When child custody is contested, it becomes one of the most important aspects of any divorce case. As this issue is addressed legally, it is vital to your case that you have a qualified, experienced attorney by your side. Not only will he or she have the expertise to explain how the law applies your case, but your divorce lawyer will also have experience with similar cases and clients that he or she has successfully helped in the past.
The Proper Legal Term In Washington State: “Residential Schedule”
In Washington State, the legal system does not actually use the term “child custody.” Rather, they refer to child custody as “residential schedule.” The parent who has the child or children living with him or her for the greater portion of time is referred to as the “primary residential parent,” while the other parent is referred to as the “non-residential” parent. Therefore, when a parent “has custody,” what is really being said is that he or she is the “primary residential parent.”
Three Legal Aspects of Child Custody
Each of these three legal aspects will need to be settled during the dissolution process (as well as parentage and “support and custody” cases):
Residential schedule – Also referred to as a parenting plan, this determines with which parent a child or children will reside every day of the year, including holidays, summer, vacations, and so forth.
- Decision-making authority – This determines which parent is given the authority to make major decisions regarding the child or children. Most often decisionmaking is joint.
- Restrictive factors – Sometimes there are reasons a parent’s time with his or her children needs to be limited in some way. This is addressed in a parenting plan.
Determining Factors of a Child Custody Dispute
If there is a child custody dispute in a divorce case, the court seeks to settle the issue by examining what is in the “best interests” of the child. As a result, the court has fairly broad discretion in determining the end result. In terms of legal factors, the court will consider the following statutory factors:
the relative strength, nature and stability of each respective parent’s relationship with the child;
the prior agreements of both parties;
each parent’s prior history of and future potential for performing parental functions in regard to their child or children;
developmental state or emotional requirements of each respective child;
the child’s relationship with siblings or other adults with whom the child has developed a noteworthy relationship;
the child’s involvement in various significant activities, such as school, etc.;
the wishes of a sufficiently mature child in the matter of their living situation (though it is important to note that the court is not bound to accommodate those wishes, and a child does not get to legally “choose” between parents)
Contrary to popular belief, the court generally does not take into account the following:
marital conduct that led to a divorce
Parental Agreements Regarding Child Custody
Child custody does not always have to be a subject of dispute. If the parents are able to reach an agreement regarding the residential schedule/parenting plan, the topic simply becomes a matter for court approval instead of court intervention. In fact, the court prefers this result, as it typically means the parents have worked together to determine what they truly believe is best for their child(ren). If there is a dispute regarding child custody, the court will send the couple through a mediation process, where they must attempt to resolve their disagreements prior to resolution by the court following a trial.
It is important to remember that informal agreements regarding the residential schedule (including a pattern that is followed whether or not both parties technically “agree”) often set the pattern for the permanent schedule. This is because the court must consider which custodial arrangements are “least disruptive” to a child, and the status quo, especially one that has been followed by informal agreement, is often viewed as least disruptive.
Also, simply agreeing to “shared custody” or a 50/50 Parenting Plan is not always the plan that is best for your children even though it sounds easy and may minimize conflict with the other parent. Such a plan impacts the schools the children will attend, the financial aspects of child support, and the physical, emotional and mental well-being of the children.
While it is not always possible, coming to an early agreement regarding the residential schedule can have the collateral effect of reducing the overall conflict in the divorce. But in making these decisions, it is vital to have the advice and assistance of an experienced divorce attorney. Their legal understanding and history with cases like yours allows them to provide valuable information and ideas as you negotiate a parenting plan or ultimately proceed with the litigation process. Rather than attempting to handle your case alone, seek out the assistance of a qualified, experienced divorce lawyer and make sure that you have all of the information you need to come to an agreement that will be in your child’s best interests.
If you’re interested in speaking with a family law attorney, either Geoff Gibbs or Laurie Ummel would be more than willing to sit down with you and talk through your case. This consultation is available to you free of charge. All it takes is phone call or online contact. We would be happy to talk with you about your options and how to best address your child’s needs and your needs as you navigate the process of a divorce or custody case.