Child Custody, Child Support, and Property Division
Family law, also called domestic relations, or dom. rel., refers to the field of law that governs relationships between family members. The concept of family includes children, step-children, siblings, half siblings, spouses, whether married or co-habitating, and parents, whether living together or apart, and whether gay, lesbian, straight, or otherwise.
Family law typically touches the lives of clients when they are getting divorced. A divorce (dissolution) with children has three sets of issues:
1) child custody/residential schedule, 2) child support, and 3) property division.
The governing child custody document is a parenting plan. The parenting plan establishes the child's residential schedule - with whom the child is supposed to live at any given time, including vacations, holidays, and special occasions. The parenting plan also determines how major decisions will be made, for example, which parent will take the child to the doctor, and how the doctor will be chosen.
Child support is determined by the child support table promulgated by the Washington Legislature. One parent, almost always the non-custodial parent, is obligated to make a monthly transfer payment to the other. The amount is based on each parent's income and any direct child-related expenses, for example, health insurance.
Property Division refers to the allocation of assets and liabilities between the parties.
Typical assets include pensions / retirement accounts and the family home. Typical liabilities include credit card debt and first and second mortgages. The property division is established by the decree of dissolution. The decree also addresses related issues such as maintenance (alimony).
The Parenting Plan Governs the Child’s Residential Schedule
The parenting plan is a blue-print for how the parties will raise the child from the effective date of the plan through high school. It includes details such as where the child will spend each day of Christmas vacation in any given year, how the child’s doctor will be selected, and the number of extra-curricular activities in which the child shall participate in any period of time.
The basic elements of a parenting plan are:
⦁ Whether one of the parents has engaged in abuse, neglect, or otherwise inappropriate behavior;
⦁ The residential schedule;
⦁ The schedule for holidays, vacations, and special occasions;
⦁ Which parent has authority for which major decisions;
⦁ Relocation Act requirements; and Dispute Resolution.
The most common parenting plan establishes one parent, typically the mother, as the primary custodial parent. The child resides with her, unless specifically stated otherwise. The child will reside with the non-custodial parent, typically the father, every other weekend, half the holidays and vacations, and two – three weeks in the summer. Parties wishing to stretch the weekend a bit may define it as after school on Friday to before school on Monday.
To avoid conflict, it is probably best to have the parents exchange the child without seeing each other. Thus, during the school year, one parent will drive the child to school in the morning. The other parent will pick-up the child after school. During the summer, the drop-off and pick-up can be at daycare.
Another not-uncommon residential schedule is 50/50, or split custody – for example, one week at Mom’s, the next at Dad’s. Split custody works better in situations where the parties are able to set aside their differences and work together for the best interest of the child. It also works better where both parties live in the same neighborhood, so the children can walk or bike from one house to another to get their homework or whatever else they may have forgotten.
Once a parenting plan is entered, it is very difficult to modify. A court will not modify a parent plan unless it finds that 1) a substantial change, unanticipated at the time the plan was entered, has occurred in the circumstances of the non-moving party or the child, 2) a change in the parenting plan is in the child’s best interest, and 3) the risk of change is less than the benefits doing nothing.
By Law, One of the Two Parents Must Pay Child Support
Per statute, the non-primary residential parent must pay the primary residential parent the costs of maintaining the child in his or her residence. These costs are rolled into what is called a “transfer payment.” The transfer payment is usually due at the beginning of each month.
The transfer payment is based on the child support table, which the Legislature most recently amended in 2010. The table, based on data and analysis from the social sciences, establishes the proportion of family income that the Legislature has determined each parent can and/or should spend per child.
To calculate where you fit on this table, you plug in your income and your expenses in one column of the worksheet and the other side’s income and expenses into the other column. You then come up with a combined monthly net income, find that amount on the table, then determine your presumptive transfer payment.
A court may deviate from the presumptive transfer payment for a number of reasons, the most common reason is that the child spends a significant amount of time with the person making the transfer payment.
One of the two parents is legally required to pay child support even if the parents split custody 50 /50, and even if the person required to pay has never set eyes on the child. The only exception to this rule is if parental rights have been terminated.
Parental Alienation Syndrome Is Insidious and Difficult to Prove
Parental Alienation Syndrome (“PAS”) refers to an insidious and hard-to-prove family dynamic that may result in the child’s rejection of a perfectly fit, or at least perfectly redeemable, parent. The target parent is most often the father and the targeting parent is most often the mother.
The term PAS began to enter the family-law lexicon in the late 1980s due to the work of a child psychiatrist from Texas named Richard Gardner. Dr. Gardner identified a cluster of symptoms that defines PAS including:
⦁ It arises primarily in the context of a custody dispute;
⦁ Unjustified or exaggerated denigration of the target parent; and
⦁ Collusion between the child and the alienating parent.
