What is a Parenting Plan and How Can I Get One?

A "Parenting Plan" is the current legal term for a court order controlling the physical custody and parental decision making as to a child whose parents do not live together.  The same rules apply to the creation, modification and enforcement of  Parenting Plans regardless of whether the parents have been married.

The diversity of children’s circumstances in our society is immense.  Acoordingly the legal system dealing with children's custody requires a good deal of flexibility.  RCW.26.09.003.  Washington law strongly favors parental arrangements, as to both residential schedule and decision making aspects,  that  are decided upon by the parents rather than the court.  For instance, unless domestic violence is an issue, King County Superior Court Local Family Law Rule 16(a) requires parents to attempt to create their own "Parenting Plan" through mediation before they can proceed to trial. Most counties have similar local court rules.  Mediation is successful in the majority of cases.  When the parents reach agreement on a child's residential schedule and other needs, the agreement must be expressed in a state-mandated form (See Parenting Plan form on forms tab above) for the purpose.  The Plan must then be submitted to a judicial officer who approves a Plan by signing it, after which it is permanently filed with the court clerk and thus becomes an enforceable court order the same as Parenting Plan issued by a custody trial court.

Why would I have to go through a "custody trial"?

Custody trials are required only if the parents are unable to agree on a Plan themselves and one or both parents petition(s) the court to resolve the dispute by judicial creation of a Parenting Plan.  Some trial involve both parents wanting custody ("primary residential parent") without allegations of unfitness of the other parent, but most trials result from a parent alleging that some restriction on the other parent's contact with the child is necessary for the child's safety and welfare.RCW 26.09.191 and 26.09.187.

Does Washington have "joint custody"?

"Joint custody" is not a term used in Washington child custody law.  Washington Parenting Plan law and mandatory use forms (see tab above) require that a child's complete future residential schedule until the child reaches 18, including school holidays and other special occasions be allocated betwen the parents.  The residential schedule must be crafted in such a way as to encourage a continued bond between both parents with the child.  RCW 26.09.002.  The Plan must also allocate decision-making authority between the parents.  Joint decision-making is favored over sole decision-making. Sole decision-making is ordered only if the court determines that it is in the child's best interests due to a history of domestic violence by a parent, or other limiting factor.  RCW 26.09.191.  When joint decision making is ordered, the Plan must state what means, including non-judicial means such as mediation, are to be used by the parents to help them resolve future disputes concerning the implementation of the Plan. 

What is a “complex” custody case?

There is no specific legal meaning for labeling a custody case “complex”-- the term “complex” has its ordinary meaning in this context.  Many factors can make a custody dispute “complex”.  Some of the more common factors that may complicate a custody case are:

1. Both parents want primary custody of a child, but both or either have medical, psychological or other personal issues that may impair their ability to function as parents. 

2. One or both claiming parents have moved to at least one other state recently and want to conduct custody cases in different states. 

3. One or both parents are citizens of other countries and the other parent is afraid the non-citizen parent will abscond with the child.

4. The person seeking custody is not the child’s parent and one or both of the parents also wants custody.

Each of these situations is discussed below:

Fitness of Both Parents at Issue.  Custodial decisions must be based first and foremost on the child’s safety.  RCW 26.09.191.  When a parent alleges that the other is not capable of providing primary care of the child, that parent must persuade their concerns are well grounded in fact.  When both parents complain of the other’s fitness, the court must make arrangements based on the judge’s own assessment of the child’s risk.  It is possible but extremely rare that the court determines in a contested custody case between parents that neither parent is capable of providing primary care.  In the vast majority of cases the judge will strive to create a “parenting plan” (i.e. custody order) that maximizes the child’s ability to have good time with each parent.  If a parent poses too great a risk to be alone with the child, the court can order that the high risk parent have only professionally supervised contact with the child.  The court can access various social services, public and private, to assist the judge in sorting out the strengths and weaknesses of both parents:  the court can for instance, appoint a “guardian ad litem” (attorney or other legal representative for the child) or professional “parenting evaluator” to make custodial recommendations to the trial judge.  All custodial decisions that are not resolved by child safety concerns must be based on the mandatory factors stated at RCW 26.09.187.   

Cross-state residence of a child or parent.

Parents who are separating sometimes relocate to another state.  If a Washington court has already made a “parenting plan” (court custody order), the “primary parent” may not relocate outside of the child’s current school district without the consent of the other parent or by “relocation order” of the court if the parents cannot agree and the court must decide whether the children can be relocated.   RCW 26.09.4001-.931.

All states, and the District of Columbia and the Virgin Islands,  have entered into the “Uniform Child Custody and Enforcement Jurisdiction Act” (in Washington:  RCW 26.27 -  to help the state courts sort out which state should make the custody decision, to avoid multiple and possibly inconsistent rulings when the parents live in different states at the time custody becomes disputed.  In general, the state where the child has resided for at least six months preceding filing of the custody case is the state where custody decisions must be made.   RCW 26.27.201.  If the parents file custody cases in more than one state, the judges of those courts must confer to determine which state should proceed and which dismiss its’ custody case.  RCW 26.27.251.
 

International custody determination and enforcement.  

If one parent wants Washington to determine custody and the other wants a foreign nation’s courts to do so, the first factor to consider are treaty provisions between the United States and the other nation.  Eighty-eight (88) countries to date have signed on to the “Hague Convention”, a multi-national agreement concerning the establishment and cross-national enforcement of custody orders. RCW 26.27.411 and link to US State dept site.  

The Washington court can create Parenting Plans that order the parents to make arrangements for a child to travel internationally to spend specified time(s) with the non-primary parent living abroad.

Non-parental custody.

Washington law allows a non-parent to seek custody of a child under limited circumstances.  RCW 26.10.  The parents’ right to custody and control of their own children is constitutionally guaranteed, but not an absolute right.  The state court may intervene and place the child with a non-parent seeking custody if the judge finds that the child would suffer actual detriment by residing with a parent.  The most common “non-parental custody” case is initiated by the grandparents or other care-giving adults who have been providing the child with primary care for some time before seeking a custody order because the parent(s) have abandoned or are not capable of providing adequate care for the child.