Let's say that you and your spouse have finally agreed to get a divorce. You've discussed and resolved just about everything: who gets what car, TV set, bank account, appliances, and electronics. You've agreed on just about everything – with one exception. Who will take care of the kids?
This is just about the most gut-wrenching decision that anyone can make. How it is handled will have a tremendous effect – not only on the time and expense in getting a divorce, but also the future welfare and happiness of your children. Today we'll give an overview of the legal procedures.
In 1988, the State Legislature passed a statute that radically revised the way in which child custody decisions are made during a divorce. It totally eliminated the legal concepts of custody and visitation.
In place of these concepts, the new statute required the establishment of a residential schedule, in detail, outlining when each child would reside with each parent. The statute also requires a list of parental functions, and which parent will have the responsibility to perform each function.
The parental functions and residential schedules are set forth in a "Parenting Plan," which is signed by the Court. This Parenting Plan is required now in all marital dissolutions (divorces), annulments, and legal separations involving minor children.
The statute contemplates that both parents should, whenever possible, have a continuing relationship with the children. Increasingly, courts, psychiatrists, psychologists, and social workers have recognized the importance of both parents remaining responsible and active in the upbringing of their children.
Perhaps the most important feature of the Parenting Plan is the residential schedule. The residential schedule outlines where and when each child will live, and the nature and duration of the contact the children will have with each parent. If both parents agree on a residential schedule for the children, and the Court sees no inherent problem or danger for the children, the agreed residential schedule will be adopted by the Court.
However, if the parties cannot agree, or an issue is raised in Court which makes the Court feel that input is needed from a disinterested person, the Court can order that an investigation be conducted, and a report be written to assist the Court in deciding where the children should live. The Court can order an investigation be done by employees of the Court, or a Guardian ad Litem for the children. "Guardian ad Litem" (GAL) means "guardian for the litigation," and is a neutral person appointed by the Court to conduct an investigation.
Whether the report is written by a GAL or a Court employee, the recommendation made in the resulting report is normally adopted by the Court. I would venture to say that in 90 percent of all such cases, the recommendation made by the Family Court Investigator or GAL is adopted as the Parenting Plan for the children.
Depending on the financial resources of the parents, they also can obtain and provide evidence for the use of the Court and the investigator. Both parents, for example, will be interviewed by the GAL. In addition, if time allows, the GAL should interview friends, relatives, and other potential witnesses from lists supplied by both the mother and the father. If there has been any domestic violence, medical records and statements from counselors and physicians must be reviewed. Observations of day care workers are also often very helpful.
Obviously, since the GAL's investigation is often paid for by the parents, the extent of the investigation will depend on the financial resources available to the family. When the family can't pay for such an investigation, it will should be done by the Family Court's own investigators.
Although the law encourages involvement and contact of the children with both parents, this contact can be limited and even eliminated for a number of reasons. These reasons include a prior history of abandonment, child abuse, substance abuse, or emotional problems.
If alcoholism or substance abuse is alleged, the Court may order the parties to undergo a drug/alcohol evaluation by a licensed facility. This may involve not only an interview, but urinalysis. In appropriate cases, the Court has the power to order one or both parents to attend parenting classes or anger management counseling.
Next week, we'll discuss some specific problems, like emotional disorders of a parent, substance dependency, and child abuse.
About Me
- Clement Law Center
- Bruce Clement was recently interviewed on both ABC News and Good Morning America. He was born in Yakima Washington, and graduated from Eisenhower High School. He served two years in the Peace Corps (Philippines), and received his BA in Political Science with honors from the University of Washington. While in undergraduate school he attended classes during the day; worked a night shift 40 hours a week; and did his homework on the weekends. In law school at the UW, Mr. Clement was Casenote Editor of the Washington Law Review. Upon graduation from law school he was also commissioned as a Second Lieutenant in the Signal Corps, and transferred to the JAG Corps three years later. He worked in the State Attorney General's Office for 17 years before moving to private practice. In the AGO he handled hundreds of child abuse and neglect cases for DSHS, and for two years was its lead trainer for caseworkers on the law of child abuse. Bruce Clement has dedicated his career to providing the highest quality legal services to his clients. His busy family law practice includes many interstate and international child custody cases.