Raj Bains (Federal Way Family Law Attorney)

Saturday, April 15, 2017

Washington State Family Law & Divorce: Non-Parental (Third Party) Custody; Grandparents Rights

April 15, 2017 - Bains Law Firm

Non-parental custody actions are brought when third parties (people other than the actual parents) seek custody of minor children where either both parents are unfit, or where the children have been voluntarily placed with a third party by the parents.

Before a non-parental custody case can proceed, a party seeking nonparental custody is required to establish "adequate cause" for the petition. This is often referred to as a "threshold requirement". On January 19, 2017, the Washington State Supreme Court set forth that before a trial on the merits of a non-parental custody petition, a litigant must satisfy the threshold requirement of "adequate cause" by showing that the biological parent is either unfit or that placing the child in the parent's custody would result in actual detriment to the growth and development. If the court finds that there is not adequate cause to proceed with the case, the case will be dismissed. If the court finds that there is adequate cause, temporary orders may be entered, a parenting investigation may occur and the case will proceed to trial if it is not resolved by way of settlement.

A common misperception is that Washington State allows for grandparent's rights or third party visitation. However, there is no right to grandparent or third party visitation as the law has been interpreted, and as such, grandparents or other third parties are given the option of seeking custody or nothing at all.

Non-parental custody cases are usually an emergent action for children in danger. Often in the case of grandparents, a difficult practical and emotional balance must be struck. Grandparents do not want to act as "parents" again, but feel that they have to step in to help their grandchildren. If this is the situation, it is important to know that there is a statute that permits you to save your grandchildren. Since there is no such thing as grandparent or third party visitation in Washington State, and the fact that there is an adequate cause/threshold requirement that must be met in order for the litigation to proceed forward, it is very important to prepare the case thoroughly before filing a petition for non-parental custody.

Family law litigation, including non-parental custody actions, can be emotionally difficult and complex. Decisions made about each step of the litigation can affect you for many years. We have years of experience helping our clients through the difficulty of non-parental custody actions and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your divorce.

Disclaimer: All materials provided on this website have been prepared by Bains Law Firm for general information purposes only and no representation is made as to their completeness or accuracy. Information on this website is not intended as legal advice, and may not be relied upon as such. Only an attorney who can review the unique facts of each case and apply them to the statutes, case law and court rules can provide legal advice. Nothing in this website shall be construed to create an attorney-client relationship.

Wednesday, April 12, 2017

Washington State Family Law & Divorce: Parenting Plan--Who Speaks for the Child?

April 12, 2017 – Bains Law Firm

In contested family law cases with children, emotions can run high and allegations plentiful if child custody is an issue. When both parents are seeking primary residential placement, or "custody" of the children, there is often no shortage of harmful and hurtful allegations. Serving the best interests of the children becomes excruciatingly difficult for the Court to resolve when the parents are focused upon tearing each other down. As such, when parenting abilities are an issue, the Court will often use a neutral third party to investigate the children's circumstances, make parenting recommendations, and sometimes even advocate on behalf of the child. Although the Court has the power to interview the children directly, such occurrences are quite rare. Every county in Washington state follows their own procedures to assist the Court in determining the children's best interests in difficult contested parenting matters.

For example, for parenting plan issues arising in King County, there are a variety of tools for a Court Commissioner or Judge to use to look into the children's actual circumstances. The Court may appoint a Guardian ad Litem, private parenting evaluator, or even use lower cost options, such as Family Court Services or CASA (Court Appointed Special Advocates). Any of these methods can provide the Court with very useful information regarding the children.

In Pierce County, the Court most often relies upon a Guardian ad Litem to be appointed from a court-approved registry. When a Court Commissioner or Judge enters an Order authorizing the use of a Guardian ad Litem, three names will be generated from the registry. Each parent will have the opportunity to strike one of the names, and the one name remaining will be appointed as the Guardian ad Litem.

The professional, whether it be a Guardian ad Litem, parenting evaluator, or other type of parenting investigator, will most often look at the Court filings, interview the parents, children and other relevant witnesses, as well as review other pertinent evidence to assist in generating a report and recommendations to serve the best interests of the children. While the Court is not bound to follow any such recommendations, oftentimes the input of such a professional is very helpful to the Court's determination of custody and parenting issues.

