If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised.  If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).

However, if there is no current court case, please get legal advice before you start a court case to ask for supervised visits.  We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the majority of cases, supervised visits are only a temporary measure.  Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised.  Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate.  To find out what may be best in your situation, please go to WA Finding a Lawyer to seek out legal advice.

A judge may limit a parent’s contact or responsibilities with the child if any of the following factors exist:

1. neglect or non-performance of parenting functions;
2. a long-term emotional/physical impairment that interferes with parenting functions;
3. a long term impairment from substance abuse that interferes with parenting functions;
4. absence/impairment of emotional ties between parent and child;
5. the use of conflict by the parent, which creates the danger of serious damage to child’s psychological development;
6. a parent has withheld the other parent’s access to the child for a long period of time without good cause; and/or
7. other factors that may negatively affect the child.¹

¹ R.C.W. § 26.09.191(3)

If the judge believes that the abusive parent has done anything listed in one of the four categories below, the abusive parent’s residential time with the child must be limited. The judge must believe that the abusive parent:

1. committed physical abuse, sexual abuse, or a pattern of emotional abuse against a child;
2. has a history of committing acts of domestic violence, as defined by law;
3. committed an assault or sexual assault that resulted in:
   • serious (“grievous”) bodily harm;
   • the fear of serious (“grievous”) bodily harm;
   • a pregnancy - but if the pregnancy involved the subject child being conceived, stricter laws apply; or
4. was convicted as an adult of a sex offense as follows:
   
   1. if s/he was convicted of one of the sex offenses listed here in section (2)(a), the judge could limit residential time;¹
   2. if s/he was convicted of one of the more serious sex offenses listed here in section (2)(d), the judge has to assume that the parent is a danger to the child and cannot allow contact between the parent and child unless the parent is able to convince the judge otherwise; or
   3. if s/he was designated to be a sexual predator, the judge cannot allow contact with the child.²

The types of limitations that a judge can order on a parent’s residential time include:

• completion of relevant counseling/treatment for the parent;
• supervised contact between the child and the parent; or
• no contact between the child and the parent only if the judge believes that the other limitations would not protect the child from harm or abuse.³

¹ R.C.W. § 26.09.191(2)(a)
² R.C.W. § 26.09.191(2)(c),(d)
³ R.C.W. § 26.09.191(2)(m)(i)

If the judge finds by “clear and convincing evidence” that the subject child was conceived due to a sexual assault by the abusive parent, the parent cannot get any parental rights. Therefore, the abusive parent (the offender) cannot get residential time or decision-making responsibilities for the child. However, the offender can still be ordered to pay child support.¹

It is important to note that the abusive parent (offender) does not need to be criminally convicted of the sexual assault against you – although a conviction can help your case. As long as you can convince the judge that the offender sexually assaulted you and that your child was conceived as a result, the offender can be denied all parental rights.

¹ R.C.W. §§ 26.09.191(2)(m)(iii); 26.26.0001(7)(a), (9)

Even once a parenting plan is in place, the law recognizes that a parent’s involvement or actions can have a negative effect on the child’s best interests. The judge can limit or remove any parts of the parenting plan if any of the following factors exist:

1. a parent has neglected their parenting functions or not performed them in a substantial way;
2. a parent has a long-term physical or emotional condition that interferes with his/her performance of parenting functions;
3. a parent has a long-term drug or alcohol dependency that interferes with his/her performance of parenting functions;
4. there is no emotional tie between the parent and the child or it is substantially damaged;
5. a parent purposefully creates conflict, including abusive litigation as defined in R.C.W. 26.51.020, which creates the danger of serious damage to the child’s psychological development.¹

“Parenting functions” include:

