A potentially radical change to Washington’s custody laws is now
on the books. Courts can now determine shared custody of a child regardless
of whether his or her parents indicate they will cooperate with the arrangement.
Surprised? Anyone who has talked to divorced parents might assume that
shared custody agreements, where children spend equal time with each parent,
are a given in family courts. But, before July 1, 2007, the rule in Washington
was that shared or joint physical custody didn’t really exist.
In reality, Washington State courts have long preferred a sole custody
and visitation arrangement, with one parent being the primary custodial
parent and the other noncustodial parent having visitation. The noncustodial
parent generally spends time with their kids every other weekend. While,
Washington courts often call this shared custody the truth is that it
is not. Generally the shared custody only covers shared decision making
around issues such as non-emergency medical care and public versus private school.
Under Washington State law, true shared custody was only possible under
two circumstances: the parents had agreed to shared custody; or, the parents
had a history of cooperation and shared parenting, were available to each
other, lived in geographic proximity to each other, and shared custody
was in the chil’s best interests.
Washington’s legislature required one of those two things to be true,
went the story, because shared custody required such a high level of cooperation
that it was not even possible unless both parents wanted it. Many doubters
of this theory would point out that an uncooperative parent can create
serious issues with sole custody and visitation arrangements, too, but
the remedy has not been to get rid of visitation.
Be that as it may, the rule against allowing one parent to meaningfully
litigate for shared custody became known in family law circles, at least
informally, as the uncooperative spouse rule. If one parent was not interested
in shared parenting, all that parent had to do was not cooperate with
the request for shared custody. Perhaps she would threaten to move. Or
perhaps he would make himself unavailable. That ability to thwart a shared
parenting request, in turn, made every parenting plan a make or break
custody case, with the winner taking primary custody and the loser seeing
the kids every other weekend. And of course, the parent most likely to
be awarded primary custody was the parent most likely to not cooperate
with a shared parenting request.
In July of this year, the rules changed. The legislature jettisoned all
the language in the statute (RCW 26.09.187) regarding agreement, cooperation,
and availability, in favor of what certainly appears to be a much less
To establish de facto parentage, the non-biological parent must prove four
independent factors to the court:
…[T]he court may order that a child frequently alternate his or
her residence between the households of the parents for brief and substantially
equal intervals of time if such provision is in the best interests of
the child. In determining whether such an arrangement is in the bests
interests of the child, the court may consider the parties’ geographic
proximity to the extent necessary to ensure the ability to share performance
of the parenting functions. (need to paraphrase)
Reading the above language, the first thing that leaps out is that a Washington
judge may now order shared custody if the judge believes it is in the
child’s best interests, regardless of how one (or both) of the parents
might feel about it.
Sure, the court may consider geographic proximity when determining what
is in the child’s best interests, but that appears to be far from
the end of the story. Viewed in this context, it is difficult to not consider
the change to be anything other than radical.
On the other hand, a judge who has applied the previous statute for the
last many years may be unlikely to view the above language as a radical
change. Instead, that judge’s preconceived notions of what a child’s
best interests require may continue to result in sole custody and visitation
So where do we go from here? Just as in other areas of the law, the new
statutory language must be litigated so that it can be interpreted. This
means, first and foremost, arguing for shared parenting plans at trial
and appealing those court decisions that do not award shared custody.
Custody determinations remain within the sound discretion of the trial
courts. However, getting each division, and ultimately the Supreme Court
to interpret and apply the new language, is the best way to keep this
important area of the law moving forward.