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A question was posed about what law in Washington State defines custodial & non-custodial parent.

Seattle, WA |

WAC 388-14A-1020 seems to clearly define those terms however, the responses to the original question said "none". Can you please clarify?

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Attorney answers 3

Posted

That provision of the Administrative Code should be read in conjunction with the statutes about parenting plans and residential time, particularly RCW 26.09.285:

Solely for the purposes of all other state and federal statutes which require a designation or determination of custody, the parenting plan shall designate the parent with whom the child is scheduled to reside a majority of the time as the custodian of the child. However, this designation shall not affect either parent's rights and responsibilities under the parenting plan."

Parenting plans are complex, and "custodial" vs. "non-custodial" is too much of a simplification for the purposes of defining parental roles. For instance, decision-making authority can be allocated to one or both parents in areas of education, healthcare, and religious upbringing, and determining what decision-making arrangement is in the child's best interests may involve different considerations than just in whose house the child will live. Disfavoring custody terms is a policy decision to promote the intent of the statute (set out in RCW 26.09.002).

WAC is one of those "other state laws" referred to in the statute, making it necessary to distinguish between custodial and non-custodial for the purposes of child support enforcement. The Uniform Child Custody Jurisdiction and Enforcement Act is an example of a federal law that requires the designation of a custodian for the purposes of enforcing the provisions of a parenting plan outside of Washington.

Posted

The WAC is an administrative code while the RCW 's are the codified laws. Apples and oranges. One rarely hears anyone even mention the WAC on the family law calendar. If the legislature did not include a definition of custodial and non-custoidial parent in the Parenting Act, RCW 26.09, they did it for a reason, i.e. it's much too complex to reduce to a one or two sentence definition.

The information is for general information purposes only. Nothing stated above should be taken as legal advice for any individual case or situation.

Posted

Yes, the WAC provision cited above does define the term custodial and non-custodial parent in the context of support enforcement, not parenting plans. The Washington Administrative Code (WAC) is also known as “rules” or “administrative rules” and the title of the WAC provision is “What definitions apply to the rules regarding child support enforcement.” Agency rules are designed to help the public comply with state laws, processes, and other requirements. Division of child support is an agency that enforces child support obligations. The RCW's do not provide for a definition in the definition section of the applicable statutes; not even under the Uniform Child Custody Jurisdiction and Enforcement Act, Chapter 26.27 RCW (specifically, the definitions section found under RCW 26.27.021). Chapter 26.27 RCW known as the Uniform Child Custody Jurisdiction and Enforcement Act contains a section on definitions under RCW 26.27.021. You will note that custodial parent and non-custodial parent are not defined as such. Those terms that are defined and most relevant to the authors question are the terms “custody determinations,” “custody proceedings,” and “physical custody.” “Custody determinations” under this statutory provision are defined to mean “a judgment, decree, parenting plan, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual.” Note: the word visitation is also included within the definition of child custody determination. Visitation refers to the residential time the parent is allocated who does not have the child the majority of the time (e.g. non-custodial parent). “Custody proceeding” is defined as “a proceeding in which legal custody, physical custody, a parenting plan, or visitation with respect to a child is an issue. The term includes a proceeding for dissolution, divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear. The term does not include a proceeding involving juvenile delinquency, emancipation proceedings under chapter 13.64 RCW, proceedings under chapter 13.32A RCW, or enforcement under Article 3.” "Physical custody" is defined within the statutory definition section as the “physical care and supervision of a child.” .” I had posted earlier to a different post that the definition sections of the RCW’s do not define custodial parent or non-custodial parent which is true. However, if you look to the statutory provision regarding the requirement that a parenting plan designate custody under paragraph 3.12 for the purpose of other state and federal it reads as follows: RCW 26.09.285 – Designation of custody for the purpose of other state and federal statutes. “Solely for the purposes of all other state and federal statutes which require a designation or determination of custody, a parenting plan shall designate the parent with whom the child is scheduled to reside a majority of the time as the custodian of the child. However, this designation shall not affect either parent's rights and responsibilities under the parenting plan. In the absence of such a designation, the parent with whom the child is scheduled to reside the majority of the time shall be deemed to be the custodian of the child for the purposes of such federal and state statutes.” So, the default of this statutory provision in essence defines custodial parent as the parent with whom the child is scheduled to reside the majority of the time even though it is not defined within the statute under definition sections, and the default of RCW 26.09.285 comports with the WAC, which are rules that guide Division of Child Support in enforcing child support obligations.

