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EspañolHow will a judge determine decision-making authority?
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.
If the parents agree on how to divide up decision-making power over 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
For more information the limitations referenced above, which can be required (mandatory) or optional (discretionary), see our section called When the parent or someone who lives with the parent is abusive.
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.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 about the children’s education, health care, and religious upbringing;
- whether or not the parents have shown an ability and desire to cooperate in making decisions about 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
- whether a limitation on either parent’s decision-making authority is required.4
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); see R.C.W. § 26.09.184(5)(a)
How will a judge make a decision about residential time?
All decisions about custody are supposed to be based on the “best interest” of the child. A custody decision, as written into a parenting plan, will decide what sort of residential parenting schedule will be in place. When deciding residential parenting time, the schedule is supposed to 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.1
As a first step, the judge will see if any “limitations” on residential time exist.1 For more information about these limitations, which can be required (mandatory) or optional (discretionary), see our section called When the parent or someone who lives with the parent is abusive.
If these limitations do not require the judge to restrict a parent’s residential time, the judge will consider the following factors:
- the relative strength, nature, and stability of the child’s relationship with each parent;
- any agreements the parents have made, as long as they were made knowingly and voluntarily;
- each parent’s past record of performing, and potential future ability to perform, parenting functions relating to the daily needs of the child, including if one parent has taken greater responsibility in doing this;
- the emotional needs and developmental level of the child;
- the child’s relationship with siblings and other significant adults;
- the child’s involvement with their physical surroundings, school, or other activities;
- each parent’s employment schedule;
- the wishes of the parents; and
- the wishes of a child who is mature enough to express their own preference about the residential schedule.1 Note: The judge would likely interview the child in chambers to find out the child’s wishes.3
The judge is required to give the most significant weight to the first factor listed above.1
1 R.C.W. § 26.09.187(3)(a)
2 R.C.W. § 26.09.210
If the judge won't give me time with my child, does s/he have to explain why?
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.
Do I need a lawyer?
Although a person can represent himself/herself in court, it is highly recommended that people going through a custody case try to get legal representation. The information we provide here should get you started and help you with basic questions you might have. However, custody issues are complicated, and parties frequently benefit from the help of a lawyer. Unfortunately, you do not have a right to have a lawyer appointed for you in a civil case, but you may be able to talk to a lawyer for free or get a low-cost consultation for legal advice. For a list of legal resources, please see our Washington Finding a Lawyer page.
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
Where can I file for custody? (Which state has jurisdiction?)
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)
Can I change the state where the case is being heard?
If you move to another state, you may be able to change the state where your custody case is being heard. You will have to ask the judge who is hearing the case in the previous state to change the venue or location of your case. Sometimes your previous or “home state” will allow another state to hear the case instead.1 However, before moving out of state, please talk to a lawyer for advice on whether or not this would be permitted based on your custody order. Generally, a parent may have to be in agreement with the other parent or get permission from the judge to move out of state.
Changing the state where a case is being heard is often complicated, and as with all custody issues, we recommend that you talk to a lawyer. See our Washington Finding a Lawyer page for legal assistance listings. For general information on changing the location of a court case, go to our Changing a final custody order section.
1 R.C.W. § 26.27.201
