Wednesday, February 24, 2010

What About the Kids? Part One

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.

Tuesday, February 16, 2010


What would you do if you had primary custody of your children after a divorce, then remarried, planned to move to another state, but were denied the right to take the children with you by the Divorce Court?

In a case which recently considered that issue, Division 3 of the Washington State of Court of Appeals held that the custodial parent should at least be given a trial to present evidence as to why she should be allowed to take the kids with her.

In the case in question, the parents of two children had a Final Parenting Plan after divorce, which equally split residential time between the two parents. However, the mother was designated as the "Primary Parent".

The mother remarried a military man, and filed a motion with the court for a modification of the Parenting Plan to reduce the father’s visitation because of her plan to move to California to be with her father, who was recently diagnosed with terminal cancer. Her husband, a member of the armed forces, had obtained a transfer to California to allow his wife to be near her father.

The father vigorously opposed the mother’s motion. The court commissioner entered an order denying the mother the right to take the children to California, and even denied her the right to a hearing on the issue. The commissioner’s reason was a statute, which says that if a parent wants a "major" change in the parenting plan, she has to prove that the current plan is detrimental to the child’s wellbeing. As a result, the mother had to move to California and leave the children with her husband, and wasn’t even allowed to have a trial with witnesses testifying on her behalf.

The mother appealed. The Court of Appeals reversed the trial court’s decision, and ruled that, at the very least, the mother should be allowed to present evidence on whether or not she had adequate reasons to justify changing the Parenting Plan and move the children with her to California.

Washington State Statutes on how to modify a Parenting Plan provides two different rules, depending on whether the proposed modification is "major" or "minor". In the above case, everybody (including the trial court) assumed that moving the children from Washington to California would be a "major" change. If that were true, the mother would have to prove that the living environment for the children in Washington State was detrimental to their physical, mental or emotional health, and the harm likely to be caused the move to California is outweighed by the advantages of the move.

This would be very tough to prove.

The Court of Appeals, however, decided in this case that moving the children to California was only a "minor" change in the parenting plan. That would be very important to the mother’s case, because she would then only have to show a "substantial change in circumstances of either parent or of the child", including a "minor modification in the residential schedule that is based upon a change of residence or an involuntary change in work schedule by a parent which makes the residential schedule in the parenting plan impractical to follow."

The court of Appeals held that the mother might be able to prove at trial that her change of residence was "involuntary" because she had to move closer to her terminally ill father, and that the existing parenting plan (requiring each parent to alternate weeks with the children) would be "impractical" after her move to California. Therefore, reasoned the Court of Appeals, the proposal for a change in the parenting plan should be classified as "minor'" not "major."

The Court of Appeals quoted a prior case which held that "although a move out of state and away from the nonresidential parent is undoubtedly a major event in a young child’s life, the statute contemplates that a substantial change in circumstances of either parent or of the child can be addressed through a "minor" modification of the parenting plan." The trial court’s order, requiring the mother to leave the children with the father, "forces the [mother] into the quandary of choosing between her freedom to reside with her present husband [in California] or leaving without her children …" The Court of Appeals held that at least the mother should be allowed to have a full evidentiary hearing in court to allow the judge to decide whether or not to modify the parenting plan so that she could move. "A court may restrict a parent from moving only after finding the child would suffer more distress than normally attends the hardships of travel and distance from a parent."

The bottom line is this: If you are the primary residential parent after a divorce, and you want to move to another state, you may be allowed to do so unless your ex can prove that your children would suffer more than what would be normally expected.