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How Does A Court Decide What is Best for My Children

Divorce is hard and when there are children involved, it can be brutal and emotionally exhausting. There is no issue so difficult as the determination of a final parenting plan, especially when each parent is declaring that he or she is the best person to be designated the primary parent with whom the children should reside the majority of the time.

Sometimes, given the high emotions that are running during the dissolution, parents lose sight that custody is not a battle to be won, but should rather be approached as a puzzle to be solved and that the best approach for all parties in solving the puzzle is cooperation. If you cannot agree on a residential schedule for the children, you will be forced to seek intervention from the Court -- an entity that does not know you, your family, or your strengths or weaknesses and will often enter a plan that at least one party perceives as unfair. A Seattle divorce attorney can help you obtain the best parenting plan for your child.

There are several factors that go into a court's determination of who should have primary custodial status. The result after a temporary hearing may not be the same result that is obtained after trial. Washington Statute RCW 26.09.187 requires the Court to look at 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.

In order to demonstrate to the Court that the foregoing factors weigh in your favor, the Court will rely on 3rd party witness testimony, either in the form of a written declaration or by oral testimony at trial. The Court will often view family members of the parties as "cheerleaders" whose testimony will be given less weight than that of a more objective 3rd party. A good Seattle divorce attorney will help you analyze the best declarations and 3rd party witnesses to present to the Court. Generally, these should include 3rd parties who have observed both parents with the children and/or can attest to the parent's participation in the children's activities such as coaches, counselors, or parents of the children's friends. They may also include various medical records showing which parent was consistently involved in the children's appointments and healthcare, especially if a child has special needs.

The Court can also obtain information regarding the children's best interest by appointing a parenting evaluator to do an investigation and write a report (known as a "parenting evaluation") analyzing the factors discussed above as they apply to the parties. Once a parenting evaluator is appointed, both parties are "under the microscope" and it is difficult, though not impossible, to get the Court to deviate from the recommendations of the parenting evaluator.

Absent some serious deficiencies and contingent on each parties' earnest desire to take care of the children, an equal parenting arrangement should be agreed upon so that the children have regular and consistent contact with both parents. The ability to agree on a parenting plan, whether equal or otherwise, will also serve your children's emotional needs so long as there is no concern about their well-being while in the other party's care. Do not make the mistake of making parenting a "win or lose" situation for no good reason as the only one who truly loses in that situation is the child.

If, however, there are valid concerns regarding another's parenting such as alcohol or drug abuse, mental impairment, or lack of judgment, a seasoned Seattle divorce attorney can advocate for the best parenting plan that addresses those limitations.

A Seattle divorce attorney at Lasher Holzapfel Sperry & Ebberson can set your mind at ease by walking you through the divorce process, helping you gather the most relevant information with respect to the factors outlined above and working with the other party or his/her attorney to devise a parenting plan that will address the children's best interests. Negotiating an agreed plan allows both parties to have ownership in the ultimate outcome of their case and eliminates or limits hostility which, in turn, minimizes the collateral effects on the children. If negotiations fail, it is crucial to have a Seattle divorce attorney represent you in Court. As discussed in my last blog, research indicates that in Washington State, parties who are represented by counsel are likely to be awarded more residential time with their children.

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