Positioned to Win Custody

Positioned to Win Custody in WA: A WA Lawyer’s Perspective on What to Do Before Filing for Divorce

–by Sam Darling, Divorce Attorney at Genesis Law Firm

Clients contemplating a future, un-filed divorce lawsuit often ask what they should do to increase their chances of winning child custody. This article provides a list of tips from a practicing divorce attorney in Washington State, and it couches those tips within relevant Washington law.

How to Win Custody in Washington StateFirst, do everything you can to document any “191 factors” your spouse exhibits. The term “191 factor” comes from a section number of the Revised Code of Washington (RCW) ending in “191.” The full citation of the code section is RCW 26.09.191. Generally speaking, 191 factors are any abuse and addictions which bear on the emotional and physical wellbeing of the child in issue. Examples of 191 factors include child abuse, spousal abuse, drug or alcohol addiction, and a parent’s substantial neglect of a child. RCW 26.09.187 makes these 191 factors the foremost consideration when allocating residential time with the child. You can document your spouse’s 191 factors by keeping a daily journal, taking photographs, gathering treatment records, and getting informal statements from witnesses.

Second, strengthen and document your emotional bond with your child. RCW 26.09.187(3)(a)(i) makes the child-parent bond the most important consideration when 191 factors are not present. Spend significant time doing what you child enjoys. Often documenting this child-parent bond can be difficult, but you should nonetheless try. Keep a journal, take pictures, and otherwise do what you can to show the child has become more closely bonded to you than to your spouse.

Third, take every opportunity to perform and document your performance of parenting functions relating to the everyday needs of your child. Pursuant to RCW 26.09.187(3), performance of parenting functions tends to be the dispositive consideration in run-of-the-mill divorces where 191 factors are not present and the child is closely bonded to both parents. Parenting functions are defined by RCW 26.09.004 as including feeding, clothing, physical care, supervision, education, health care, and providing financial support. Pickup and drop-off your child at daycare, and get daycare records to prove it. Take your child to his or her doctor’s appointments and get to know the physician so she can testify on your behalf. Take your child to his or her school activities, and get to know the teacher. Take your child to his or her extracurricular activities. Enroll your child in activities, and get a copy of the sign-up sheet bearing your signature.

Fourth, strive to gain as much time with your child as possible during any period of separation from your spouse. Especially important is the period of informal separation just prior to the divorce proceedings. If the period of separation is more than a few weeks, courts often fashion custody orders (parenting plans) that maintain the parties’ informal custody arrangements.

Fifth, document your ability to care for your special needs child. Caring for the special needs child is proof of your performance of an essential parenting function under RCW 26.09.187(3), discussed above. Caring for a special needs child can also drastically increase the likelihood of gaining custody of any other children from your marriage. This is because courts try to keep siblings together pursuant to language from the influential case In re Marriage of Little, 26 Wn.App. 814 (1980).

Sixth, if you move out prior to initiating the divorce, chose someplace with low crime, top-notch schools, and good medical facilities. RCW 26.09.002 makes clear your child’s best interests are the paramount concern of the court. If you live someplace safer and otherwise better than your soon-to-be-ex, it would be in your child’s best interest to live with you, right?

Seventh, clean yourself up. Quit smoking. Get your drinking under control. Go to rehab if necessary.

Last, do all of the above for at least 12 months prior to initiating the divorce if practical. RCW 26.09.194 places special emphasis on the parenting that occurred during the 12 months prior to the divorce proceeding. Good luck!

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