, Glenn focuses on the following:
1) Safety. The safety of the children and parents is of primary importance to Glenn. Sometimes it is necessary to take emergency action, rushing to court immediately to explain the emergency and obtain the protections you and your children require. Other times, it is important to not escalate the tensions in a family but still guide you through a mine field of explosive issues and make sure both you and your children are protected.
2) Listening. Glenn listens and learns from you what is important, what is working and what is not working in your family and in your case. Unless Glenn knows your goals and challenges, he cannot properly advise you.
3) Education. You always have choices and part of Glenn’s job is to keep you aware of your options and to advise you of the costs, risks, and consequences of any particular course of action.
4) Support. Few experiences are as stressful as a divorce. Everyone going through a divorce should strongly consider counseling so they can make the best decisions possible. Few of us have the expertise to work on our own cars anymore and we do not hesitate to use mechanics with their special knowledge and tools. Similarly, none of us come prepackaged to handle what goes on with us mentally and emotionally while our relationships go through dramatic changes. The wise person uses the skills, tools and insights of an expert in the emotional side of relationships and divorces.
5) Improvement. Often attorneys and clients focus too much on what is wrong with the other parent and forget to take the time to improve their side of the parenting equation. Everyone can learn more about child development. Everyone can gain insights about how they can minimize pressure on their children and the negative perceptions of the other parent.
6) Preparation. From day one you and Glenn will prepare for the possibility of resolving issues at trial while embracing every opportunity to negotiate powerfully and settle intelligently. Inevitably, the sprint of negotiations ends in a better result if you have put in the miles to prepare you for a full marathon if necessary.
Consider Collaborative Law
As part of educating and supporting his clients, Glenn insists on informing everyone about the availability of the Collaborative Law Process to resolve their differences. You can learn much more about Collaborative Law if you click on the “Collaborative Law” bar at the top of the home page, but a short introduction is presented here:
1) Traditional law is built on a war model
2) The rules of traditional law often reward those who fight needlessly or who attack unnecessarily. Such attacks cause counter-attacks and drive parents apart when they could be coming together.
3) Traditional courts try their best but necessarily work with very limited information and parents resist solutions imposed on them by judges, etc. Any court solution is expensive.
4) For some enlightened parents, such as those interested in co-parenting, respectful of the other parent, and those aware of the common goals and interests they share with the other parent, and the benefits of working together, Collaborative Law offers a different set of rules.
5) Collaborative Law changes the rules so parents are rewarded for cooperating, facing their differences together, brainstorming creative solutions, and evaluating solutions in light of their shared and respective goals and interests.
6) Collaborative Law is not for everyone. But for those who recognize its benefits and for those capable of succeeding in the Collaborative Process, it offers a generally superior means of resolving differences, superior to litigation, trials, traditional negotiations and mediation. Collaborative Law results in less stress for the parents, less consequences to the children, and promotes habits and skills that will be useful as new issues arise in the years ahead. Both parents will have important roles with the children for the rest of the parent’s lives. The goal is for the parents to be able to be together when the children graduate, get married, give birth to your grandchildren, not still at war with each other.
7) Collaborative Law is the opposite of what traditional family law attorneys do, even if they are well intentioned, reasonable, friendly, and “cooperative” because Collaborative Law requires specialized and repeated training and the formal written changing of the fundamental rules of how the case is handled. Many people and attorneys like the sound of the word “collaborative” but have not made the investment to become even minimally trained and are not members of Spokane County Collaborative Professionals, Collaborative Professionals of Washington or the International Academy of Collaborative Professionals. Glenn is a member of all three organizations, is highly trained, and is a community leader in Collaborative Law.
How Do I Get Started?
You probably have some ideas of how you want custody arranged. Glenn offers a free half hour consultation to answer your questions, learn a little about you, and to start evaluating your options. At the end of your consultation, you will have at least a tentative map of the road ahead.
Parents often are focused on “custody” but that term actually has almost no meaning in Washington Divorce Law any longer despite its continued use by the public, attorneys and judges. The Parenting Act of 1987 replaced some older legal concepts such as the “tender years doctrine” with a focus on the best interests of the children. The Parenting Act does not mention “custody” and “visitation,” and instead provides for parenting plans that contain a residential schedule that should specify who the children reside with at any particular time.
So What is a Parenting Plan?
A parenting plan is a written court order, signed by a judge or commissioner, and either agreed to by the parents or decided by the court, that deals with parenting arrangements for minor children. There are many parts to a parenting plan. Some of those parts are discussed below:
1) Residential Provisions
These are the details about who the children reside with, including holidays, birthdays, summers and vacations. In 20 plus years of working with parenting plans, Glenn has lots of practical advise about how to structure the residential provisions to avoid future complications. Sometimes, particularly when there have been long absences or harm done to a parent and child’s relationship, the residential schedule is conditioned on improvement of that relationship and the amount of time a parent sees the child increases over time.
