Parenting Plan difficulties with teenage children

When a couple who have children obtain a divorce, the court will enter a Parenting Plan that sets out the residential schedule for the children as well as other responsibilities such as the decision-making authority for the parents on behalf of the children. A typical Parenting Plan permits the “non-primary” residential parent to have alternating weekend visitation with the children, often with some mid-week visits every week (such as after school through dinner on Wednesday).

Where parents divorce when the children are young, this type of a parenting plan can be workable and not present any challenges. However, as the children grow older, the children start developing stronger relationships with their peers, become involved in athletic and other extracurricular activities, and generally want to “hang out” with friends more than stay with their parents – whether those parents had been living together as a married couple or divorced years ago.

Conflicts may develop when a pre-teen or teenaged child refuses to speak with the non-residential parent on the phone, or if the child simply declines to spend time with that parent. Often, the non-residential parent will become upset and often accuse the other parent with being involved in the child’s refusal.

A parent can seek a contempt order against the other to compel another parent to comply with a parenting plan. The moving party must establish non-moving party’s bad faith by a preponderance of the evidence. If the court finds that a parent has, in bad faith, failed to comply with the parenting plan, the court shall find the parent in contempt of court.

A parent who refuses to perform the duties imposed by a parenting plan is per se acting in bad faith. If this occurs, the non-moving party must, to avoid a contempt order, establish a reasonable excuse that he or she does not have the present ability to comply with the court ordered residential schedule by a preponderance of the evidence.

Existing caselaw recognizes where compliance with a parenting plan may be difficult or impractical when a recalcitrant teenager refuses to spend time with one parent. If the parent with whom the child is living chooses not to force the issue and notifies the other parent of that decision, punishment by contempt would appear to be an inappropriate remedy. Counseling may offer a better solution under such circumstances.

Domestic violence and family law

Domestic violence is legally defined in Washington state at (a) physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between a family or household members; (b) sexual assault of one family or household member by another; or (c) stalking as defined by statute (RCW 9A.46.110) of one family or household member by another family or household member. RCW 26.50.010(1). Domestic violence is also manifested as psychological harm.

An alleged victim of domestic violence can obtain a temporary Order of Protection, which will require a civil hearing after a certain number of days. Notice must be served on the defendant. Conditions are not standard, but usually include “no contact” by touching, voice, writing, e-mail or phone with the named victim – even if the victim invites it, and to stay away from the victim’s home, employment, school or daycare / school of the victim’s children. Also available is the sexual assault protection order under RCW 7.90.005.

The operable question often turns on what the court interprets as “the infliction of fear of imminent physical harm, bodily injury or assault.” This is a very subjective standard, and can be used in some instances unscrupulously by an accuser to obtain an advantage prior to a divorce proceeding to gain control of children and property.

In contrast, the definition of “domestic violence” in psychological terms, sometimes referred to as “intimate partner violence,” is differentiated with respect to partner dynamics, context, and consequences. The four patterns of domestic violence in psychological terms are identified as:

1) Coercive Controlling Violence (relationship-wide pattern of power, coercion and control);

(2) Violent Resistance (immediate reaction to an assault that is intended primarily to protect oneself or others from injury);

(3) Situational Couple Violence (most common type of physical aggression resulting from situations or arguments between partners that escalate on occasion into physical violence); and

(4) Separation-Instigated Violence (violence which is instigated by the abandoned partner after the other partner separates).

Since the law does not recognize these psychological distinctions, someone who engages in a one-time altercation with a partner may be treated the same as a perpetrator of a long standing coercive controlling relationship. This can have wide ramifications on residential time with children, employment, use of property, among many other factors.

It is important to seek immediate assistance from an attorney if you find yourself involved in a domestic violence situation.

“De Facto” Parentage

An adult who is not a biological or adoptive parent can be found by a court to be a “de facto parent” of a child. Under this court developed doctrine, the following criteria have been adopted by the Washington Supreme Court:

• The natural or legal parent consented to and fostered the parent-like relationship,
• The petitioner and child lived together in the same household,
• The petitioner assumed obligations of parenthood without expectation of financial compensation, and
• The petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature.

In addition, recognition of a de facto parent is “limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.” See In re Parentage of LB, 155 Wn.2d 679, 708, 122 P.3d 161 (2005).  Importantly, a de facto parent is not entitled to any parental privileges as a matter of right, but only as it is determined to be in the best interests of the child.

Establishing a parent-child relationship is very important if the partner who is not the child’s legal parent wants to have a relationship protected by and enforceable through a court order such as a parenting plan. If the partner does not adopt the child, and does not meet the requirements of de facto parentage or presumption of parentage, it may be very difficult for the partner to have an ongoing relationship with the child after the partnership is dissolved, if the legal parent does not want such a relationship between his or her child and the other partner. It is very important to get legal advice about your rights and responsibilities with regard to any children as soon as possible.