1. maintaining a loving, stable, consistent, and nurturing relationship with the child;
2. attending to the daily needs of the child, such as feeding, clothing, physical care and grooming, supervision, health care, and day care;
3. doing other activities that are appropriate to the developmental level of the child and that are within the social and economic circumstances of the particular family;
4. providing an adequate education for the child, including remedial or other education that the child needs;
5. helping the child in developing and maintaining appropriate interpersonal relationships;
6. exercising appropriate judgment regarding the child’s welfare, consistent with the child’s developmental level and the family’s social and economic circumstances; and
7. providing for the financial support of the child.²

¹ R.C.W. § 26.09.191(3)
² R.C.W. § 26.09.004(2)

All decisions about custody are supposed to be based on the “best interest” of the child.¹ A custody decision, as written into a parenting plan, will decide whether to give one parent sole decision-making authority or to give both parents mutual decision-making authority. Below, we discuss how a judge will decide what to order.

If the parents agree on how to divide up decision-making authority regarding the children’s education, health care, and religious upbringing, the judge will approve this parenting plan if:

• the judge believes both parents willingly agree to it; and
• it is consistent with any “limitations” on a parent’s decision-making authority, which could be due to a parent committing domestic violence, sexual assault, or child abuse or other factors.²

If the parents cannot agree on how to divide up decision-making authority in their proposed parenting plans, the judge can order sole decision-making authority to one parent if:

• both parents are opposed to mutual decision-making;
• one parent reasonably opposes mutual decision-making; or
• a limitation on the other parent’s decision-making authority is required by RCW 26.09.191. Note: The “limitations” could be due to a parent committing domestic violence, sexual assault, or child abuse or other factors.³

When deciding whether or not to order mutual decision-making, the judge will consider:

• the history of each parent’s participation in deciding issues regarding the children’s education, health care, and religious upbringing;
• whether or not the parents have a demonstrated ability and desire to cooperate with one another in making decisions regarding the children’s education, health care, and religious upbringing;
• how close the parents live to each other to the extent that it affects their ability to make timely mutual decisions; and
• the existence of any limitation under RCW 26.09.191, which could be due to a parent committing domestic violence, sexual assault, or child abuse or other factors.⁴

If a parent or someone with whom the parent lives has committed domestic violence, sexual assault, or child abuse, the judge must consider these factors when deciding decision-making. For more information, see the questions in the section called When the parent or someone who lives with the parent is abusive.

¹ R.C.W. § 26.09.187
² R.C.W. § 26.09.187(2)(a); see R.C.W. § 26.09.184(5)(a)
³ R.C.W. § 26.09.187(2)(b)
⁴ R.C.W. § 26.09.187(2)(c)

If a parent or guardian asks for shared parenting time of a child and the judge denies the request, the judge will usually put the reasons s/he denied your request on the court record. A judge can put his/her reasons on the court record by either stating his/her reasoning to you during a court hearing or by putting the reasons in writing.

Generally, you can only file for custody in the “home state” of the child.¹  The “home state” is the state where your child has lived with a parent or a person acting as a parent for at least six consecutive months.  If your child is less than 6 months old, then your child’s home state is the state where s/he has lived since birth. Leaving the state for a short period of time, such as going on vacation, does not change your child’s home state.²

If you and your child recently moved to a new state, generally you cannot file for custody in that new state until you have lived there for at least six months.  Until then, you or the other parent can start a custody action in the state where your child has most recently lived for at least 6 months.  There are exceptions to the “home state” rule.  Please see Can I change the state where the case is being heard? for more information.

Here are some examples of the “home state” rule:

My children lived in Alabama their whole lives.  We just moved to Washington a few weeks ago. In my case, Alabama is my children’s “home state”.  If I want to file for custody right now, I will probably need to file in Alabama.

My children lived in Florida for six months.  We moved to Washington five months ago.  Because the kids haven’t lived in Washington for six months yet, Florida is still the children’s home state. If I want to file for custody right now, I will probably need to file in Florida.

My children lived in Michigan for their whole lives until we moved to Washington six months ago. Because the children have lived in Washington for six months, Washington is likely their “home state.”  I will likely need to file for custody in Washington.