In appropriate situations the parenting plan can limit a parents access or rights to the child due to abuse, neglect, and other negative behaviors. Often the court orders or the parties agree that certain rehabilitative steps or hurdles have to be accomplished before the limitation is removed. The court has broad discretion to impose restrictions, but the legislature has listed some circumstances when the court may impose limitations, including:
a) long-term drug, alcohol or other substance-abuse problems
b) a long-term emotional or physical impairment
c) few or no emotional ties between the child and parent
d) abusive use of conflict
e) withholding the child from the other parent without a good reason
f) domestic violence and other abusive behavior
g) sex offenses
No contact with children is permitted for persons determined to be sexual predators. The legislature in RCW 26.09.191(2)(c) states:
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.
3) Decision Making
Glenn feels sometimes too little attention is paid to these provisions. Besides residential time with your child, isn’t making decisions about your child the most important aspect of being a parent? Often parenting plans will order the parents to have “joint decisions” but fail to explain what that means and are not clear about which decisions require “joint decision making.” A little more attention to this area can help prevent future disputes. In appropriate circumstances, a parent can be prevented from participating in decisions about the child.
4) Alternative Dispute Resolution Process
This is another section that is often given limited attention but which, if carefully drafted, can pay huge dividends. Careful drafting can help you to avoid future expense and conflict. In appropriate circumstances, the parents may be ordered not to use an alternative dispute resolution process. The Legislature provides some relevant requirements in RCW 26.09.191 which reads 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.
5) Special Provisions
The scope of a parenting plan is nearly boundless. You know better than anyone else the types of problems you have had with the other parent in the past and what your children need to be safe and secure. While black and white words do not always control behaviors or change personalities, they can help provide you with enforceable language that addresses important issues, and thus hopefully diminishes bad behavior. For example, special provisions can address the following topics and many others:
- introduction of children to new partners
- supplying of clothes on visits
- homework responsibilities
- drug and alcohol treatment
- future changes in parenting plan
- interfering with other parent’s time
- grandparent contact
- involvement with doctors, counselors, school
- private school attendance
- airplane flight arrangements
- provisions beyond relocation
- general principles that govern parenting and overall interests of the parents regarding their children
- protections about use of pornography
- gun use and hunter’s education
- driver’s education
- where the exchanges will occur
- maintenance of emails
- contact between child and parents by cell phone, emails or Skype
- right of first refusal
- attendance at parent teacher conferences, doctor visits and sporting events
- notice of a parent’s absence or inability to provide direct care
- children’s dating
- participation in collision sports
How Does a Court Decide the Residential Schedule?
The court wants the child to have a loving and stable relationship with his or her parents, if possible. Often the court will give the greatest amount of residential time to the parent who has been most involved in performing parenting functions, caring for the child’s daily needs, because will probably conclude that parent and child’s relationship is strongest and provides more stability.
The court will consider any relevant information but it may not give all information the same weight or importance. Factors the court will consider include:
a) Agreements about parenting
b) How well each parent has performed parenting functions in the past, and their ability to do so in the future.
c) The child’s relationships with siblings and other relatives
d) The child’s age, developmental and educational needs
e) How involved the child is socially and with extra-curricular activities in one setting vs. the other
In trying to achieve stability for the child, the court will craft a plan it believes:
a) Provides for the child’s physical needs and emotional health
b) Suits the changing needs of the child but minimizes the need to alter the plan
c) Sets forth the respective authority and responsibility of each parent
d) Minimizes the child’s exposure to parental conflict
e) Encourages agreement between the parents
f) Protects the best interest of the child
g) Provides sufficient clarity and specificity so the plan can be understood and enforced
h) Takes into consideration any needed limitations on the parents
For cases where there are no RCW 26.09.191 limitations, the Washington State legislature has written a law listing some of the things the court is to consider. RCW 26.09.187 provides that:
(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 (emphasis added).
The rules of evidence apply to divorce and paternity proceedings. Evidence can be many things including documents, your testimony, and the testimony of others with eye witness information. Experts about parenting, mental health, children, and substance abuse can all qualify to give their opinion. Investigators, parenting evaluators and guardians ad litem may all testify at various levels of expense and influence on the court.
What If the Other Parent Does Not Follow the Parenting Plan?
