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Parenting Plans
Whenever there is a divorce with children who are not emancipated (usually under the age of 18), the law requires a “Parenting Plan.” Since 1987, Washington law has not used terms like “custody” and “visitation” to describe the contact between divorced parents and their children. Instead, Washington law uses the term “residential schedule” which is listed in a “Parenting Plan,” to describe the contact. Intended to be more than merely a semantic change, Washington law tries to recognize the importance of the best interests of the child, which assumes that both parents will continue to take appropriate roles in the lives of their children. After all, the divorce is between people who are in the roles of “husband” and “wife,” not people in the roles of “mom” and “dad.” At the end of a divorce, “husband” and “wife” end — but “mom” and “dad” continue. In all but the most extreme cases, both parents will remain involved in the life of their child in the future. The policy of the State is: Parents have the responsibility to make decisions and perform other parental functions necessary for the care and growth of their minor children. In any proceeding between parents..., the best interests of the child shall be the standard by which the court determines and allocates the parties’ parental responsibilities. The state recognizes the fundamental importance of the parent-child relationship to the welfare of the child, and that the relationship between the child and each parent should be fostered unless inconsistent with the child’s best interests. Residential time and financial support are equally important components of parenting arrangements. The best interests of the child are served by a parenting arrangement that best maintains a child’s emotional growth, health and stability, and physical care. Further, the best interest of the child is ordinarily served when the existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents or as required to protect the child from physical, mental, or emotional harm. RCW 26.09.002 (as amended effective 7/22/07). The term “parenting plan”, as it is used today in Washington, encompasses far more than the daily residential arrangements of the child. Parenting plans typically include detailed school, vacation, and holiday schedules, but also an allocation of decision-making authority on major decisions, a dispute resolution process, and often aspirational goals concerning the co-parenting of children.
There are two types of parenting plans: temporary parenting plans, and permanent parenting plans. Litigated cases will often have temporary parenting plans, but they can be entered by agreement. They are “band aids” until a permanent parenting plan can be established. Unlike a permanent parenting plan, a temporary parenting plan need only contain a residential schedule. Decision-making provisions are optional. There is no requirement for a dispute resolution process in a temporary parenting plan. If the Court does not provide an allocation of decision-making, each parent is permitted to make day-to-day decisions concerning the child while the child is in that parent’s care. When the parents have chosen to pursue a collaborative or mediated divorce, court involvement can be very limited. In non-litigated cases, it is usually unnecessary to enter a court order that is a temporary parenting plan. Instead, parents can usually agree to temporary parenting arrangements. Instead of the court deciding, the parents decide what is best for themselves and their children, and then follow their agreement. If the agreement turns out not to work out well, another agreement can be made.
A permanent parenting plan is the final court order that lists parental responsibilities and a residential schedule. It is required before any divorce may be finalized, if there are children who are not emancipated. Before the court will sign a permanent parenting plan, some counties, including King County, require the parents to attend a court-approved parenting seminar. Although the contents of these seminars vary, most include components addressing basic parenting and the effect of family strife on children. In King County, and most counties that require attendance at a seminar, a permanent parenting plan will not be entered by the court without a certificate from an approved seminar provider. Most parents find the seminar very helpful, and it can help with making parenting decisions. It therefore makes sense not to delay attending the seminar. Conflict is generally considered to be bad for children. Studies show that children of divorce have a 10-15% higher incidence of serious psychological and social problems compared to children in married families. The primary factors causing the differences are stress caused by the divorce process, continuing parental conflict, diminished parenting following separation and divorce, loss of important relationships, remarriage and re-partnering, and reduced economic opportunities. Additionally, research has found that involvement of the non-primary parent after the divorce is a protective factor for the children. It therefore makes sense to try to reduce the risk factors, by choosing a divorce process that less stress, reduces parental conflict, and does not unnecessarily impact important relationships. Among the available options, the collaborative divorce process, while not eliminating all factors, can substantially improve many of these factors, thereby reducing the risk of psychological and social problems to children caused by divorce. Even for litigated cases, most parenting plans are entered into by agreement, but litigation generally involves more stress and pays less attention to the other factors than Collaborative Law and mediation. Agreement may be reached by discussions directly between the parties, or with the help of intermediaries, including the collaborative law process. In collaborative law cases, it is common for parents to seek input from an agreed child specialist, who can help the parents understand the divorce from the child's perspective, and provide information to help them reach an optimal agreement for themselves and children. In King County and some other counties, Family Court Services will provide parenting plan mediations between parents and, where they fail, an investigation to assist the Court. Many counties, including King County, also have a mediation requirement as a prerequisite to being allowed to proceed to trial.
