Know the Laws: Washington
UPDATED October 1, 2012
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Who can get custody
back to topWho can be part of the parenting plan?
The judge will try to incorporate both parents into the parenting plan. However, if one parent is unfit, a judge can award all of the parenting time and decision making authority to the other parent.*
In addition, a non-parent with a significant connection to the child might be able to ask for custody. A petition for non-parental custody must be filed where the child lives, and only if the child is not in the physical custody of one of its parents, or if neither parent is a suitable caregiver.** Custody will be determined in the best interests of the child.*** For more information see What if I am not the child’s parent?
* R.C.W. § 26.09.191
** R.C.W. § 26.10.030(1)
*** R.C.W. § 26.10.100
back to topCan a parent who committed domestic violence, sexual assault, or child abuse get decision-making powers or parenting time?
Whether or not a parent gets decision-making powers or parenting time with a child may depend on the type of abuse committed and whether or not the parent was convicted in criminal court for the acts of abuse. It can also be relevant if a non-abusive parent lives with someone who has committed acts of abuse.
Any evidence of domestic violence or sex offenses:
In a permanent parenting plan, the judge cannot order mutual decision-making and the parent's residential time with the child must be limited if the judge believes that there has been:
- physical abuse, sexual abuse, or a pattern of emotional abuse of a child.* (Note: if the parent sexually abused the subject child, contact can only be allowed if a therapist/evaluator recommends it);*1
- a history of acts of domestic violence (as defined by law); or
- an assault or sexual assault which causes grievous bodily harm or the fear of such harm.*
- Note: If the parent himself/herself has not committed any of the acts described above but s/he lives with someone who has, then the parent's residential parenting time must still be limited.*2
The types of limitations that a judge can order on a parent's residential time include supervised contact between the child and the parent or completion of relevant counseling or treatment. However, if the judge specifically believes (based on the evidence you present) that limitations on the residential time with the child are not enough to adequately protect the child from harm or abuse, the judge can deny residential time.*3
Convictions for sex offenses:
If the parent has been convicted as an adult of certain sex offenses
(listed here in section (2)(a)
), or if the parent lives with someone who was convicted of these offenses as an adult or juvenile
, the judge must limit the parent's residential time with the child.*4 If the parent was convicted as an adult of more serious sex offenses
(listed here in section (2)(d)
), then the judge has to assume that the parent is a danger to the child and cannot allow contact between the parent and child (unless the parent is able to convince the judge otherwise).*5 If the parent lives with someone who was convicted of these more serious sex offenses as an adult or juvenile,
the parent can only have contact with the child when that person is not around (unless the parent can change the judge's mind).*6 If the parent succeeds in convincing the judge that contact between the parent and child does not pose any danger to the child, the judge might order limited contact with restrictions to protect the child. To read about what a parent must show to convince the judge and the possible types of contact that could be ordered, see sections (2)(f) through (l) of RCW 26.09.191
If a parent has been found to be a "sexual predator" as defined by law, the judge cannot allow contact with the child. If a parent lives with someone (an adult or a juvenile) who has been found to be a "sexual predator," the judge can only allow contact that takes place when that person is not around.*7
* R.C.W. § 26.09.191(1),(2)(a)
*1 R.C.W. § 26.09.191(2)(m)(ii)
*2 R.C.W. § 26.09.191(2)(b)
*3 R.C.W. § 26.09.191(m)(i)
*4 R.C.W. § 26.09.191(2)(a),(b)
*5 R.C.W. § 26.09.191(2)(d)
*6 R.C.W. § 26.09.191(2)(e)
*7 R.C.W. § 26.09.191(c)
back to topWhat are other factors that may limit a parent's right to decision-making or residential parenting time?
A judge may limit a parent’s contact or responsibilities with the child if any of the following factors exist:
- Neglect or non-performance of parenting functions;
- A long-term emotional/physical impairment that interferes with parenting functions;
- A long term impairment from substance abuse that interferes with parenting functions;
- Absence/impairment of emotional ties between parent and child;
- The use of conflict by the parent, which creates the danger of serious damage to child’s psychological development;
- A parent has withheld the other parent's access to the child for a long period of time without good cause; and/or
- Other factors that may negatively affect the child.*
* R.C.W. § 26.09.191(3)
back to topCan a non-parent file for primary residential care of the child?
Maybe. In Washington state, a non-parent can file a non-parental custody action in the county where the child is a permanent resident or where the child is found, but only if:
- the child is not living with either one of his/her parents; or
- if the non-parent alleges reasons why neither parent is a suitable custodian.*
The Washington Law Help website has frequently asked questions
and instructions for filing a nonparental custody action
If you want to know more about this, please contact your local legal aid provider, a lawyer, or one of the resource centers listed on our WA Where to Find Help
* R.C.W. § 26.10.032
** WomensLaw.org has no relationship with that site and does not endorse its accuracy. We provide it for your information only.
WomensLaw.org would like to thank the Northwest Women's Law Center
for their help with this material.
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