Articles Posted in Child Support, Parenting Plans

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custodyWhen one parent seeks a protection order against the other parent, they often ask that the order also be applied to the children.  However, when a court issues a domestic violence protection order, any provisions addressing the residential arrangement of minor children must be made in accordance with Washington child custody laws.  The court must make findings as to the relevant factors justifying the modification.  In a recent case, a Washington appeals court considered whether a protection order that included the child was an improper modification of the parenting plan.

The couple divorced in 2015 and the parenting plan gave each parent 50% residential time with their child.  In 2017, the ex-wife petitioned for a protection order, alleging her ex-husband had given her a threatening letter.  In the letter, he stated he had two things to live for:  “redemption by taking revenge on [his ex-wife]…” and protecting his son.  The wife also provided a post on a website purportedly made by the ex-husband in 2015, stating he “contemplated murder and considered violence” but that his “son was too young to be separated from his mother permanently.

Following a hearing, the commissioner issued a protection order restraining the ex-husband from contact with the ex-wife or the child except for his supervised visits.

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In a Washington divorce, parents generally cannot escape child support obligations by being voluntarily underemployed.  If the court finds the parent is underemployed for the purpose of reducing the child support obligation, the court can calculate child support based on imputed income.  A Washington court recently considered whether a father was subject to imputed income because he stopped working overtime after the separation.

boatIn her motion for child support, the wife alleged the husband was voluntarily underemployed.  The trial court entered a child support order, imputing income to the husband based on past earnings.  The husband appealed.

The husband argued the court erred in finding him voluntarily underemployed and in imputing his income. The husband owns and operates a commercial harvest diving business. He previously owned and operated as many as four commercial dive boats and worked as boat captain and diver until about six months before the separation.  He stated he had previously worked over 80 hours per week and worked out of town for weeks at a time.  He claimed he had been able to work so much during the marriage because the wife had been a stay-at-home mother and homemaker.  He argued he was unable to maintain that schedule and care for his children on the shared schedule.  His salary dropped from $146,884 in 2015 to $93,094 in 2016.

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Sometimes in a Washington child support case, a parent may seek credit for expenses during their residential time or a modification of the custody arrangement in an effort to reduce child support payments.  However, the parent must show adequate cause to modify the parenting plan to change the custody arrangement.  A Washington appeals court recently considered a husband’s efforts to reduce his child support obligation.

swingThe parties divorced after approximately 11 years of marriage.  The agreed parenting plan allowed equal residential time with the two children, and other agreed orders required the husband to pay $1,700 in child support and $900 in maintenance each month.

In 2012, the husband moved to adjust child support due to the child care expenses he paid while he had the kids.  The court denied the motion, noting a residential credit could not be considered in a motion for adjustment but should instead be raised in a petition to modify.  A couple of months later, the husband filed a petition to modify the child support.  The court found he failed to demonstrate a substantial change in circumstances and denied the petition.  It also awarded the wife attorney’s fees and costs.

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Under Washington child custody law, there is a rebuttable presumption in favor of granting a parent’s request for relocation.  To deny a relocation, the trial court must find that its detrimental effect would outweigh the benefits to the child and the parent seeking relocation.  RCW 26.09.520 sets forth 11 factors to be considered by the court.

boxIn a recent case, a mother appealed a trial court’s denial of her request to relocate and its modification naming the father as the primary residential parent.  The agreed parenting plan had named the mother as the primary residential parent and allowed the father residential time on Wednesday evenings and every other weekend.  The parents lived within 7.6 miles of each other.

The mother subsequently filed a Child Relocation Act petition.  The husband responded by seeking primary residential placement.  The trial court granted the mother a temporary relocation order, and the mother and children moved about 30 miles away from the father.

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Courts sometimes make mistakes in parenting plans.  A court’s ability to modify a parenting plan is limited, but its ability to clarify an existing plan is broader.  Washington child custody attorneys know that whether an order changing a parenting plan is considered a modification or a clarification may be the determining factor in whether the change is valid, as seen in a recent case.

toysThe case involved a father with a history of mental health issues, marijuana use, and erratic behavior.  This behavior included what the appeals court described as “obsessing” over his daughter being sexually abused.  The trial court included in the parenting plan a provision that allowed the mother to temporarily suspend the father’s visitation right in the event he began acting erratically, or if there was “objective evidence of decompensation or elevated paranoia.”  She could request that he seek a mental health evaluation.  The father’s residential time was to resume when the doctor approved him to have overnight time with the child.  The provision required the mother to file an affidavit/declaration within three business days of the incident.

