Divorce and Parenting

The Parenting Act

One of the most difficult parts of a marriage breakup is the effect it has on children. The Parenting Act of 1987, which went into effect on January 1, 1988, attempts to help parents work out a legal arrangement for their children during and after a separation or dissolution.

Although the Parenting Act tries to address the concerns of both the mother and father in allocating their parental rights and responsibilities, the child's best interest is the Act's primary consideration. It eliminates the concepts of "custody" and "visitation," and instead provides a residential schedule that specifically details the time that the child(ren) will reside with each parent. This pamphlet explains the Parenting Act and discusses some of the decisions that will have to be made on behalf of the child(ren).

Application of the Parenting Act

The Parenting Act applies to parents who are married and who are going through or who have gone through a dissolution or legal separation. It applies even if the dissolution is not being contested. For unmarried parents, some of the same concepts involved in a parenting plan may apply, but the situation is different, so an attorney should be consulted.

Revision of Child Custody Laws

The new Parenting Act revises child custody laws. In fact, this new law does not use the words "custody" and "visitation." Instead, it refers to a "parenting plan," "parenting functions" and "residential schedules." Even though the terms differ, the ideas are similar.

A parenting plan is a court-approved, written arrangement that is worked out between parents, or decided by a judge if the parents cannot agree on its terms. It is a legal document now required in Washington for any annulment, legal separation or marital dissolution proceeding where minor children are involved.

The parenting plan has several parts, including sections on residential provisions, decision-making functions, dispute resolution procedures and limitations.

The residential schedule states where the child(ren) will live and what contact they will have with each parent. The decision-making section states who (mother, father or both parents) will make major decisions about concerns such as the child's education, health care or religion. The dispute resolution provisions outline a process for settling disagreements or problems without going back to court. A limitations section may be used to restrict contact by an abusive parent who could harm a child.

A child support section outlines financial arrangements. Other sections may include instructions, identification of the parents, children or other parties, and other provisions or special agreements.

Addressing the Needs of Children

The Parenting Act looks to the present and future needs of children. It tries to define how to best meet their needs. It does so on a functional basis of "who does what," rather than the legal theory of "who has custody."

In general, the purposes of the Parenting Act are to specify the duties of each parent and to identify and try to resolve sources of conflict involving the children during the dissolution process.

The Parenting Act tries to reduce the harmful effects of separation and conflict on children by encouraging parents to keep their children's best interest in mind when working out a parenting plan. This means trying to provide the most loving, stable and nurturing environment possible.

The Parenting Act recognizes it is important for the child to have a relationship with both parents after the marriage ends.

One important goal of the Act is to preserve the parent-child interactions and relationships that exist at the time of the dissolution or separation. Other goals of the parenting plan are to:

Provide for the child's physical care.
Maintain the child's emotional stability.
Provide for the changing needs of the child in a manner that minimizes the need to alter the plan.
Set forth the authority and responsibility of each parent with respect to the child.
Minimize the child's exposure to harmful parental conflict.
Encourage agreement between parents to meet their responsibilities without reliance on judicial intervention.
Protect the best interest of the child.

Another goal of the Parenting Act is to set detailed guidelines and standards. In doing so, this law tries to help parents put together a specific plan for their family upon which they can rely — and, if necessary, enforce — in the future.

Developing a Parenting Plan

In developing a parenting plan, it is important to consider specific parenting functions and each parent's ability to:

Maintain a loving, stable, consistent and nurturing relationship with the child.
Attend to the daily needs of the child, including feeding, clothing, physical care and grooming, supervision, health care, day care, and other needs as indicated by circumstances.
Attend to adequate education, including remedial and other essential education that serves the best interests of the child.
Assist the child to develop and maintain appropriate interpersonal relationships.
Exercise good judgment regarding the child's welfare.
Provide for financial support of the child.

When these issues have been thoughtfully determined, you will need to work on the parenting plan's three major elements: decision-making authority, the residential schedule, and the dispute resolution process.

1. Decision-making Authority. The Parenting Act requires parents to specify who may make major decisions about the child's care. Specific areas of concern are education, health care and religious upbringing; other items may also be specified.

Decisions about these issues may be made by both parents or divided between them, or the parents may arrange, or the court may decide, that only one of them will make these decisions.

A court uses various factors in deciding whether both parents should share decision-making, or if only one of them should have this authority. These factors include how much the parents have participated in past decisions about their children, whether they can cooperate with one another in decision-making, and how far they live from one another.

Even though some major decisions may be designated to only one parent, it is important to remember that each parent may make decisions about day-to-day care and control of the child while that child is living with that parent. In an emergency, either parent may make decisions regarding their child's health or safety.

2. Residential Schedule. Parents will be asked to propose a living arrangement showing the amount of time each child will spend with each parent. Along with school days and weekends, this schedule considers occasions such as holidays, birthdays of family members and vacations. The schedule must be specific about these days and may not simply state "reasonable visitation." Transportation arrangements also may be considered. The court will look for a residential schedule that maintains the most loving and stable relationship between each parent and child. It will favor giving the greatest amount of time to the parent who has been more involved in caring for the child's daily needs, and whose relationship with the child is more stable and stronger.

The court also considers other factors, such as:

The agreements parents have arrived at regarding the residential schedule.
How well each parent has performed his or her parenting functions in the past, and their ability to do so in the future.
The child's relationships with brothers, sisters and other adults in his or her life.
How involved the child has become in his or her environment, including school and other activities.
The wishes of the child (if old enough to express those wishes).
Although the court may permit a child to switch homes frequently, such moving will be considered only under certain conditions including:
If there has been a great deal of cooperation between parents in the past.
If there is reasonable geographic proximity.
If the arrangement serves the best interest of the child.