To many practitioners, PAS is a crafty and pseudo-scientific excuse for domestic violence and denial. Neither the courts in King County, where I practice, nor the social workers from Family Court Services, are sympathetic to PAS. PAS is not recognized by the DSM – IV, the “bible” of the mental health industry. In fact, if you claim PAS, you run a real risk of being automatically labeled an abuser and of sabotaging any chance you may have of obtaining a reasonable parenting plan.
Nonetheless, some parents do have a deep-seated psychological need to crush the other parent and to prove that they are right. Typically, these parents view their children as an extension of themselves and control their children’s schedules, thoughts, feelings, and relationships with other people with a death grip.
The controlling parent will view any attempt to loosen this grip as an attempt to harm him/her. Any validation of the child’s love for the targeted parent will be viewed as a repudiation of the child’s love for the controlling parent. The child will know who butters their bread and will cast their lot accordingly.
Allocation of Community Property Shall Be Just and Equitable
Washington is a community property state. The fundamental premise of a community property system is that each party to a marriage owns an equitable share of all the property acquired by the marital community from when it started until the day of separation.
Gifts and inheritances acquired by one party or the other are considered separate property, but they may transition to community property if they are commingled with community property.
The community property system originated in the civil law countries of western Europe and was brought to Mexico and the American Southwest by the Spanish conquistadors and to Louisiana by the French. Presently, there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In addition, community property is optional in Alaska.
Legal scholars at the University of Washington School of Law think that the Washington Territorial Legislature adopted the community property system so that Washington’s bachelors could compete for brides with the bachelors of California.
To get divorced in Washington, the courts will classify the couple’s property as either community or separate and then allocate it between the parties based on duration of marriage, the status of the parties before marriage, economic circumstances of the parties, and whether it is desirable to award the family home to the primary residential parent. The standard for making this allocation is “just and equitable.”
Split Custody May Be the Future, But It Is Not the Present
Washington courts have traditionally been hostile to split custody or 50 / 50 residential schedules. However, in 2007, the Washington Legislature took a small but significant step towards split custody. Under the prior statute, the court could not order the Child to spend equal intervals of time in each household unless: no limitations based on abuse / neglect, agreement of the Parties, and a satisfactory history of cooperation and shared parenting functions.
Under the revised statute however, the court may order the Child to spend equal intervals of time in each household where it is in the best interest of the Child and the abuse/neglect is not dispositive. This change should make courts more willing to order split custody in the future.
However, at least in the immediate future, courts are not going to order split custody unless the parents agree. If the parents agree, then they are probably not going to litigate in the first place.
I am proud to report that I have gotten “split custody” for dads a number of times over the years, but I always do it in a way that is subtle and allows mom to save face. Many mothers don’t particuarly want the children more than half the time, they just don’t want the world to know that they feel that way.
In these circumstances, my client and I acknowledge that mom will be the primary custodial parent, but then design a parenting plan where the children reside with Dad for, say, forty-five percent of the time. We get 50 / 50, but don’t call it that.
GUARDIAN AD LITEM
A Guardian Ad Litem May Help
A Guardian Ad Litem, (“GAL”) is a third-party professional who represents the child. GALs are typically social workers, attorneys, or volunteers with the CASA program. Many counties have a GAL registry. To be on the registry, the GAL must take an extensive, step-approved training course. After passing the course, they must keep their certification current with additional training.
The GAL’s authority and behavior is governed by a highly detailed set of rules and procedures, established by statute and regulation.
Typically the GAL will begin her/his investigation by sending each party a questionnaire. A thorough investigation includes:
1) a visit to each home, primarily to observe the parties interacting with the children, but also to determine whether the home is safe and appropriate for the child.
2) one or more in-person interview with each parent and a series of follow-up phone interviews.
3) Phone interviews with collateral witnesses provided by each party, and 4) a records search, including a state patrol criminal background check.
The GAL may also recommend or require the parties to undergo psychological evaluations. If there are allegations of domestic violence or drug and/or alcohol abuse, the GAL should also require or recommend that the parties be assessed by qualified specialists.
Once the GAL collects all appropriate information, she needs to synthesize it, and issue a report. The report should recommend a parenting plan, and, if appropriate, a course of treatment designed to address whatever parenting deficiencies she may have discovered.
Although the court is not bound by the GAL’s report, it will take the report very seriously. Indeed, courts tend to recommend whatever the GAL recommended.
Clients need to be very polite and responsive to all inquiries from the GAL. They also need to consult with their lawyers before talking to the GAL. The GAL report and testimony will probably be the single-most important piece of evidence in a given case.