The statute below grants the Court its authority to interview the children and/or appoint a professional to look into the children's circumstances.

RCW 26.09.210

Parenting plans—Interview with child by court—Advice of professional personnel.

The court may interview the child in chambers to ascertain the child's wishes as to the child's residential schedule in a proceeding for dissolution of marriage or domestic partnership, legal separation, or declaration of invalidity. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made and to be made part of the record in the case.

The court may seek the advice of professional personnel whether or not they are employed on a regular basis by the court. The advice given shall be in writing and shall be made available by the court to counsel upon request. Counsel may call for cross-examination any professional personnel consulted by the court.

Family law litigation, particularly contested child custody matters, can be emotionally difficult and complex. Decisions made about each step of the litigation can affect you for many years. We have decades of experience helping our clients through the difficulty of family law cases, including contested parenting cases and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your case.

Tuesday, April 4, 2017

Washington State Family Law & Divorce: Post-Secondary Educational Support

April 4, 2017 – Bains Law Firm

In Washington State, postsecondary educational support can be ordered to require parents to pay for college for their children. In general, child support obligations end when a child turns eighteen or graduates from high school (whichever occurs later), unless postsecondary educational support is awarded.

When determining whether postsecondary support is required of the parents, the first thing to do is to review the final child support order. If the Court has already established a postsecondary educational support obligation, further Court action is probably unlikely. The parents and the child will have to abide by the postsecondary educational support provision that has been established in the final child support order.

However, when the final child support order sets forth that postsecondary educational support is "reserved" (not addressed), then a petition to modify child support will need to be filed. Reserving postsecondary educational support for a later determination is quite common, unless the child is already in high school at the time the final child support order is entered. Either parent can file a petition to modify the final child support order but it must be done before the child turns eighteen or is no longer enrolled in high school (whichever occurs later).

To qualify for postsecondary support, the adult dependent child must meet certain statutory criteria, such as being enrolled in an accredited academic school and maintain good academic standing. A parent who is obligated to pay for the postsecondary support has the right to all academic records, including grades. In addition, postsecondary support can be suspended if the student does not maintain these requirements or after the child’s twenty-third birthday (unless special circumstances exist).

When the Court is determining an award of postsecondary educational support, it considers the factors in RCW 26.19.090 (2), such as reliance of the child on the parents for the reasonable necessities of life. Other considerations include the age of the child, the child’s needs, the expectations of the parties, the child’s prospects, desires, aptitudes, abilities, or disabilities, as well as many other factors listed below.

RCW 26.19.090

Standards for postsecondary educational support awards.

(2) When considering whether to order support for postsecondary educational expenses, the court shall determine whether the child is in fact dependent and is relying upon the parents for the reasonable necessities of life. The court shall exercise its discretion when determining whether and for how long to award postsecondary educational support based upon consideration of factors that include but are not limited to the following: Age of the child; the child's needs; the expectations of the parties for their children when the parents were together; the child's prospects, desires, aptitudes, abilities or disabilities; the nature of the postsecondary education sought; and the parents' level of education, standard of living, and current and future resources. Also to be considered are the amount and type of support that the child would have been afforded if the parents had stayed together.

Family law litigation can be emotionally difficult and complex. Decisions made about each step of the litigation can affect you for many years. We have decades of experience helping our clients through the difficulty of family law cases, including child support modifications and establishment of post secondary educational support obligations, and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your case.

Monday, March 27, 2017

Washington State Family Law & Divorce: Child Support Modification and Adjustment

March 27, 2017 – Bains Law Firm

In Washington, provisions in "final" child support orders can be modified or adjusted. The same is true for "final" parenting plans. Such changes, however, cannot be made in final orders regarding most property awards or debt allocations entered in divorce or legal separation matters. The following discusses modification and adjustment of final child support orders.

There are two ways for most parents to change a final child support order, either by a Petition to Modify Child Support, or a Motion for Adjustment of Child Support.

A parent can file a Petition to Modify a final child support order at any time upon a showing of substantially changed circumstances. However, a substantial change in circumstances cannot be a voluntary change by itself, such as voluntary unemployment or voluntary underemployment.