Changing a child’s surname

In the context of changing an adult’s surname, it is common for a divorcing spouse to make such a request within the Petition for Dissolution and to be granted the authority to change one’s surname in the Decree of Dissolution. Outside of the context of a dissolution proceeding, a party must complete a Petition for Name Change and file the same in any district court division within the county of a party’s residence. RCW 4.24.130. Photo ID may be required. If a sealed name change is required, the petition must be filed with the Superior Court.

Name change fees will vary depending upon the number of persons named in the Order. Individual petitions must be submitted for each person and minor child, but only one order is necessary.

Within a parentage action (where the parents of the child are not married), it is often common for the parents of a child to dispute that child’s surname. The Washington Supreme Court has used RCW 26.26.130(3) as the legal basis to change the name of the child when it is found to be in the best interests of the child. Once a surname has been selected for a child, be it the maternal, paternal or some combination of the two, a change in the child’s surname can be granted only when the change promotes the child’s best interests.

In determining these best interests, the court may consider, but is not limited to, the following factors: 1) the child’s preference; 2) the effect of the change of the child’s surname on the preservation and the development of the child’s relationship with each parent; 3) the length of time the child has borne a given name; 4) the degree of community respect associated with the present and proposed surname; 5) and the difficulties, harassment or embarrassment that the child may experience from hearing the present or the proposed surname. In weighing these factors to reach a decision, the trial court must set out its reasons for granting or denying the application to change the minor’s surname. Daves v. Nastos, 105 Wn.2d 24, 31, 711 P.2d 314 (1985).

Seek legal advice if wish to change your child’s surname or if the other parent wants to do so without your consent.

The danger of non-attorney representation

In an earlier blog post, I suggested choosing the right family law lawyer is a very important decision when seeking a divorce. As reported in the Seattle Times this morning, this is a very real issue which can be devastating.

Several years ago the Seattle Times reports that Arnold “Arnie” Newman, also known as Michael Leonard, among other aliases — illegally gave clients legal advice and pocketed thousands of dollars in retainer fees without doing any of the work he’d promised. He used the website, Newman, 55, pleaded not guilty to two counts of unlawful practice of law and two counts of first-degree theft on Thursday, according to the King County Prosecuting Attorney’s Office. He was jailed at the Norm Maleng Regional Justice Center.

Newman took substantial money from non-suspecting clients in need of legal representation in complex custody battles and often did little to nothing for those clients, according to reports.

Over my years of practice, I have become familiar with several different groups similar to this, including well meaning paralegals that do not have the experience or training to effectively counsel or represent clients. Often, these individuals make matters significantly worse. For example, they often recommend that parties who live in western Washington to file their pleadings in Lincoln County, Washington, outside of Spokane, because filing in Lincoln County doesn’t require a personal appearance. What they don’t explain is that if any modification or change needs to occur in the future, it can be extremely difficult or expensive to do so because Lincoln County will seek to retain jurisdiction over the case.

We certainly know that attorneys can be expensive. This is probably the main motivation for people seeking the help of non-attorneys. But there are reasons why attorneys charge fees as they do. They have the training, experience and knowledge of the legal system to assist you in your challenges. Just as you wouldn’t go to a medical clinic in a strip mall to have brain surgery, you shouldn’t seek non-professional legal advice when your children and property are on the line.

Whether you seek my assistance or that of another attorney, please be aware of these dangers and make sure your situation does not become worse due to a desire to save money.

Choosing the right family law lawyer

Choosing the right family law lawyer is a very important decision when seeking a divorce. This person will need to become familiar with intimate details of your life, will fight for your rights and provide you with advice. A personal interview with an attorney, preferably in person, is a good start.

You should consider a number of factors when making your decision. Experience and knowledge of family law and the court rules are important criteria for selecting an attorney. An experienced family law attorney will be familiar with the law, its trends, and the legal system.

Here are some questions you should ask of a potential family law attorney:

o How many years have you practiced law?
o How much of your practice is in family law? (Not every lawyer practices an exclusive area of law).
o Do you frequently handle cases such as mine that may involve a complicating factor (domestic violence, mental health challenges, high asset)?
o Are you a member in good standing with the state bar association?
o Have you served as a faculty member of any continuing education programs in areas of family law?
o Do you have experience in other areas of law, such as real estate, probate, personal injury?
o Have you edited or published any articles in the area of family law?
o What experience have you had in mediating family law cases?

An attorney will have you consider and sign a legal representation agreement, and ask for a cash advance deposit (sometimes known as a retainer). Under most circumstances, you will be charged a fee on an hourly basis. More experienced attorneys may charge more per hour, but the long term financial and other benefits may outweigh the cost.