A Restraining Order Usually Requires One Person to Stay Away from the Person and Property of Another Person.
The term “restraining order” covers a number of different kinds of orders addressing a number of issues and grounded in different sources of law.
However, the two most common restraining orders in Washington are anti-harassment protection orders and domestic violence protection orders.
Both orders are similar, although they are creatures of different statutes. They restrain one person from coming within a specified distance of another person and perhaps that person’s minor children. They may also restrain the person from coming within a specified distance of the other person’s home, school, or place of work.
To obtain an anti-harassment or domestic violence protection order, the petitioner usually gets a temporary order from the ex parte court commissioner. The temporary order usually is good for two-weeks. The temporary order, notice of hearing, and supporting documents are then served on the respondent.
At the hearing, the court will either make the temporary order permanent, usually for a year, or let it lapse. Temporary restraining orders are virtually automatic. Permanent orders are less than automatic, but the standard of proof is rather low and courts routinely convert temporary orders into permanent orders.
Once a court has issued a permanent restraining order, it is easily renewed. In fact, the burden of proof is on the restrained person. The restrained person must show that the order should not be renewed, rather than the other way around.
Domestic Violence Refers to Violence Between Family Members
Domestic violence refers to virtually any act that causes one party to an intimate or familial relationship to fear the other party. In King County, and elsewhere, adjudicated domestic violence victims tend to be women. Adjudicated domestic violence tend to be men.
Domestic violence comes in all shapes and sizes. The most obvious symptom and tool of the domestic violence perpetrator is physical violence. Another is isolation, constant denigration, blaming the victim, and denial that domestic violence is occurring.
Courts tend to focus on physical violence because it is the easiest to prove. More subtle forms of domestic violence, manipulation, and control, can be more insidious and more difficult to prove. Likewise, police will arrest whoever they think is more physically intimidating, regardless of who started the disturbance or even who is actually injured.
Social scientists and victim’s advocates often describe the relationship between a domestic violence perpetrator and his/her victim as a cycle of violence. The cycle has three roles: abuser, victim, and rescuer. The two parties to the cycle move through the three roles. Sometimes the man is the abuser. Sometimes the woman is the abuser.
The first step in ending domestic violence, at least in my opinion, is to recognize the cycle and stop perpetuating it. To me, this means ending the relationship, and then foregoing another one until the party has developed the tools avoid repeating the cycle with someone else.
A Pre-Nuptial May Help Prevent Future Misunderstandings
A prenuptial agreement, also called a prenup. or an ante nuptial agreement, is a contract between two people contemplating marriage to each other. The standard prenup. focuses on how the couples’ assets will be distributed in the event of divorce.
Prenups. are commonly used where one party enters the marriage with significantly more assets than the other and wishes to retain those assets in the event of a divorce.
A prenup may also be helpful where one party expects a large sum of money in the future and the other party did not contribute to that expectation. For example, the party expects a substantial inheritance, or the party expects his hardwork to pay off when he finally publishes his best-selling novel.
Finally, a prenup. may help protect one party’s interest in the other party’s future revenue-generating potential. For example, the party who agrees to toil in an unrewarding job so that the other party may attend medical school may want to establish his claim to part of the value of the degree in a prenup.
To be valid, each party to the prenup. must: fully disclose all their assets before signing the prenup., be represented by independent legal counsel or knowingly waive their right to independent counsel, and not be under duress or undue influence. In addition, the prenup. must be fair.
To ensure the absence of undue influence, it is best to sign the prenup. long before the wedding, for example, before mailing the invitations. In addition, the tone and appearance of the prenup ought to be formal. It ought to be signed by two witnesses and notarized.
PRO-SE DIVORCE FAQS
A Pre-Nuptial May Help Prevent Future Misunderstandings
Q: Do I Need An Attorney?
A: It Depends. If you have no assets , you trust your soon-to-be ex spouse, and you have sufficient time, then you probably don’t need an attorney. However, if you have the following, I would definitely recommend an attorney:
⦁ Significant liabilities;
⦁ Real property;
⦁ Pension; or
⦁ You and/or your spouse own a business.
Q: Can my spouse and I work-out the basic property / debt distribution, parenting / support issue ourselves and then hire one attorney to do the paperwork for both of us?
A: I occasionally facilitate an uncontested divorce – meaning that I work with both parties to determine the parties’ assets / liabilities and suggest a fair and equitable distribution. I then prepare and file the documents. This generally only works when the parties have pretty much agreed ahead of time on the asset / liability distribution and have both agreed that the potential benefits of litigation are outweighed by the costs.
