About the Children: Custody, Visitation, Non-Biological Parenthood

Custody and Visitation (Also for Non-Married Parents)

If you and your spouse or partner have children together who are under 18 years old, as part of your dissolution paperwork, you will have to file paperwork to establish custody and visitation, called a “Parenting Plan” or “Residential Schedule” as well as paperwork to establish child support. Non-married parents can also file a petition in superior court to establish a parenting plan.  Establishing or modifying a parenting plan or residential schedule is done through use of mandatory court forms.  In many cases, any modification to a parenting plan may also involve modifying or adjusting child support.

Establishing and modifying a parenting plan can be complex and challenging. If one parent is moving to a different state, you may have to address issues under federal law as well as state law. If the child is Native American, there are usually federal laws and possibly tribal laws that come into play as well (see below). It is important to seek legal advice before modifying an existing parenting plan.

Child Support

All parents have a legal obligation to help support their minor children financially.  Washington State vigorously enforces child support laws through the courts, county prosecutors’ offices, and through the Department of Social and Health Services’ Division of Child Support.

The Department of Social and Health Services (DSHS) Division of Child Support can help you calculate child support and fill out the correct forms to establish or modify child support (see the “Resources” section).  If you need help establishing child support, paying your child support, or collecting child support for your child, you should make an appointment with DSHS Division of Child Support.

Child support payments are set by the court or by DSHS depending on the income and expenses of each parent, the age of the children, and the amount of time each child spends with each parent, among other factors.  The amount of child support can be modified when there are changes in circumstances of either parent, such as getting a new job or loss of a job, or remarriage of either party – especially if there are children coming into the new marriage.  Child support payments also generally change as the children grow older, and their needs and expenses change.  Similarly, the parenting plan may change as the children grow older or when there is a change in circumstances of either parent, such as moving to another place.

Non-Parental (Third-Party) Custody

There are several ways in which someone can assume legal responsibility for someone else’s children.  Some methods provide for more legal authority than others.  In any of these situations, courts will evaluate what is in the child’s best interest when granting any sort of legal responsibility for the child to anyone other than the child’s parents.

One common legal avenue for granting custody over a child is “Non-Parental Custody” (NPC) known commonly as “Third Party Custody”.   NPC is a formal legal proceeding in Superior Court, and NPC must be granted by a judge, even if mutually agreed upon by the parties. NPC is not adoption, and does not terminate the biological parents’ legal rights. Most NPC orders will include visitation rights for the parents, as in other parenting plans or residential schedules discussed above.

NPC can come about by mutual agreement of the parents and the person(s) gaining custody, but more commonly, NPC proceedings in court are started because the person seeking NPC has concerns about the ability of the parents to be fit parents, or because the state has required a change of custody due to concerns about the welfare of the child. An order of NPC can be for a specific period of time or indefinite.  Because NPC is granted by the courts, it generally must also be formally terminated or modified by the courts, unless the NPC order is for a specified period of time.

Some common scenarios when NPC is appropriate:

  • The parents are temporarily unable to care for the child due to health problems, incarceration, or extended absence such as military deployment.
  • The parents have been found to be a danger to the child by Child Protective Services (CPS). CPS will often try and find a relative of the child to take NPC.
  • The child – especially during adolescence – is having serious problems at home, and all parties agree that the child would do better living elsewhere – usually with a relative or at another friend’s home.

There are other ways to provide a non-parent with legal responsibility or authority over a child that are less cumbersome – and are faster – than seeking NPC. This can be as simple as a written, signed letter from the parent granting temporary responsibility for the child – such as a parent’s permission slip for a field trip.  Such letters can be more extensive, for example, providing another person with authority over school decisions while a parent is on military deployment.  In some cases such letters must be legally notarized, but this scenario does not require involvement of the courts to initiate or end the arrangement.

Non-Biological Parents and Multiple Parent Families

In Washington, it is possible for more than just the two biological (or adoptive) parents to have custody or visitation rights for a child.  In a decision referred to as “In Re: L.B.”, the Washington Supreme Court established de facto parenthood.  This means that if someone has been serving in the role of an active parent in the child’s life, he or she can assert parental rights along with the biological or adoptive parents.

De facto parenthood can also be agreed to by contract between the parents and de facto parents.  For example, if a lesbian couple wants to conceive a child with a male friend as sperm donor, a contract can be drawn up acknowledging that everyone involved has equal rights as parents.

De facto parenthood is an unusual situation in family law. If your family is in that category, you should seek legal advice to make sure that everyone involved is able to protect their rights.  Make sure the lawyer you talk to is familiar with ‘In Re L.B.” and de facto parenthood.

Adoption

Adoption is the legal process by which someone becomes the legal parents of someone else’s biological child.  Some children have lost their parents and so someone steps forward to adopt them.  Some children are adopted after their biological parents’ parental rights are terminated because the biological parents are not capable of raising their own children. Sometimes adoption occurs when one parent remarries and all parties want the step-parent to become a legal parent.

Adoption terminates the parental rights of the parent(s) offering the child for adoption, including future child support obligations.  The adoptive parents gain all legal rights and responsibilities for the child.

Adoptions are completed by petitioning Superior Court for a Decree of Adoption. In most cases, DSHS is involved in the adoption process, though in some cases the parties can proceed on their own, or work with an adoption agency to complete the legal process.  As with all family law cases, there are mandatory court forms for filing for adoption and completing the adoption process.