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.