In all cases, however, the children will live and spend time with each parent as designated by the plan, unless there is a serious problem with one parent which may result in a parent's contact being limited by the court.

3. Dispute Resolution Process. Conflicts may arise in the course of implementing the parenting plan. For example, parents may have disagreements about the plan itself or the care of children after a plan has been approved. Sometimes, these differences cannot be solved by sitting down and talking without help. Therefore, the Parenting Act includes a process in the plan to help clear up questions or resolve disputes.

The parents can decide which procedures to use, and they may even name a particular individual or agency to help them settle disputes. Also, they may use this dispute resolution process to make some changes in their plan.

Among options, parents may use counseling or mediation (a process where both parents meet with a third person to try to work out the problems together). Arbitration is also an option. This method involves a neutral third party, called an arbitrator, who listens to both sides and makes a decision.

Any other dispute settlement process agreed upon by the parents may be used.

Settling issues cooperatively outside of court is usually in the best interest of the children. In fact, only after using a dispute resolution procedure can the parents go to court. (Child support conflicts are one exception; these matters, and restrictions requested because of certain misconduct by parents, are usually settled by court action.) The parents retain the right to have dispute resolution decisions reviewed by superior court.

Temporary Parenting Plan

The child's needs must, of course, continue to be met while parents are trying to settle marital differences. The Parenting Act calls for a "temporary parenting plan" to do just that. This replaces what used to be called "temporary custody."

A temporary parenting plan will operate only until a final parenting plan is worked out and approved by the court.

The temporary plan is the first step in the process of identifying and allocating the parents' responsibility and time with the child. It considers the child's needs, while allowing time for families to adjust to new circumstances.

Each parent may propose a temporary parenting plan. Then, if the parents cannot agree, each makes a sworn, written statement (called a declaration) and the matter is resolved by the court. The declaration filed with the court should address the following:

Where and with whom the child has lived for the past 12 months.
To what extent each parent has taken care of the daily needs of the child for the past 12 months.
What each parent's work and child-care schedules are now and for the past 12 months.
Whether any circumstances exist that might negatively affect the child if the child lives with or visits the other parent.

A permanent parenting plan is signed by the judge at the time the decree of dissolution is signed. It is intended to provide a long-term formula for the parents' care and support of their child. If the parties reach an agreement on the final plan, a final order or decree must be signed by a judge, but not sooner than 90 days after filing and service.

The same form may be utilized for a temporary or permanent plan, but the court makes no presumptions from the provisions of a temporary plan.

Limitations of the Plan

While the Parenting Act tries to have both parents involved in the parenting of their children, there are circumstances when a parent's involvement can pose some risk to the child.

Limitations on a parent's involvement with a child may be made for certain reasons. For example, if either parent has abandoned their child for a long period of time or repeatedly refused to take part in caring for their daily needs, or physically, sexually or emotionally abused the child, it may be possible to arrange restrictions. Serious acts of domestic violence can also cause the court to restrict or eliminate a parent's participation in the parenting plan.

There may be other cases where the court can limit or eliminate a parent's role in the parenting plan if doing so would be in the best interests of the child. Some examples are:

A parent has a long-term drug, alcohol or other substance-abuse problem which has prevented that parent from taking care of the child's daily needs.
A parent has a long-term emotional or physical impairment that interferes with his or her taking care of the child.
There are few or no emotional ties between the child and parent.
The child's psychological development is in danger of being seriously damaged because a parent continues to be abusive or is a source of substantial conflict in the child's life.
One parent has not let the other see the child for a period of time without a good reason.

If one parent claims that the other parent has harmed the child, or would harm the child or the other parent, then this claim must be proved if denied.

Evidence to prove an allegation to the court includes your statements, the statements of others (witnesses), and documents, such as police or court records. The other parent may present evidence to the court to show that the abuse or the bad conduct did not occur, or that the act did not affect the children and should have no effect on the parenting plan.

A parent may request the court to appoint a Guardian ad Litem to investigate allegations and issue a recommendation for residential placement/limited parent contact, if any.

Enforcing the Plan

The law requires parents to deal in good faith. If they fail to do so, the violator could face civil or criminal charges. For example, if one parent fails or refuses to comply with the temporary or permanent parenting plan, or tries to stop the other parent from doing so, the court can enter an order preventing this parent from continuing such actions. Furthermore, the court can require the violator to pay court costs, attorney's fees or other charges as a penalty for not following the plan. Fines or even jail terms (depending on the seriousness of the violation) also may be imposed.

The law specifically states that even if one parent violates the plan, the other parent must continue to perform his or her duties and take appropriate legal action to resolve the dispute. For example, one parent cannot restrict the other parent's residential time because child-support payments are late.

Changing the Plan

A parenting plan can be changed in only a few cases. It may be changed if both parents agree to the change, and if it is in the best interests of the child.

If one parent does not agree to a proposed change, the court can modify a plan only if revisions are made necessary by a substantial change that has occurred in the child's life or in the lives of the parents since the parenting plan was ordered.

Any change in the plan must be in the best interests of the child. Similarly, the residential schedule can be modified if the court finds that the child's present living situation and environment are physically or emotionally harmful.

This pamphlet was prepared as a public service by the Washington State Bar Association. It contains general information and is not intended to apply to any specific situation. If you need legal advice or have questions about the application of the law in a particular matter, you should consult a lawyer.

Washington State Court List of Forms