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King Solomon At The Bench: How WA Courts Determine Residential Custody
If you’re a parent who is contemplating the prospect of divorce, your number one concern is probably, “What happens to the kids?” Residential schedules are a frequent point of contention among divorcing parents, often more so than property division, and many parents are more than willing to fight to the bitter end to make sure they get to spend as much time with their kids as possible. If parents can’t agree on a residential schedule before trial, the court has to decide how to divide residential time.
Statutory law requires a Washington family law court to base its decision on how to award residential time on the best interests of the child (BIOC). RCW 26.09.002. Within the BIOC framework, the court will consider the following factors, set forth in RCW 26.09.187(3)(a):
(i) The relative strength, nature, and stability of the child’s relationship with each parent [note: per the statute, the court must give this factor the greatest weight in making its decision.];
(ii) The agreements of the parties, provided they were entered into knowingly and voluntarily;
(iii) Each parent’s past and potential for future performance of parenting functions as defined in RCW 26.09.004(3), including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
(iv) The emotional needs and developmental level of the child;
(v) The child’s relationship with siblings and with other significant adults, as well as the child’s involvement with his or her physical surroundings, school, or other significant activities;
(vi) The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule [note: despite the popular belief that children over a certain age have the final say in where they spend their residential time, Washington courts do not always defer to the wishes of the children. The court can use the child’s preference in making its decision, but it will ultimately make its own decision based on each of the factors in the statute.]; and,
(vii) Each parent’s employment schedule, and shall make accommodations consistent with those schedules.
Using these criteria in a case where both parents are equally able to care for the kids, courts often order a 50/50 split. For older children, this may mean that they spend one week with one parent, and the next week with the other; for younger children, intervals may be a few days.
Disclaimer: The content in this blog is intended to be used for informational purposes only. Nothing herein should be construed as legal advice or opinion. If you are seeking legal advice, please contact us.
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