I once heard a very good litigator argue, “Court orders are not made of tissue paper nor intended for a parent to sneeze on.” Parenting plans are court orders. Courts have the inherent power to enforce their orders. A court will be interested in whether a parent has violated specific language of any parenting plan, but will also be concerned about the motivations of anyone seeking a finding of contempt. Parents are suppose to follow the parenting plan in good faith. Violations of a parenting plan are theoretically a criminal act. In family court, the judge can configure a wide range of remedies when someone violates a parenting plan, including make-up time, and require the offending party to pay penalties and your attorney fees.
What Do We Do Before There is a Final Parenting Plan?
It may be a number of months before your case is finalized. Meanwhile, your children need to be cared for and in appropriate relationships with their parents. The Parenting Act allows for a “temporary parenting plan” until a final parenting plan is signed by the court. If needed, a hearing can be set for the court to decide on a temporary plan. Evidence at a temporary hearing is usually limited to written documents, though you can argue orally how the court should decide temporary orders. A temporary plan is not suppose to control what a court does in regards to a final plan, but often the temporary plan has a significant impact on the final plan because it establishes a status quo and can be an expensive process that exhausts the parents ability to litigate through to trial.
The court will want to know at least the following:
a) Where the children have lived for the past 12 months, and since birth
b) Who has provided what parenting functions
c) Each parent’s work schedules now and for the past 12 months
d) The children’s schedules now and over the last 12 months
e) Facts effecting the children’s health, safety and emotional stability
How Do I Change a Parenting Plan?
A parenting plan can theoretically be changed or modified. The law in this area is complicated and the costs sometimes reach the levels spent on the initial proceeding. Extreme care and consideration should be exercised before filing a petition for modification of a parenting plan. Glenn has modified many parenting plans. Often the dispute resolution process in the parenting plan must be exercised before proceeding with the modification.
How Can I Improve My Chances In a Custody Fight?
You should maximize your time and experiences with your children. You should document your involvement. If you have been the person who gets them up in the morning, washed, fed, dressed, transported to day care, to school, home, fed, to bed and comforted at night you’ll probably have the upper hand when it comes to a custody fight. If you are also the person who helps with homework, conferences with teachers, communicates with doctors, comforts and nurtures the children, and you do so while not intoxicated, mentally ill, or viewing pornography, it will help your case immensely!
Obviously if you move away from the children, it will be harder for you to perform parenting functions. Obviously if you always work overtime, it will be harder for you to perform parenting functions. Obviously if the other parent is blocking you from having contact with the children you need to seek legal advice immediately to get back into a position of being able to perform parenting functions.
Everyone can learn more about parenting. Every library has a ton of free and useful resources. The internet is full of free information that can help you a) improve your parenting skills b) learn about the needs of children and c) gain insight in how you might better handle the stress of the changes you and your children are facing.
Which State Court Controls My Case?
Because parents and children move from state to state, it is important that you find the state that has jurisdiction or power to decide your case. The Uniform Child Custody Jurisdiction Enforcement Act sets forth how courts decide whether they have jurisdiction or not. The “home state” is often the state with jurisdiction; the “home state” is usually the state where the child has lived for the last six months but there are exceptions and an experienced family law attorney like Glenn should be consulted before you decide the case can be decided by a Washington court. Just because Washington was the “home state” it can lose home state status so it is important you take quick action.
What if the Children Are Abducted to a Foreign Country?
Sometimes a parent will take the children to a foreign country either innocently or with intent to abduct the children. Either way, returning the children to the United States may require special procedures. Which procedures are needed can depend on whether the foreign country is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. You can find out if a country is a Hague country by contacting the State Department at Office of Children’s Issues, CA/OCS/CI, Room 4811, Department of State, Washington, D.C. 20520-4818. If the child is in a Hague country, other than the United States, you can file an application to have the U.S. Central Authority assist in the return of the child. You apply by contacting The National Center for Missing Children, 1-800-THE LOST (1-800-843-5678). If the child is in a non-Hague country, you should hire a good attorney in that country immediately.
Common Questions and Myths
1) Does my child get to decide where to live?
Often people believe children get to decide where they live when they reach a certain age. Children never get to decide where they live. That said, a court can consider the wishes of a sufficiently mature child. Exactly what age that is, depends on the individual child and judge. Exactly how and whether a judge even ever considers the child’s wishes, depends on the judge. Some, if not most, judges hate when children are involved in what are really disputes between parents, and avoid ever communicating with a child. Some judges and commissioners will meet with a child even if the issue is just a temporary order issue. A parent needs to carefully consider whether involving their children to this level in their dispute with the other parent is wise. It is often assumed that such involvement is bad for the child. Letting a child decide can educate children about how to manipulate their parents. (“If you don’t buy me a car, I’m going to change my mind about who I want to live with!”) More than once, a child has said something very different than what a parent expected the child to say. One way the wishes of a child are often considered is when there is a guardian ad litem or parenting evaluator involved in the case. The evaluator may meet with the child and learn what the child thinks and feels. However, the evaluator may think a parent has coached the child to have a certain opinion. In short, the involvement of the children is a complex area that should only be entered with extreme care. Parents should also be aware that children want to be loved and often tell parents what they think the parents want to hear.