Alternatively, a Petition to Modify a final child support order can be filed without showing of a substantially changed circumstance, if one year has passed since the final order was entered, and if one of the following requirements is present:

(1) If the order in practice works a severe economic hardship on either party of the child;

(2) If a party requests an adjustment in an order for child support which was based on guidelines which determined the amount of support according to the child’s age, and the child is no longer in the age category on which the current support amount was based;

(3) If a child is still in high school, upon a finding that there is a need to extend support beyond the eighteenth birthday to complete high school; or

(4) To add an automatic adjustment of support provision consistent with RCW 26.09.100.

A parent can also file a Motion for Adjustment of child support after 24 months have passed from the date of the entry of the support order (or the last adjustment or modification, whichever is later), without showing a substantial change in circumstances, if one of the following has occurred:

(1) Changes in the income of the parents; or

(2) Changes in the economic table or standards in chapter 26.19 RCW.

Deciding which avenue to pursue, filing a Petition to Modify Child Support or filing a Motion for Adjustment of Child Support, requires detailed factual and legal analysis and should be undertaken upon consultation with competent family law counsel well versed in child support laws.

Family law litigation can be emotionally difficult and complex. Decisions made about each step of the litigation can affect you for many years. We have decades of experience helping our clients through the difficulty of family law and child support actions and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your case.

Monday, March 20, 2017

Washington State Family Law & Divorce: Legal Separation

March 20, 2017 – Bains Law Firm

In Washington State, married couples can file for a legal separation or they can file for a divorce (dissolution of marriage). The process for filing either for a legal separation or divorce is similar, but the legal ramifications are different.

A person may choose to file for legal separation instead of divorce for many different reasons, such as religious beliefs, insurance entitlements, military benefits, immigration status, or simply because the spouses desire not to get a divorce. In these types of situations, legal separation may be a more appropriate choice for the parties.

To begin the process of legal separation, one party must file a petition to the Court, similar to a divorce petition. Once the legal separation process has started, either party can seek relief from the Court regarding issues of parenting, such as child support or parenting plans; or property, such as division of assets and allocation of debts. The Court can also address issues of restraining orders and spousal maintenance.

A major difference between legal separation and divorce is the 90-day waiting period. Legal separation does not have a 90-day waiting period; the matter can be finalized quickly. By contrast, the soonest a final divorce order can be entered is after the expiration of the 90-day waiting period.

Another difference is even after the legal separation is finalized, the parties are still married. As long as and until a final divorce order is entered, neither of the parties will be able to get remarried.

Lastly, when a legal separation order is entered instead of a divorce order, one spouse may be able to stay on the current health insurance of the other spouse, or may receive military benefits from their servicemember spouse.

Converting a legal separation to a divorce:

After the Court has entered a final legal separation order, either party can move to convert it to a final divorce order. In order to convert, a motion must be made to the Court after six months has passed since the final legal separation order has been entered.

Family law litigation can be emotionally difficult and complex. Decisions made about each step of the litigation can affect you for many years. We have years of experience helping our clients through the difficulty of family law cases including legal separation and divorce, and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your case.

Wednesday, March 15, 2017

Washington State Family Law & Divorce: Parenting Plan Modification

March 15, 2017 – Bains Law Firm

In Washington, "final" parenting plans are modifiable (as are final orders of child support). This is unlike final orders regarding most property awards or debt allocations. The following discusses modification of parenting plans.

In order to modify a parenting plan, a parent must file a petition for modification to initiate the case. Next, either party can bring the matter on for an adequate cause determination. This is often called the "threshold requirement" because if a petition fails to establish that adequate cause exists, the case will be dismissed. In an adequate cause hearing, the court looks at the facts alleged by the moving party, which if true, would be sufficient grounds for a modification action to go forward. If the court finds that the adequate cause requirement has been satisfied, the case can proceed to further hearing and/or trial.

Once adequate cause has been determined, the parties can also move for temporary orders. (Note: A party may schedule a motion for temporary orders to be heard at the same time as the adequate cause hearing). Absent a clear emergency, a court will not enter temporary orders in a parenting plan modification action until the threshold, or adequate cause, has been met.

Under the modification statute, there are a variety of grounds for a parent to modify a parenting plan, generally grouped into "minor" and "major" modification actions. Key portions of the relevant modification statute is below.

