Washington Child Custody FAQ
By Erik Bjornson, Attorney at Law

Overview: In a divorce action, the visitation schedule will be determined by court order either through settlement or though trial. The court has wide discretion in determining the amount of visitation each party receives and which parent will be able to see the children at different times. The court can also order that visitation be limited and supervised.

  • How does the Washington State Courts determine who has the children in a divorce?

The court will enter a "Parenting Plan" which is a court order. If the parties cannot agree, the courts will often appoint a guardian who will make a written report to the court their assessment of who is the preferred parent for the children to reside primarily with. The court will then make a decision based on the report of the guardian and other information presented to it from the parties and their attorneys.

  • My spouse and I want to have flexibility in our parenting plan. We don't want to be restricted by a court order as to when we can and cannot see the children. Can't we simply state in the plan that our visitations will occur with the children "as agreed upon?"

The problem arises when a disagreement inevitably occurs. When this happens, the custodial parent could unilaterally decide that there is not "agreement" and deny the other parent visitation. Thus, open provisions in parenting plans often lead to unnecessary and costly litigation in the future. They almost always hurt the non-custodial parent who must rely on the good graces of the former spouse to have any visitation with the children.

  • My former spouse has unfairly kept me from seeing the children and is in violation of the parenting plan. Do I still need to pay child support?

Yes. In Washington, the obligation to pay child support is not affected by the other parent's failure to comply with the parenting plan. You should consider seeking an attorney to assist you in bringing a motion before the court to hold the other parent in contempt for violation of the parenting plan.

  • My child has told me that he wants to live with me. However, my former spouse will not agree to this change. Can't a child decide at a certain age who they would like to reside with?

The opportunity for the child to tell the court their preference as to who they would like to reside with is usually through a guardian. The courts generally frown on parents encouraging the children becoming directly involved in the litigation. As the children get older, they are going to have larger say as to the parent they will reside with.

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