Karen C. Skantze practices in the State of Washington. The response is limited to her understanding of law in the jurisdiction in which she practices and not to any other jurisdiction. No response to any posted inquiry shall constitute legal advice, nor the existence of an attorney/client relationship.

Karen Christina Skantze

Karen Christina Skantze

Posted

Rest of answer: In Washington, the courts and attorneys often use such terms as primary residential parent and secondary residential parent and are beginning to use the term parenting schedule instead of custody and visitation. The newer references eliminates the distinction between custodial and non-custodial parents, and also attempts to build upon the best interests of the children by crafting schedules that meet the development needs of the child(ren). However, custodial designation is most significant as to other state and federal statutes. The "state and federal statutes" likely referred to in RCW 26.09.285 include the Food Stamp Program, 7 § USC 2015; the Criminal Code (Kidnapping), 18 USC § 1204; federal regulations issued on Veterans' Benefits, 38 CFR 3.24, 3.57, and 3.850; Social Security, 42 USC § 1396r-la; and Juvenile Justice and Delinquency Prevention--Missing Children, 42 USC § 5773 and § 5775; and IRS tax issues. The relocation statute also draws a distinction from the custodial designation of the parenting plan. Therefore, while custodial designation is not meant to disturb or imbalance the rights and obligations of the parent, the designation of custodian is important in terms of these other state and federal statutes. In 50-50 parenting plans (or parenting plans that are virtually 50-50), the question before the court may be more debatable, and it is becoming more common for parenting plans to identify that residential arrangements are shared, that each parent is considered the custodial parent, and to fulfill the requirement of a clearly stated designation it is often worded that the custodial status of each parent for purposes of other state and federal statutes shall alternate by year. I hope this clarifies.

Asker

Posted

I have 50-50 custody in Washington, but I am a non-custodial parent. I was told Washington is a visitation state; I pay child support. My ex-wife kicked my daughter out to live with me for 8 months. A year later my ex-wife was found in contempt for denial of visitation. Again, I pay child support and never miss a beat. When it comes to the courts and DCS, I feel like a criminal because I am a non-custodial parent. I am the one who owes someone else, therefore I am the bad guy. The system does not give dads with 50%+ custody the respect that is due; especially those who pay support and percentages above and beyond support for the children.

Karen Christina Skantze

Karen Christina Skantze

Posted

From your post, I sense a great deal of frustration, as if you come up against something from the courts or DCS that is making you feel like the bad guy. Yet, you state that you are current in your child support and the court found the mother in contempt for denial of visitation? Is a present action with respect to parenting plan or child support that is reinforcing your feelings of unfairness that you have questions about?

Asker

Posted

There is no current action pending, but it is the day to day crap I must deal with. There is always some court action lingering or threatened by her. I can prove many violations where she may be found in contempt, but I now save them for our day in court. I study up on the laws and read then re-read our orders, so that I am compliant. It is exhausting and expensive. Most of it is just petty differences in opinions but she continues to deny mediation. I keep asking myself if it is even worth it anymore because the system just feeds itself and I only have a few years to go. But, I have post secondary education coming up to keep this all going. I don't even know if I will have a retirement when it is all over with. Isn't the point of support to keep the government/people from raising other peoples' children? Well, when it's all said and done I might be the one needing that support. Karen, your sense is correct; I am extremely frustrated.

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