From time to time, the state legislature makes changes to the laws regarding parenting plans (RCW 26.09). In 2019 and 2020, two bills were introduced that would have a big impact on decision-making, residential time, modification of parenting plans, and dispute resolution. It is not certain that the legislature will take these bills up again during their regular session in January 2021, but given that they have been in the works for two years, I think it is highly likely that they will be reintroduced.
The below is a summary of the proposed legislation for anyone with children who may be considering divorce, or thinking about relocating or modifying their parenting plan.
This first thing this bill does is change the criteria the court must consider when deciding to grant sole decision-making authority to one parent. Currently, the court must require joint decision-making unless one parent is opposed to joint decision-making, and there are limitations on a parent based behavior defined on RCW 26.09.191, a history of sole decision making by one parent, an inability of the parents to cooperate in decision making, or distance between the parents that makes timely joint decisions impractical. The bill would expand these criteria to allow the court to order sole decision-making if a parent knowingly and voluntarily conceded decision-making authority to the other parent. (Parents frequently agree to limit some or all decision-making to one parent, so it is a welcome change for the new law to condone this.)
The bill also prohibits a court from making any presumption regarding decision-making in favor of one parent solely because of his/her/their sex. (I have never seen a court make a decision on this basis, but I am sure it has happened. It would be nice to see it explicitly prohibited by the law.)
Finally, courts will be required to enter written findings supporting why sole decision-making is in the children’s best interests. If this bill passes, it will be important for parents wishing to include sole decision-making in their parenting plan to consult with an attorney to make sure their plan includes sufficient findings.
This bill would also change the criteria the court uses to make residential provisions for children in RCW 26.09.187. It would explicitly prohibit a court from presuming that a parent is more qualified than the other parent or be provided with more residential time with the children solely because of his/her/their sex. (Again, I have never seen a court make a decision on this basis, but I imagine it has happened. It would be nice to see this explicitly prohibited.)
The bill also adds a new factor for consideration when making residential provisions: “the need for a frequent, continuing, and meaningful relationship with both parents and the ability and willingness of each parent to actively perform parenting functions…” These factors will be at odds with each other in many cases, so I see this as a balancing test.
The third – and most notable – change this bill would make is the required presumption that it is in the best interests of the children to establish an equal residential schedule unless behavioral factors in RCW 26.09.191 are present or the parents have agreed to a different allocation of parenting time. The presumption is rebuttable and must be made by “clear and convincing evidence.” This requirement applies to both temporary and final parenting plans. This is a significant change from the court’s current position, which tends to favor maintaining the status quo for children in temporary plans. This change could lead to significant disruptions for children who have historically been cared for primarily by one parent.
Modification of Parenting Plans
Modification of a parenting plan based on a party’s failure to comply with a residential schedule currently requires two findings of contempt within three years. The bill adds a provision to RCW 26.09.260 that would make it easier for a parent to modify the parenting based on a single finding that the other parent “has demonstrated an inability or unwillingness to allow the child frequent and meaningful contact with the other parent.” This must be in violation of the residential schedule and be without good cause.
This bill includes all the same provisions as HB 1050. In addition, it addresses issues related to mediation and consideration of employment when making or modifying a residential schedule.
Unless there is an issue of domestic violence or any other limiting factor in RCW 26.09.191, parties are often required to participate in mediation to resolve disputes regarding parenting plans before addressing the issue in a court hearing. Sometimes there is disagreement over whether an issue was addressed in mediation. This bill would require parties to file a form with the court indicating which issues need to be addressed or were addressed in mediation. The bill would also allow a parenting plan to designate some issues for mediation and preclude others.
The bill would preclude the court from limiting a parent’s time in the parenting plan based on their employment schedule, if that parent has another reasonable person who can provide care for the children during schedule conflicts.
In addition, this bill would mandate that the court create a schedule that provides consistency for children during the school week.
Modification of Parenting Plan
In addition to allowing a modification based on a failure to comply with the residential schedule, this bill would also allow an adjustment to the residential schedule based solely on a “substantial change in the employment schedule of either parent.”
Parties have always been required to declare that the information they provide the court is true and correct. There is little consequence, however, beyond damaging their own reputation, if a party lies to the court. This bill would make it an explicit crime to knowingly provide false information in declarations or testimony regarding parenting issues and make that person subject to prosecution. If passed, it remains to be seen whether the prosecutor’s office will have the resources to enforce this provision.
Although it is uncertain whether these changes will take effect, it is essential to plan, anticipate, and prepare for presenting your case or negotiating outcomes based on the current law and potential changes in the law. Reed Longyear’s Family Law Attorneys are available to discuss your family’s situation and help you proactively address issues that may arise in the future. To make an appointment, call us at 206-624-6271, or email us firstname.lastname@example.org.