Who should get custody? Thinking about the Children in Divorce or Paternity Matters
Disputes over custody are complex and can be very emotional, especially when children are involved. Understandably, parents will often over-simplify the situation with questions like: "Will the court give me custody? The children want to live with me. They tell me this all the time." Unfortunately, custody disputes are not that simple. The court must rule in the "best interest" of the child(ren). Determining their "best interest" is left to the discretion of the court.
Public policy, the law, and the courts want children to foster relationships with both parents. Yet, the number of people asking about sole custody is astonishing. The court does not regularly award sole custody, which is generally viewed as not in the best interests of the child.
RCW 26.09.191 covers factors that the court will consider in deciding to limit the noncustodial parent's time with the children. Factors include: a) willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions; (b) physical, sexual, or a pattern of emotional abuse of a child; or (c) a history of acts of domestic violence or an assault or sexual assault which causes grievous bodily harm or the fear of such harm. Legal interpretation is required to fully understand the application to specific cases.
Family law disputes tend to put one party's word against the other party's. Therefore, one must have concrete facts and evidence to support claims against the opposing party. To sort out the discrepancies between conflicting stories, the court may order the placement of a Guardian Ad Litem (GAL). A GAL is an individual appointed by the court to represent the best interests of the child. The GAL will conduct an investigation and recommend actions for the court to take in the best interests of the child. The court will give the report as much evidentiary weight as it sees fit. From my experience, the GAL reports weigh heavily on the courts final decision.
I hope this information provides some context on the complex process of custody disputes. Many family disputes can be resolved if the parties keep their emotions in check and take into account how they want their children to know how they handled their differences. Resolution by the involved parties is the best case solution in family law cases. Resolution by lawyers and judges acting in the best interests of the child but who have limited knowledge of a particular family's history can provide suboptimal outcomes.
As I said earlier, disputes over custody are complex and can be very emotional. The legal process in court and the drafting and entering of pleadings can be an intricate process. If you are faced with these issues, I recommend that you consult with an experienced family law attorney to determine the best course of action.
Jorge Ramos is a family law attorney with the Kent law firm of Hanis Irvine Prothero, PLLC. He can be reached at (253) 520-5000 or by email at firstname.lastname@example.org.