Where Are The Children Going to Live?
How much time the children spend with Mom, and how much with Dad, is many times the most difficult and heart-wrenching decision in a divorce. Parenting is a zero sum game: every day little Joey spends with Dad, is a day he does not spend with Mom. The parenting plan – and the number of overnights – drives child support and, to some extent, maintenance. It drives who gets the house, frequently. It drives whether or not the mother (almost always the mother) gets to move the children, if she wants to move, now or five years down the road. It is a complex and profound decision, and there is no statutory solution.
It used to be simple. When I started in 1995, most of the time, the children lived with Mom, and saw Dad every other weekend. That has changed over time: nowadays, I am seeing more and more true 50/50 parenting plans, both in court fights, and in agreed divorces. The culture is changing. More and more fathers are involved with their children; more and more mother work; more and more fathers expect that they will be an equal part of their children’s lives. If this is a concern for you, either good or bad, call me. How it impacts your divorce depends on the facts in your case.
There is some research on how well 50/50 parenting plans work out. For example, read the 2017 article by Linda Nielsen, Shared Parenting Works; or Arguments for Equal Parental Responsibility, by Dr. Edward Kruk. Entirely anecdotally, my clients tell me it works out well, once they got used to it.
Relocation is always an issue, and will continue to be an issue in 50/50 parenting plans as well. For the past couple of years, it was almost impossible to relocate if there was a 50/50 parenting plan. That is changing as of the end of July 2019. There are changes to RCW 26.09.520, which (in 50/50 parenting plans) gives the relocating parent a presumptive right to move. See my post on the changes to the Relocation Act.
It is critical to have a parenting plan that works. One example is here: 50-50 Parenting Plan.
What Are The Factors?
There are a number of factors the courts use. The statute listing them is 26.09.187. There are seven different factors, with the first one (The relative strength, nature, and stability of the child’s relationship with each parent) being the most important one. That frequently boils down to which parent did the majority of the work. If one parent was a stay-at-home parent, and they aren’t into drugs or alcohol, that parent is usually going to be the primary custodial parent.
But not always. I have – successfully – argued that, even in cases where the mother was a stay-at-home parent, the court should consider the parenting plan going forward. And that means dividing the time 50/50. I have attached a draft 50/50 parenting plan here; there are other models as well.
If you are the primary residential parent now, this means you need to give careful thought to how you deal with the case. Again, how this impacts your case, depends on the facts, and we need to talk.
How Old Do Kids Have To Be To Get A Choice?
Children, technically, get a choice only when they turn 18 years old. However – the older the kids are, the more likely it is that the court will listen to what they want. At about age 11 or 12, they start to get a voice. The courts will pay a lot of attention when the children turn 14 or 15. And I have yet to see a court do something different than what a 17 year old wants. (It’s possible; but unlikely.)
Do My Kids Get A Vote?
You will never get the kids to testify in court. Judges and commissioners strongly dislike that and it will go against you. Children testify through evaluators: the parenting evaluator talks to the kids, and then they tell the court what the child wants. BUT that means you have to get a parenting evaluator on board, as soon as possible.
Parenting and Custody Case Law:
- The “best interests of the child” control when determining a parenting plan. In re Parentage of J.H., 112 Wn. App. 486, 49 P.3d 154 (2002), review denied, 148 Wn.2d 1024 (2003); In re Parentage of Schroeder, 106 Wn. App. 343, 349, 22 P.3d 1280 (2001)
- Stability of the child’s environment is crucial. In re Marriage of Wicklund, 84 Wn. App. 763, 932 P.2d 652 (1996); In re Marriage of Kovacs, 67 Wn. App. 727, 840 P.2d 214 (1992); In re Marriage of McDole, 67 Wn. App. 884, 888, 841 P.2d 770, (1992)
- The tender years doctrine is no longer recognized as an important basis for determining residential placement of a child (thereby overruling cases which established the tender years doctrine such as In Re Palmer, 81 Wn.2d 604, 503 P.2d 464 (1972); Horen v. Horen, 73 Wn.2d 455, 460, 438 P.2d 857, 443 P.2d 654 (1968); Patterson v. Patterson, 51 Wn.2d 162, 316 P.2d 902 (1957); and Chatwood v. Chatwood, 44 Wn.2d 233, 266 P.2d 782 (1954)).
- The court must articulate the basis of its decision based on the statutory factors. In re Marriage of Janovich, 30 Wn. App. 169, 172, 632 P.2d 889 (1981); In re Marriage of Murray, 28 Wn. App. 187, 622 P.2d 1288 (1981)
- The Child Relocation Act (CRA) does not apply to a petition for relocation when the child’s residential time is designated equal or substantially equal in a parenting plan and when the proposed relocation would result in a modification of this designation. In Re Marriage of Ruff and Worthley, 198 Wash.App419 (Div II) (2017). This means: the relocating party has to file a modification petition and meet the adequate cause burden before pursuing their relocation request, which is very hard to do.