2) My child doesn’t want to visit, does he have to?
Many times a child expresses reluctance to exercise visitation. This is a serious situation that needs to be carefully evaluated. Perhaps there is something serious going on in the other parent’s household or the child is telling you want he/she thinks you want to hear. The first step however is not to stop visitation, unless it is a true emergency and then it is best to immediately get an ex parte order suspending visitation.
3) The Father doesn’t pay child support, can I stop visitation?
Absolutely not if that is the only reason. It is contempt of court to tie child support and parenting plan issues together. Certainly the paying parent should pay the ordered support. However, you will potentially get in serious trouble if you stop visitation just because the paying parent does not pay.
4) Doesn’t Washington Law Favor Women?
The short answer is “no.” There is nothing in Washington law that favors one gender over another, on paper. That said, the court considers who has the closest relationship with the children and who has performed the most parenting functions (things like washing, feeding, nurturing, etc.) Sometimes both parents claim they have been the primary caretaker of the children. The court may then look at who has been working the most because if you are at work, you are probably not performing parenting functions. Our society and some families still retain traditional divisions of labor along gender lines and make stereotypical divisions regarding who performs parenting functions. Thus the families who fit the stereotypical facts of having a stay at home Mother and a Father working full time will have a more difficult time proving the Father has performed the most parenting functions. However, many families do not fit traditional stereotypes and Glenn has worked with many clients where the Father was the primary caretaker. In addition, judges are humans. What goes on in their subconscious is a product in part of their childhoods. How many judges were raised primarily by their Mothers?
5) The Other Parent doesn’t work, shouldn’t I get custody?
Being able to provide financially for a child is just one aspect of what it means to be a parent and is much less important to many judges than how well that parent performs parenting functions.
6) Isn’t a 50/50 Plan the Best?
For some families the answer may be yes. The Legislature has spoken recently on the issue. RCW 26.09.187(2) 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.
Unfortunately, the above statue does not give much guidance about how to determine what is the “best interests” of the child in these circumstances. The research of some social scientists suggest that a 50/50 plan does not work where there is high conflict between the parents and if ordered, is often not followed. Some other studies suggest it is common for an abusive parent to insist on 50/50 even though he or she has not performed anywhere near 50% of the parenting functions in the past. If you are interested in a 50/50 residential time plan, it is best to consult with an experienced family law attorney like Glenn to see if that is realistic.
7) Can’t We Just Have a Parenting Plan That Says “To Be Agreed”?
Years ago it was common to see final parenting plan where courts allowed parents to be vague about important topics such as who gets the children for Christmas Eve and Christmas Morning. The entire parenting plan might say little other than , “to be agreed.” Naturally, many of those kind of plans resulted in the parents returning to the court over and over when they could not agree. A better approach, and one that is usually now required by courts, is to have clear, specific, language about who the children are with every second of the year. You can always potentially agree, to do something different than what your parenting plan says (you should get such agreements in writing). Some parents never look at their parenting plan again after spending weeks deciding what it should say. A well crafted, clear and specific plan is a useful tool however even if you are highly cooperative. If suddenly there is an issue you can’t agree on, then the plan will be the fall back determinative answer that also prevents a trip to the courthouse.
8) Can Grandparents or Other Third Parties Get Custody?
In appropriate circumstances yes, but those circumstances are limited. In order for the court to place the children with someone other than their parents (in response to a third party petition) it has to find both parents unfit or unwilling to meet parental responsibilities. Such cases often involve parents who are not performing parenting functions adequately because of drugs, alcohol, mental illness, incarceration or other disabilities. If you can show the parents are not providing proper care, you must also show your environment is in the best interest of the children.
High Conflict Child Custody Cases
Glenn thinks he is particularly well suited for the high conflict child custody case because he has probably experienced every trick in the book, will do everything within legal, ethical and financial bounds to promote your interests, and has also had success deflating the abusive and bully tactics of mad dog attorneys. Glenn has gone toe-to-toe with the meanest, nastiest attorneys in Washington, is not intimidated by anyone, and knows courts are annoyed by gamesmanship and uncooperativeness and appreciate attorneys who can efficiently present facts and have wisdom in their arguments. When there is sexual abuse, domestic violence, drug or alcohol abuse, lines have to be drawn and appropriate limitations need to be implemented. It is important that such cases are prepped and started appropriately so please contact Glenn as soon as possible if your case is heated.