I will undertake this role only if both parties agree to meet with me together and they call me independently to confirm the appointment. In the event that this process doesn’t work and the parties “lawyer-up” I am ethically unable to represent either party.
Q: If my spouse and I want to get divorced ourselves, how do we do it?
A: I have developed the following list:
To start the process:
⦁ Go to the Washington State Courts website and download the following forms:
⦁ Confidential information form
⦁ Fill out the forms.
⦁ Respondent must sign the joinder at the end of the petition
⦁ Fill-out two additional forms available from the King County Superior Court Clerk’s office
⦁ Case assignment area
⦁ Case designation
⦁ Go to the clerk’s office, and:
⦁ Pay the $280 filing fee (cash or check with in-state address)
⦁ File the four documents
⦁ Obtain the case scheduling order
⦁ Obtain the family law information handout
⦁ Give a copy of the case scheduling order and family law information packet to your spouse
⦁ Take the parenting class within 60 days (or pay the non-compliance fee if you wait over 60 days) (ensure that the parenting class facilitator files your certificate of attendance.)
⦁ Obtain the following forms from the same website:
⦁ Findings of Fact / Conclusions of Law
⦁ Decree of Dissolution
⦁ Parenting Plan
⦁ Order of Child Support
⦁ Fill out the forms
⦁ Obtain Respondent’s signature on each form (sign in blue ink. The clerk will only accept originals for filing)
⦁ Make 2 copy sets of the original signed documents so now you have three copy sets on total (the two copies plus the original)
⦁ Put on your Sunday best
⦁ Go to the clerk’s office and obtain stamp “Present in Person”
⦁ Go to ex parte, hand original copy set to clerk
⦁ Wait until the ex parte commissioner calls your last name
⦁ Approach the bench, introduce yourself, and stand at attention
⦁ The commissioner will run a JIS background check on you. If you have children and a criminal background and your parenting plan does not address this, you may have a problem.
⦁ Assuming you pass the JIS test, the commissioner will then question you regarding the elements of a divorce, required per statute e.g.: what is your name, is the asset/liability distribution in the decree fair and equitable? Etc.
⦁ The commissioner will then sign your final papers
⦁ The clerk will put them in her basket for filing
⦁ Walk out of the court room with your two copy sets
⦁ Conform the copy sets with the stamps in the lobby
⦁ Keep one copy set for your records
⦁ Give the other copy set to your now ex-spouse
⦁ Congratulations. You are now divorced.
FAMILY LAW GLOSSARY
Per statute, a court must make a finding of adequate cause before allowing certain kinds of cases to proceed to trial or settlement. To find adequate cause in a petition to modify a parenting plan, the moving party must prove that a substantial change has occurred in the circumstances of the non-moving party or the child and that a change in the parenting plan would be in the child’s best interest.
Per statute, every child is entitled to child support and every parent must either pay it or receive it. Child support is calculated based on the parent’s combined adjusted gross income, the parent’s respective share of the adjusted gross income, the child support table, and any child-related expenses the parent pays.
CHILD SUPPORT SCHEDULE
The child support schedule was established by the Legislature in 1988 and revised in 2009. According to the Statute that adopted the schedule, it is designed to ensure that child support orders are adequate to meet a child’s basic needs and to provide additional child support commensurate with the parent’s income, resources, and standard of living.
Washington is a community property state. The fundamental premise of a community property system is that each party to a marriage owns an equitable share of all the property acquired by the marital community from when it started until the day of separation. Property brought into the marriage, or received as a gift or inheritance, on the other hand, is deemed separate property.
Per statute, the parenting plan is supposed to designate one parent as the primary custodial parent and the other as the non-primary custodial parent. As the term implies, the primary custodial parent will have more physical custody (residential time) with the child than the non-primary custodial parent.
DISSOLUTION / DIVORCE
In Washington State, a divorce is called a dissolution. To get divorced in Washington, a childless couple needs two final orders: a decree of dissolution and findings of fact / conclusions of law. If the couple has children, they also need an Order of Child Support w/Child Support Worksheet and a Parenting Plan. In addition, each parent must attend the Parenting Seminar and any issues raised by a review of the Judicial Information Service must be resolved.
Domestic violence refers to virtually any act that causes one party to an intimate or familial relationship to fear the other party. It includes physical violence as well as verbal or other forms of violence. Washington state courts take allegations of domestic violence very seriously.
Grandparents do not have any special rights to the care/custody of their grandparents or to visitation with their grandparents. In fact, in 2000, the U.S. Supreme Court struck down a statute that recognized the right of “any person” to petition for visitation. The statute allowed visitation based on the child’s best interest. The court held that the best interest standard did not protect parental rights.