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Children & Divorce – Child Custody

How does the court decide issues of child custody? Washington uses “the best interests of the child” standard when it comes to decisions about child custody. Under statutory policy, the State recognizes that the best interests of a 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.” Ultimately the “status quo” regarding the involvement and performance of parenting duties is paramount to decisions about child custody and the amount of time that children should spend with each parent.

When it comes to actual decisions about custody, it important to know that “custody” is mainly comprised of the following two types of parental rights: 1) physical custody, and 2) legal custody (i.e., decision making). “Physical custody” is the right to have your children in your home and to spend time with them separate and apart from your spouse. For every action involving children, the court will enter a residential schedule for your children, which is called a “parenting plan.” Your parenting plan will detail when each parent has the children and for which days, 365 days out of every year until they turn 18. It will cover their regular school schedule, summer vacations, holidays, school breaks, and special occasions. It will also clearly detail each parent’s responsibility for transportation and child exchanges. Your parenting plan will also address “legal custody,” which is the right to make decisions about your children. While each plan will usually state that each parent gets to make day-to-day decisions about a child while in their care, the plan will also include the process for “major decisions” such as non-emergency healthcare, school decisions, extra- and co-curricular activities, etc. While most parenting plan require joint decision making, in some instances the court may order that one parent have sole decision making on major decisions due to some issue or deficiency in the other parent’s ability to parent.

In every case involving children it is vital to have a well-crafted parenting plan. Consideration should be given to such issues as how you communicate with your children when they are in the other parent’s home and how you and the other parent will communicate about the children. Parenting plans allow for the inclusion of additional attorney-created provisions dealing with such things as travel (locally and internationally), passports, children’s property, healthcare appointments, access to records, attending extra- and co-curricular activities, etc.

Parenting plan modifications are disfavored by the courts and parents should not assume that they can make changes later. Absent agreement or a few special exceptions, there is a strong presumption under the law that it is in children’s best interest not to change (‘modify’) final parenting plans. With that in mind, it is important to think through issues that may come up in the future before finalizing a parenting plan. Having a trusted and experienced legal advisor to help you navigate and craft a final parenting plan is essential to avoiding foreseeable issues in the future and to ensuring the best possible outcome for you and your children.