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 one of the most important decisions 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.
In Washington State, a series of statutes (RCW 26.09,181 to -.240) requires the court to establish a permanent Parenting Plan for the children, in great detail, which outlines when each child will reside with each parent. The statute mentions a number of important parental functions, and requires the court to indicate in the parenting plan 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 a court order, and is required in all marital dissolutions (divorces), annulments, legal separations, and parentage (paternity) cases involving minor children. Both parents are required to follow the parenting plan. Violation of the parenting plan is a contempt of court.
The statute contemplates that both parents should, whenever possible, have a continuing relationship with the children. Increasingly, courts, counselors, 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 for the children by a special investigative arm of the Court (in King County, Family Court Services), or a Guardian ad Litem (an option in King County, but required in Pierce and other counties). “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 other investigator, the recommendation made in the resulting report is normally adopted by the Court. I would venture to say that in about 80 percent of 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 factual 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 will interview friends, relatives, and other potential witnesses from lists supplied by both the mother and the father. If there has been any record of domestic violence, medical records or statements from counselors, those must be also reviewed. Observations of teachers and 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, alcoholism, 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 laboratory analysis of , hair follicles, finger nail clippings, or other objective testing. In appropriate cases, the Court has the power to order one or both parents to attend parenting classes or anger management counseling.