The mother invoked this provision a week after the entry of the parenting plan.  The father underwent a psychological examination, but the mother did not believe it was sufficient and did not allow visitation to resume. Continue reading

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Tax exemptions can be a contentious issue in custody cases.  Washington child custody attorneys know that the allocation of tax exemptions can have a significant financial impact on the parties.

calculatorA recent Washington appeals court decision addressed a case in which the mother claimed the tax exemption for her younger child in two years despite the court’s order allocating the exemption to her former husband in those years.  The order in effect at the time split the exemptions for the two children between the parents as long as the exemption existed for the older child.  When there was no longer an exemption for the older child, the exemption for the younger child would alternate.

Under the order, the father had the right to the exemption in 2012, but both parties claimed it.  Consequently, the father was audited and had to pay the IRS more than $2,000.  He moved to have the mother held in contempt and asked the court to require the mother to sign a dependency exemption waiver for 2012 and 2014.  The mother argued she claimed the exemption because the father had not paid his share of the child’s medical expenses.

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New parents face difficult decisions regarding health care.  Sometimes, the best option for the family is for one parent to limit his or her work schedule to care for the child.  Washington child support attorneys know, however, that when a couple divorces, this issue can become contentious.  The court must decide how much income to impute to the spouse who is not working full-time.  A Washington appeals court faced this issue in a recent case, which was further complicated by the fact that one of the children has special needs.

teddy bearThe couple had three children under the age of five when they separated.  The wife works part-time and nets less than $2,200 per month.  Her husband nets more than twice as much.  The court found she would net around $3,500 if she worked full-time.

Working part-time allows the mother to care for the youngest child.  The child has a genetic disorder that causes a number of medical conditions, and the court noted his special needs will increase over time.

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Child care is often a contentious issue in Washington family law cases.  A parent may object to the child care arrangements made by the other parent, not want a specific person to watch the child, or want the opportunity to take the child when the other parent is unavailable.  Sometimes, a parenting plan addresses this issue by including a right of first refusal.  The right of first refusal requires that the other parent be given the opportunity to care for the child when the parent with residential time is unavailable.  A right of first refusal is generally only used when the parents have been cooperative and shown an ability to co-parent.  As a recent case shows, the parenting plan should provide some parameters and details about how the right works.

school busThe child in this case was born after a brief dating relationship between the mother and the father.  The mother received no assistance from the father during her pregnancy or the first 15 months of the child’s life.

When a temporary parenting plan was entered in 2009, the court-appointed guardian ad litem (GAL) noted that some of the father’s behavior was consistent with that shown by perpetrators of domestic violence.  The GAL noted there were no allegations of physical aggression toward the mother or child, but they expressed concern that the father’s behavior may have a negative effect on the child’s emotional well-being or even escalate to physical violence.

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The modification of a Washington parenting plan over the other parent’s objection can be difficult.  In fact, there is a presumption against it.  Washington child custody attorneys know that Washington courts have recognized that children have a strong interest in finality in their living arrangements.  Courts will not disturb the residential arrangements in a parenting plan over a parent’s objection unless there has been a substantial change in circumstances, and the modification is in the child’s best interest.  The court must deny a motion to modify unless it finds adequate cause to hear the motion.

boxA recent case explored the issue of adequate cause.  The father petitioned to modify the parenting plan.  He and his former wife had two children together.  In the parenting plan, the mother was designated as the residential parent, and the father was given residential time with the kids on alternating weekends, winter breaks, mid-winter breaks, and spring breaks.  He was also given residential time during half of the holidays.

The parents cooperated on parenting after the divorce, spending holidays together.  The mother began a relationship with another man in 2012, and the father remarried.

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teddy bearWashington child custody rules do not favor modifying parenting plans to decrease visitation.  A court may, however, modify a parenting plan if it finds, based on information that occurred after the decree or that was unknown to the court at the time, that there has been a substantial change that makes a modification necessary to serve the child’s best interests.  RCW 26.09.260.  Additionally, restrictions or limitations may be appropriate when certain circumstances are present.  A court may, for example, preclude or limit a provision in the parenting plan if the parent’s involvement is not in the child’s best interest, and one or more specified factors are present.  Those factors include neglect, long-term impairment, and withholding access to the child from the other parent.  Additionally, one of the listed factors is essentially any other factor the court finds to be adverse to the child’s best interests.  RCW 26.09.194.  Even when a court does place limitations or restrictions on visitation, it may put something in place to allow the parent to work toward resuming regular visitation.  This process may include working with a counselor or therapist to ensure that resumption of the visitation is in the child’s best interest.

A mother recently challenged a court’s restriction on her visitation on a number of grounds, including the engagement of a counselor to make recommendations on reinstating visitation.  The previous parenting plan ordered the daughter to reside with her father and visit her mother every other weekend.

The mother petitioned for increased visitation when she married several years later.  The father petitioned to decrease her visitation, alleging physical and emotional abuse of the daughter, domestic violence in the mother’s home, and abusive use of conflict.  The trial court granted the father’s petition and suspended the mother’s visitation for 45 days.

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