My children lived in Washington until they left to live with their father in Alabama two months ago. Because they haven’t lived in Alabama for six months yet, their home state is still Washington.  If I want to file for custody, I can most likely file in Washington.

¹ R.C.W. § 26.27.201
² R.C.W. § 26.27.021(7)

The specific steps for getting a parenting plan may vary, depending on your particular situation.  You will need to file the appropriate court action and fill out a series of forms including a proposed parenting plan, which includes a “residential schedule.”¹

If the other parent or someone with whom the other parent lives has a history of acts of domestic violence, you can request that the other parent receive limited or no time with the child.  There are also other possible reasons why that parent’s time with the child should be restricted.²  Please see How will a judge make a decision about custody? for more information.

If you are going to file for custody without an attorney, you can find custody forms on our WA Download Court Forms page.  You may also be able to obtain self-help information from the Northwest Justice Project’s CLEAR (Coordinated Legal Education, Advice and Referral) hotline at 1-888-387-7111.  You can also find contact information for legal services on our WA Finding a Lawyer page.  Custody matters are often complicated and if you can have a lawyer draft the paperwork for you, it might make the process much easier for you.

¹ For a copy of a “residential schedule,” see the WA Courts website or our WA Download Court Forms page
² R.C.W. § 26.09.191(2)(a)

A parent who does not have parenting time with the child has the same access to the medical, dental, school, and other records of the child as the custodial parent has unless the judge entered an order that limits the rights of the parent.¹

¹ R.C.W. § 26.09.225

Because parenting plans are decided in the best interest of the child, an order is not usually permanent.  If you have a parenting plan already in place, you can ask the judge to make changes or modify the plan.  The general rule is that you can only ask to change a parenting plan if there has been a “substantial change in circumstances” since your last hearing.¹  In Washington state, a charge of domestic violence may constitute a substantial change in circumstances.  If domestic violence has occurred, changing the parenting plan may be necessary to protect the best interests of the child.  You will have to show that the child’s environment is harmful to his/her physical, mental, or emotional health.²  The judge will also restrict a parent’s time with the child based on a parent’s sexual assault convictions, or the sexual assault convictions of a person living with a parent.³  The judge may also change the parenting plan if the parent who does not have primary custody fails to exercise his/her right to visitation for a year.⁴

In addition, if both parents agree on the modification, the court is likely to grant the modification without a substantial change in circumstances.⁵ 

Note: If the judge finds that a motion to modify an existing parenting plan was made in bad faith, the party who filed the motion will be responsible for the court costs and attorney’s fees of the other party.⁶

To change a parenting plan, you will need to go to the court that issued the order (even if you have moved).  You will need to file a motion for a change in the parenting plan and an affidavit which states the facts supporting the request.  The other parent will then receive a copy of these documents so that s/he has the opportunity to file a response, or tell his/her side of the story. The judge will then make a decision based on these affidavits about whether or not you have shown adequate cause to have a hearing.  If the judge decides you have shown adequate cause, a hearing will be scheduled so that the judge can make a decision on your motion (request).⁷ 

If you are trying to change, get rid of (“vacate”), or enforce a part of an order pertaining to custody or visitation of a child, the judge may order the other parent to pay your attorney and court fees at your request.  In figuring out whether to award fees and costs, the judge will look at the financial situation of you and the other parent and whether you have acted in good faith.⁸

As with all custody issues, we recommend that you talk to a lawyer about this. Go to the WA Finding a Lawyer page to find a list of legal resources in Washington.

