Family Law: Shared Custody in Washington

When the parties separate during a divorce and there are children, the determination of a Permanent Parenting Plan can often be one of the biggest issues to resolve. Frequently the the issue of shared custody/residential time (joint custody) comes up. Historically that concept has been disfavored by the legislature and the courts. The old statute prohibited the court from doing this unless the parties agreed to this arrangement. The Washington legislature amended the statute in 2007, eliminating the requirement for the parties to agree to this. Currently, the statute, RCW 26.09.187(3)(b) sets out the criteria for establishing a shared residential schedule in a Permanent Parenting Plan as follows:

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“(b) Where the limitations of RCW 26.09.191 are not dispositive, the court may order that a child frequently alternate his or her residence between the households of the parents for brief and substantially equal intervals of time if such provision is in the best interests of the child. In determining whether such an arrangement is in the best interests of the child, the court may consider the parties geographic proximity to the extent necessary to ensure the ability to share performance of the parenting functions.”

In reality, the courts are still reluctant to award a shared custody arrangement, but the door has been opened, and with time the courts will be more receptive.