Permanent parenting plans must have three major components: (1) residential schedule, (2) decision-making provision, and (3) a dispute resolution procedure. 1. Residential Arrangements. Parenting plans are to make residential provisions “which 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.” The law lists these factors for consideration:
Although these factors may be binding on a court, in any settled parenting plan – including collaborative cases and mediations – parents can (and do) decide a parenting plan that works best for them and their families based on factors that are most important to them. 2. Limiting Factors. The Legislature has recognized that there are situations when the presumption of parental involvement runs contrary to the best interests of the children. Such situations may arise with parental neglect, child abuse, mental illness, severe personality disorders, domestic violence, sex abuse, alcoholism, drug addiction, or other dysfunction. In these circumstances, the nature and/or extent of parental interaction with a child is limited. A limit on residential time must be imposed if the parent or a person with whom the parent resides engaged in any of the following:
See RCW 26.09.191(2). A limit on joint decision-making and the dispute resolution process is imposed where there is: (1) willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions; (2) physical, sexual, or a pattern of emotional abuse of a child; or (3) a history of acts of domestic violence or an assault or sexual assault which causes grievous bodily harm or the fear of such harm. Similarly, if a parent has been found to be a sexual predator, the law restrains all contact with the child. If the parent resides with a sexual predator, then contact in the presence of that person must be restrained. The law allows for other limits in a parenting plan if a parent neglected or substantially failed to perform parenting functions, has a long-term emotional or physical impairment which interferes with the parent’s performance of parenting functions, has a long-term impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting functions, has no or substantially impaired emotional ties with the child, has abusively used conflict which creates the danger of serious damage to the child’s psychological development, has withheld from the other parent access to the child for a protracted period without good cause, or has engaged on other conduct as the court expressly finds adverse to the best interests of the child. The law gives broad discretion to fashion limits that are appropriate to each particular case. Many people incorrectly believe a child can decide where to live once s/he turns a certain age. In Washington, a minor is not given the legal right to decide where to live. (The sole exception is when the minor has been legally emancipated, in which case the minor is treated as an adult for all purposes.) That being said, the wishes of the child will, under some circumstances, be considered by a court if the child is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule. However, the wishes of the child is only one among a long list of factors to be considered if the court makes the determination. In a collaborative divorce, the children's wishes and views are often considered by the parents. Most parents recognize that their children are affected by divorce, and getting the input from a child (not as the decision-maker, but to inform good parental decisions) can be very beneficial. The input should be obtained through a professional, such as a neutral child specialist, so the child does not feel like s/he has to be in alignment with either parent.
Parenting plans remain modifiable – at least until the child reaches the age of majority. However, absent agreement between the parents to modify a parenting plan, there is a strong presumption in favor of custodial continuity and against modification. While the parents' agreement in a parenting plan is never binding on a court, most parental agreements are accepted. There are two types of modifications: minor modifications and major modifications. Major modifications include anything that does not fit within the criteria for minor modifications. A higher standard is required for a major modification. Whether a major or a minor modification, if brought in bad faith, the court is required to assess the attorney’s fees and court costs of the nonmoving parent against the moving party. Procedurally, a “threshold hearing” is required in most modifications. At the threshold hearing, the moving party is required to make a showing of “adequate cause”. Adequate cause is defined as “something more than prima facie allegations which, if proven, might permit inferences sufficient to establish grounds for a custody change.” As a practical matter, the threshold hearing provides the Court with a preview of the case, with written evidence. Collaborative Cases. So long as both parents are agreeable to continue to act in the best interests of the children, collaborative family law cases can maintain far more flexibility in parenting arrangements to meet the changing needs of families over time.
In 2000, the Legislature passed a relocation statute that provides for detailed notice requirements if a parent proposes to move with a child. The statute imposes a requirement that an objecting party must file a court proceeding to prevent the relocation. If notice is not properly provided, the relocating parent can be ordered back. This statute is very complex. If you are or the other parent is contemplating moving, you and the other parent should seek competent legal advice. Like all other aspects of parenting plans, relocations can be addressed through the collaborative family law process. 
VIII.
HELPFUL WEBSITES.
There are several very useful online resources for parents. Here are some of our favorites: Association of Family and Conciliation Courts parent resources The Cooperative Parenting Institute
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