¹ R.C.W. § 26.09.260(1)
² R.C.W. § 26.09.260(1)-(2)(c)
³ R.C.W. §§ 26.09.260(4); 26.09.191
⁴ R.C.W. § 26.09.260(8)(a)
⁵ R.C.W. § 26.09.260(2)(a)
⁶ R.C.W. § 26.09.260(12)
⁷ R.C.W. § 26.09.270
⁸ R.C.W. § 26.09.160

If a parent receives military deployment orders that require him/her to move a substantial distance from his/her home or the military deployment orders would affect his/her ability to exercise parental or visitation rights, then the judge may be able to temporarily assign his/her custody and visitation rights to the child’s family member (including a step-parent) or another person with a close relationship to the child. The judge must also decide whether or not assigning residential time or visitation rights is in the child’s best interest. The judge cannot assign residential time or visitation rights to a person who would otherwise not be allowed to have those rights, such as a parent who committed child abuse. For more information about in what situations a parent would not be able to get these temporary visitation or custody rights, see the questions in the section called When the parent or someone who lives with the parent is abusive.

Any assignment of custody or visitation rights during the deployed parent’s absence does not give the temporary custodian (caretaker) the right to file for a separate custody or visitation order.¹

¹ R.C.W. § 26.09.260(12)

There is very specific information that must be included in the notice of intended relocation. You can read about what needs to be included in the notice by going to our WA Statutes page and reading section 26.09.440 of the law, sub-sections (2)(a) and (2)(b).

There are also specific requirements about how the notice must be served. The notice of the intended relocation, with all of the required information, must be:

1. given by personal service or any form of mail requiring a return receipt to each person who should be given notice; and
2. given:
   • at least 60 days before the date of the intended relocation of the child; or
   • if it is not possible to give at least 60 days’ notice because you did not know (and could not reasonably have known) the information that you have to provide in the notice and it is not reasonable to delay the relocation, you must give the notice no more than 5 days after you know the required information.¹

Note: There are exceptions to the notice requirements if you are entering a domestic violence shelter or if you are relocating to avoid a clear, immediate, and unreasonable risk to the health or safety of you or your child - in these cases, notice may be delayed for twenty-one days. Also, if you believe that the health or safety of you or your child would be unreasonably put at risk by giving notice or by revealing certain information in the notice, you can file for an ex parte hearing and the judge may waive all or part of the notice requirements. “Ex parte” means that the judge can hold a hearing or issue an order without the other party having prior notice or being in court. If you are in the Address Confidentiality Program or you have a court order that allows you to withhold some or all of the information in the notice, you may not have to provide the confidential or protected information in the notice.²

For information on any forms you may need to file to relocate or to object to a relocation, you may want to talk to a lawyer or ask the court clerk. You can find legal referrals on our WA Finding a Lawyer page and court contact information on our WA Courthouse Locations page.

For more information, the Legal Voice and Washington LawHelp have the following self-help packets about relocation, which you may find useful: Self-Help Guide for Getting an Ex Parte Order to Move with Your Children; Self-Help Guide to Following Washington’s Relocation Law; and Questions and Answers about Washington’s Relocation Law.

¹ R.C.W. § 26.09.440(1)
² R.C.W. § 26.09.460(1)-(4)

The law in Washington “presumes” that in most situations, a parent’s request to relocate will be allowed. This means that the judge will assume that moving with the child is in the child’s best interests. However, the other parent can object to the move and try to convince the judge to not allow the move. If a parent objects to the move, the judge will consider these factors when making a final decision:

• the strength, nature, quality, and extent of involvement with the parents, siblings, and other people of importance in the child’s life;
• any prior agreements between the parties;
• whether it would be more harmful for the child to lose contact with the parent who is moving, or with the parent who is left behind;
• whether either parent has parenting time restrictions due to domestic violence, sex crimes, or other offenses;
• the reasons of each parent in seeking and opposing relocation;
• the age and needs of the child, and what impact a move might have on the child’s development;
• the quality of life and resources available to the child in either location;
• the availability of ways to maintain a relationship with the left-behind parent;
• any alternatives to relocation; and
• the financial impact and logistics of the move.¹

Note: If you and the other parent share “substantially equal parenting time” (45% to 55%), then the judge will not automatically assume (presume) that the move will be allowed. Instead, the judge will consider whether the move is in the best interests of the child.²

¹ R.C.W. § 26.09.520
² R.C.W. § 26.09.525