Minor Modification

RCW 26.09.260 (5)

The court may order adjustments to the residential aspects of a parenting plan upon a showing of a substantial change in circumstances of either parent or of the child … if the proposed modification is only a minor modification in the residential schedule that does not change the residence the child is scheduled to reside in the majority of the time and:

(a) Does not exceed twenty-four full days in a calendar year; or

(b) Is based on a change of residence of the parent with whom the child does not reside the majority of the time or an involuntary change in work schedule by a parent which makes the residential schedule in the parenting plan impractical to follow; or

(c) Does not result in a schedule that exceeds ninety overnights per year in total, if the court finds that, at the time the petition for modification is filed, the decree of dissolution or parenting plan does not provide reasonable time with the parent with whom the child does not reside a majority of the time, and further, the court finds that it is in the best interests of the child to increase residential time with the parent in excess of the residential time period in (a) of this subsection.

Major Modification

RCW 26.09.260 (1)

….court shall not modify a prior custody decree or a parenting plan unless it finds, upon the basis of facts that have arisen since the prior decree or plan or that were unknown to the court at the time of the prior decree or plan, that a substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child. The effect of a parent's military duties potentially impacting parenting functions shall not, by itself, be a substantial change of circumstances justifying a permanent modification of a prior decree or plan.

RCW 26.09.260 (2)

In applying these standards, the court shall retain the residential schedule established by the decree or parenting plan unless:

(a) The parents agree to the modification;

(b) The child has been integrated into the family of the petitioner with the consent of the other parent in substantial deviation from the parenting plan;

(c) The child's present environment is detrimental to the child's physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child; or

(d) The court has found the nonmoving parent in contempt of court at least twice within three years because the parent failed to comply with the residential time provisions in the court-ordered parenting plan, or the parent has been convicted of custodial interference in the first or second degree.

Due to the requirement of adequate cause, the initial petition and supporting pleadings need to be drafted very carefully to maximize the petitioning parent's opportunities for success. Additionally, the statute also provides that if the court finds a modification action has been brought in bad faith, the court shall assess attorney’s fees and court costs against the moving party. As a result, it is very important for parents to have competent family law counsel when making decisions regarding parenting plan modifications.

Family law litigation can be emotionally difficult and complex. Decisions made about each step of the litigation can affect you for many years. We have years of experience helping our clients through the difficulty of family law and modification actions and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your case.

Friday, March 3, 2017

Washington State Family Law & Divorce: Mediation - Settlement Conferences

March 3, 2017 – Bains Law Firm

Most family law cases are resolved through mediation (also known as a settlement conference). This eliminates the need to go through a trial which is very costly and emotionally draining. Both Pierce County and King County require the parties to participate in mediation, before a trial even can take place.

In mediation, the parties can resolve all issues to avoid trial. One of the biggest advantages to resolving a case though mediation is that the parties can address their unique family law situation with specificity. No two divorces, child custody, or support cases are alike and mediation allows the parties to craft detailed provisions in their agreements tailored to their particular family. This is in stark contrast to a trial, when a judge usually does not have the time or resources to devote to one particular case beyond generally entering basic court orders. By way of analogy, it has been said that mediation is akin to using a scalpel, whereas trial is more like using an axe.

A mediator is a neutral third party, who will not provide legal advice to either party and mediation sessions are confidential by court rule. The mediator’s role is to find common ground and to assist the parties in reaching an agreement.

In Pierce County, the Court requires a mediation to take place before trial, in accordance with PCLSPR 94.04

PCLSPR 94.4 (d): Settlement conferences are mandatory in dissolution cases, paternity cases, other family law cases and post dissolution petitions for modification (petition to change a parenting plan, residential schedule, or custody order) when the parenting plan or residential schedule is at issue. Settlement conferences are not mandatory for chases addressing only child support and/or division of property and assets and family law cases in which a waiver was granted pursuant to local rules.

In King County, there are similar requirements.

LFLR 16 (a). Alternative Dispute Resolution Required. Except in cases involving domestic violence, child support only modification, or where waived by the court order, the parties in every case shall participate in a settlement conference, medication or other alternative dispute resolution process conducted by a neutral third person no later than thirty (30) days before trial.

Family law litigation, including mediation, can be emotionally difficult and complex. Decisions made about each step of the litigation can affect you for many years. We have years of experience helping our clients through the difficulty of family law litigation and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your case.