Articles Posted in Family Law

A trial court in a Washington divorce case has broad discretion to justly and equitably distribute the property.  The court must analysis the relevant factors as set forth in RCW 26.09.080. The court may distribute both community and separate property and does not need to find exceptional circumstance to support awarding part of one spouse’s separate property to the other. Additionally, it may be fair and equitable for the court to award one spouse’s separate property to the other spouse who has less earning capacity. A former husband recently challenged a division that awarded the former wife a share of his retirement and pension, including his premarital retirement assets.

According to the appeals court’s unpublished opinion, the parties were married for about ten years when they separated in 2019.  In March 2021, the wife petitioned for legal separation, and that petition subsequently became a petition for dissolution. The trial focused on the property distribution.  Although there was a prenuptial agreement, the trial court found it was unenforceable.

The wife had worked as a flight attendant and later became a stay-at-home mother after the children were born.  She worked as an Amazon courier when the trial occurred.  She had about $85,000 in her retirement account.

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Allegations of domestic violence can affect a Washington custody case.  A Washington appeals court recently considered whether a child could pursue a Domestic Violence Protection Order (“DVPO”) against his mother after another court denied his father’s petition to modify custody based on the same domestic violence allegations.

Walla Walla County Proceedings

When the parents divorced in 2016 or 2017, the parenting plan named the mother as primary parent and gave the father visitation.

According to the unpublished opinion of the appeals court, the father petitioned for an immediate restraining order protecting him and the child from the mother in Walla Walla County in June 2022.  At the same time, he petitioned for modification of the parenting plan, alleging the mother had been verbally and physically abusive toward the child and that the child refused to go back to her home.  He attached a large number of text messages between the mother and the child. The trial ultimately found there was “no substantial change of circumstances” and denied the father’s modification petition and awarded the mother attorney’s fees.

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Pursuant to RCW 26.09.191(5), a court in a Washington custody case may not draw presumptions from the provisions of the temporary parenting plan when it enters a permanent parenting plan.  The court must instead base the permanent residential custody on the child’s best interest as determined at trial.  The court generally must consider the factors set forth in RCW 26.09.187(3)(a), which relate to the child’s relationship with each parent, knowing and voluntary agreements between the parties, each parent’s performance of parenting functions, the child’s developmental level and emotional needs, the child’s relationship with significant people and involvement in activities and with the physical surroundings, the wishes of the parents and the child if mature enough, and each parent’s employment schedule.  A mother recently challenged a parenting plan, arguing the trial court had improperly drawn presumptions from the temporary plan and had improperly applied the factors.

According to the appeals court’s opinion, the original parenting plan in Arizona granted substantially equal parenting time.  The father had moved to Spokane by the time it was entered.

The father petitioned for modification in Spokane County, alleging the mother had moved to Virginia.  A temporary parenting plan gave him primary placement and allowed the mother visitation in Spokane. Three factors were at issue in the appeal.

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In a recent Washington custody case, a mother challenged a parenting plan that required her to undergo a particular form of therapy to receive equal residential time with the child.  An appeals court reviews the provisions of a parenting plan under a manifest abuse of discretion standard, meaning the trial’s decision is manifestly unreasonable or based on untenable grounds or reasons.

The parents were in a committed intimate relationship from the middle of 2015 to late 2018.  They had a child in September 2017.  Each party had alleged intimate partner violence against the other.  The mother was arrested for domestic violence in September 2018, but the father’s petition for a protection order was dismissed for lack of evidence.

The mother petitioned for a parenting plan, among other things.  The court entered a temporary parenting plan that gave the parties equal residential time and joint education and healthcare decision-making.  The court appointed a parenting coordinator who conducted a parenting evaluation.

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Washington family law recognizes Committed Intimate Relationships (“CIRs”), which are stable relationships, similar to a marriage, in which the parties live together knowing that they are not lawfully married.  CIRs have also been referred to as “meretricious relationships.” Washington courts consider five factors to determine if a CIR exists: whether the parties have continuously cohabitated, the length of the relation, the relationship’s purpose, whether the parties pooled their resources and services, and the parties’ intent.  If the court determines there is a CIR, it then must determine the parties’ interest in the property acquired during the CIR and distribute the property in a just and equitable manner.  Connell v. Francisco.

A man recently challenged a court’s finding of a CIR and division of property. The parties were in a romantic relationship from 2008 to September 2020, according to the appeals court’s unpublished opinion.  They purchased a home and lived together from December 2012 until they broke up.  The female partner made the down payment on the home, but they otherwise paid bills equally.  They had two children.

The female partner alleged the male partner committed domestic violence.  She petitioned for division of the property of a CIR.  She separately petitioned to establish parentage of the children and sought a parenting plan and dissolution of the CIR.

