How will a judge determine decision-making authority?
All decisions about custody are supposed to be based on the “best interest” of the child.1 A custody decision, as written into a parenting plan, will decide whether to give one parent sole decision-making authority or to give both parents mutual decision-making authority. Below, we discuss how a judge will decide what to order.
If the parents agree on how to divide up decision-making authority regarding the children’s education, health care, and religious upbringing, the judge will approve this parenting plan if:
- the judge believes both parents willingly agree to it; and
- it is consistent with any “limitations” on a parent’s decision-making authority, which could be due to a parent committing domestic violence, sexual assault, or child abuse or other factors.2
If the parents cannot agree on how to divide up decision-making authority in their proposed parenting plans, the judge can order sole decision-making authority to one parent if:
- both parents are opposed to mutual decision-making;
- one parent reasonably opposes mutual decision-making; or
- a limitation on the other parent’s decision-making authority is required by RCW 26.09.191. Note: The “limitations” could be due to a parent committing domestic violence, sexual assault, or child abuse or other factors.3
When deciding whether or not to order mutual decision-making, the judge will consider:
- the history of each parent’s participation in deciding issues regarding the children’s education, health care, and religious upbringing;
- whether or not the parents have a demonstrated ability and desire to cooperate with one another in making decisions regarding the children’s education, health care, and religious upbringing;
- how close the parents live to each other to the extent that it affects their ability to make timely mutual decisions; and
- the existence of any limitation under RCW 26.09.191, which could be due to a parent committing domestic violence, sexual assault, or child abuse or other factors.4
If a parent or someone with whom the parent lives has committed domestic violence, sexual assault, or child abuse, the judge must consider these factors when deciding decision-making. For more information, see the questions in the section called When the parent –or someone who lives with the parent– is abusive.
1 R.C.W. § 26.09.187
2 R.C.W. § 26.09.187(2)(a); see R.C.W. § 26.09.184(5)(a)
3 R.C.W. § 26.09.187(2)(b)
4 R.C.W. § 26.09.187(2)(c)
How will a judge make a decision about residential time?
All decisions about custody are supposed to be based on the “best interest” of the child.1 A custody decision, as written into a parenting plan, will decide what sort of residential parenting time schedule will be in place. Below, we discuss how a judge will decide what to order.
When deciding residential parenting time, the schedule is supposed to encourage each parent to maintain a loving, stable, and nurturing relationship with the child, consistent with the child’s developmental level and the family’s social and economic circumstances. As a first step, the judge will see if any limitations on residential time exist according to RCW 26.09.191. The “limitations” could be due to a parent committing domestic violence, sexual assault, or child abuse or other factors. If the limitations of RCW 26.09.191 do not force the judge to limit residential time, the judge will consider the following factors:
- the relative strength, nature, and stability of the child’s relationship with each parent;
- each parent’s past record of performing, and potential future ability to perform, parenting functions relating to the daily needs of the child, including if one parent has taken greater responsibility in doing this;
- any agreements the parents have made;
- the emotional needs and developmental level of the child;
- the child’s relationship with siblings and other significant adults;
- the child’s involvement with his or her physical surroundings, school, or other activities;
- each parent’s employment schedule;
- the wishes of the parents; and
- the wishes of a child who is mature enough to express his/her own preference as to the residential schedule.2Note: The judge would likely interview the child in chambers to find out the child’s wishes.3
If a parent or someone the parent lives with has committed domestic violence, sexual assault, or child abuse, the judge must consider these factors when deciding residential parenting time. For more information, see the questions in the section called When the parent –or someone who lives with the parent– is abusive.
1 R.C.W. § 26.09.187
2 R.C.W. § 26.09.191(3)(a)
3 R.C.W. § 26.09.210
If the judge won't give me time with my child, does s/he have to explain why?
If a parent or guardian asks for shared parenting time of a child and the judge denies the request, the judge will usually put the reasons s/he denied your request on the court record. A judge can put his/her reasons on the court record by either stating his/her reasoning to you during a court hearing or by putting the reasons in writing.
Do I need a lawyer?
Although a person can represent himself/herself in court, it is highly recommended that people going through a custody case try to get legal representation. The information we provide here should get you started and help you with basic questions you might have. However, custody issues are complicated, and parties frequently benefit from the help of a lawyer. Unfortunately, you do not have a right to have a lawyer appointed for you in a civil case, but you may be able to talk to a lawyer for free or get a low-cost consultation for legal advice. For a list of legal resources, please see our WA Finding a Lawyer page.
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
Where can I file for custody? (Which state has jurisdiction?)
Generally, you can only file for custody in the “home state” of the child.1 The “home state” is the state where your child has lived with a parent or a person acting as a parent for at least six consecutive months. If your child is less than 6 months old, then your child’s home state is the state where s/he has lived since birth. Leaving the state for a short period of time, such as going on vacation, does not change your child’s home state.2
If you and your child recently moved to a new state, generally you cannot file for custody in that new state until you have lived there for at least six months. Until then, you or the other parent can start a custody action in the state where your child has most recently lived for at least 6 months. There are exceptions to the “home state” rule. Please see Can I change the state where the case is being heard? for more information.
Here are some examples of the “home state” rule:
My children lived in Alabama their whole lives. We just moved to Washington a few weeks ago. In my case, Alabama is my children’s “home state”. If I want to file for custody right now, I will probably need to file in Alabama.
My children lived in Florida for six months. We moved to Washington five months ago. Because the kids haven’t lived in Washington for six months yet, Florida is still the children’s home state. If I want to file for custody right now, I will probably need to file in Florida.
My children lived in Michigan for their whole lives until we moved to Washington six months ago. Because the children have lived in Washington for six months, Washington is likely their “home state.” I will likely need to file for custody in Washington.
My children lived in Washington until they left to live with their father in Alabama two months ago. Because they haven’t lived in Alabama for six months yet, their home state is still Washington. If I want to file for custody, I can most likely file in Washington.
1 R.C.W. § 26.27.201
2 R.C.W. § 26.27.021(7)
Can I change the state where the case is being heard?
Maybe. If you move to another state, you may be able to change the state where your custody case is being heard. You will have to ask the judge that is hearing the case to change the venue or location of your case. Sometimes your “home state” will allow another state to hear the case instead.1 However, before moving out of state, please talk to a lawyer for advice on whether or not this would be permitted based on your custody order. Generally, a parent may have to get permission from the judge to move out of state.
Changing the state where a case is being heard is often complicated, and as with all custody issues, we recommend that you talk to a lawyer. See WA Finding a Lawyer for legal assistance listings and for general information on changing the location of a court case, go to our Changing a final custody order section.
1 R.C.W. § 26.27.201
What are the steps for getting a parenting plan from the court?
The specific steps for getting a parenting plan may vary, depending on your particular situation. You will need to file the appropriate court action and fill out a series of forms including a proposed parenting plan, which includes a “residential schedule.”1
If the other parent or someone with whom the other parent lives has a history of acts of domestic violence, you can request that the other parent receive limited or no time with the child. There are also other possible reasons why that parent’s time with the child should be restricted.2 Please see How will a judge make a decision about custody? for more information.
If you are going to file for custody without an attorney, you can find custody forms on our WA Download Court Forms page. You may also be able to obtain self-help information from the Northwest Justice Project’s CLEAR (Coordinated Legal Education, Advice and Referral) hotline at 1-888-387-7111. You can also find contact information for legal services on our WA Finding a Lawyer page. Custody matters are often complicated and if you can have a lawyer draft the paperwork for you, it might make the process much easier for you.