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Trial courts have broad discretion to create a parenting plan, and abuse that discretion only if they make a decision that is manifestly unreasonable or based on untenable grounds or reasons.  In re Marriage of Littlefield. A mother recently appealed a parenting plan allowing the father parenting time on the Sabbath both parents claimed to observe according to the Seventh-day Adventist faith.

The final parenting plan identified the mother as the primary parent and the parties entered an order by agreement for the father’s visitation.

The father objected when the mother moved for relocation.  A temporary order allowed the move and gave the father one weekend a month for eight hours each on Friday, Saturday, and Sunday.

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Who gets to claim the children as dependents on their tax returns can be a contentious issue in a Washington custody case.  A father recently sought a contempt order against the mother when she claimed one of the children as a dependent.

According to the appeals court’s unpublished opinion, the parties entered into an agreed child support order when they divorced in 2009.  The trial court’s final child support order provided that the mother would have the right to claim the child identified as T.A.R. as a dependent on her taxes and the father had the right to claim the child identified as M.A.R. The order further provided that “WHEN THERE IS ONLY ONE CHILD ELIGIBLE FOR TAX DEDUCTION PURPOSES,” the mother would have the right to claim the children for even years and the other parent would have the right to claim them “for the opposite years.”

After learning the mother claimed T.A.R. in the 2021 tax year,  the father moved for an order to show cause why the mother should not be held in contempt, arguing she violated the order when she claimed T.A.R. in 2021 after M.A.R. had  turned eighteen. He argued the alternating clause applied after M.A.R. turned eighteen because T.A.R. was then the only “child.” He acknowledged he could have claimed M.A.R., but argued he only would have received $500 by doing so, while he would have a $6,000 tax exemption if he claimed T.A.R.

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In some circumstances, Washington family law may recognize a person as a de facto parent, or a person who is not a child’s biological or adoptive parent, but who has the rights and responsibilities of a legal parent.  A person seeking to be declared a de facto parent must prove the elements set forth in RCW 26.26A.440(4) by a preponderance of the evidence.  They must show that they lived with the child for a significant period, consistently took care of the child, engaged in “full and permanent” parenting responsibilities without expectation of compensation, held the child out as their own, and established a parental relationship with the child that was “fostered or supported” by another parent of the child.  Additionally, they must show that continuing the relationship is in the child’s best interest.

A mother recently appealed a court order awarding her former romantic partner the rights of a legal parent to her child.  According to the appeals court, the mother’s relationship with the petitioner began while she was pregnant with the child and continued until the child was about nine years old.  The petitioner was not the child’s biological father, but petitioned for de facto parentage after his relationship with the mother ended. The mother wanted to move out of state to be closer to her family, but remained in Clark County to respond to the petition.


The petitioner alleged he provided the child “emotional and material support.” He filed documents, including evidence the school listed him as the child’s guardian and emails with the child’s teacher, principal, and school counselor.  He also submitted transcripts of videos in which he and the mother stated he would be the child’s father and the child called him “daddy.”

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Washington family law recognizes a rebuttable presumption that relocation of a child under a parenting plan will be permitted.  That presumption does not apply, however, if the parents have “substantially equal residential time.” “Substantially equal time” generally means the child spends at least 45% of their residential time with each parent pursuant to a court order. RCW 26.09.525. A father recently challenged a relocation, partly because the trial court applied the presumption by considering how the residential time changed under a Domestic Violence Protection Order (“DVPO”).

According to the appeals court’s opinion, the mother sought a DVPO against the father after seeing severe bruising on their two-year-old daughter.

The mother filed a notice of intent to move the children.  She asked that the father be evaluated for substance abuse and anger management or domestic violence and comply with the treatment recommendations. She also requested the court suspend his residential time for non-compliance.

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When a parent seeks a Washington domestic violence protection order (“DVPO”), they may want to include their minor children as protected parties.  If the protection order is against the other parent, it can affect that parent’s visitation and custody.  In a recent case, a mother appealed a DVPO that did not include her three-year-old child as a protected party.

The appeals court’s opinion stated the mother had petitioned for a protection order to protect herself and her child against her boyfriend, who was also the child’s father.  She requested an order restraining him from any contact with her or the child, from coming within 1,000 feet of her home or workplace or the child’s daycare.  She asked for sole custody of the child.  She asked the court to order the father to participate in treatment or counseling.  She requested the order be effective for over a year.

She alleged multiple incidents of domestic violence by the father, including incidents in which she said he shoved her and threatened her.  She stated the father was under investigation for an incident in which he threw her against the wall and to the floor, choked her, and banged her head against the floor.  She alleged this incident occurred in front of the child.

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