Skip to main content

What law in Washington State defines custodial/non-custodial parent and why is the NCP obligated to make the transfer payment?

Seattle, WA |

I am trying to find which RCW in Washington State defines custodial and non-custodial parent roles, why the NCP is obligated to make the transfer payment for child support (especially in joint-custody arrangements) and why court orders in Washington State do not allow for joint-custody language?

Attorney Answers 3

Posted

Non-custodial parent is a term that is not defined. You will find it nowhere in RCW 26.09.004 (definitions) or RCW 26.19.011 (definitions). The non-custodial parent is usually the person with fewer overnights than the other parent, and by extension that parent is considered the obligor parent for child support purposes with the obligation to remit the transfer payment. In joint custody arrangements, a lot depends on how the parenting plan under the provision titled custodial designation is worded. The custodial designation by itself does not impact parenting rights or obligations, but is there for the sole purpose of state and federal statutes that require that a designation be made clear. Federal and state agencies do not want to be left guessing. The most notable of these is the IRS for tax purposes. In many 50-50 parenting plans language is drafted that states that the child(ren) resides with the parents equally, and that for purposes of federal and state statutes the mother shall be considered the custodian in even-numbered years, and the father shall be considered the custodian in odd-numbered years. I suppose by extension one could reasonable argue that a court could apply this alternating feature to the child support order, but I have never seen this done and doing so could tend to create more of a nightmare for Division of Child Support or for the courts or even for the parties than it is worth, especially when an obligor parent might receive a credit thereby reducing the standard calculation of child support they would otherwise have to pay in light of the significant amount of time the child(ren) reside with that parent. Sometimes there is still an amount to be paid by the obligor parent (usually on account of income disparities), sometimes it is a wash where no transfer payment is exchanged, and sometimes the credit when applied would indicate a dollar amount actually owing to the obligor parent unless that parent waives it. Until the legislature states otherwise, the approach taken within the support orders will continue.

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.

Mark as helpful

1 found this helpful

2 comments

Asker

Posted

WAC 388-14A-1020 appears to define custodial & non-custodial parent.

Karen Christina Skantze

Karen Christina Skantze

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.” 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 as stated above and as also indicated by my colleagues do not provide for a definition. However, the courts follow the principle that the WAC (Washington Administrative Code) sets forth: the parent with whom the child resides a majority of the time is the custodial parent, and it is customary for the paragraph on custodial designation within the parenting plan to name the parent with the majority of time as the custodial parent for purposes of other federal and state 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 and that each parent is considered the custodial parent in alternating years. Of course, the Division of Child Support needs the pronouncement to be clear in any parenting plan portion of the proceeding in order for the Division of Child Support to know which parent is the parent with the child support obligation to be enforced.

Posted

"Custody" doesn't mean squat under Washington law. Your obligations towards your children are spelled out in a parenting plan. Theoretically, either parent could pay the other parent child support, but the payor is nearly always the parent with less than 50% time. If the parenting plan grants the paying parent more than approximately one-third time, that is often a basis for deviaing the support from the presumed amount. You're not going to re-write legislation. Get a lawyer and deal with the stuff you can within the parameters of the law. You don't have the energy, time, money it takes to change the law.

Mark as helpful

1 found this helpful

1 lawyer agrees

4 comments

Asker

Posted

If custody doesn't mean squat in Washington State, then why are most NCP's obligated to make a transfer payment to the custodial parent? Where does state in law that NCPs have pay? Even in cases where there is 50/50 visitation is highly unlikely any judge or commissioner would grant a zero dollar transfer payment. And I do have the energy and time to change law. Unfortunately I do not have the money. You know any weathtly people who want to sponsor an intiative before the people? The Washingston State legistlature failed this year in not even letting Washington State 2011 Child Support Schedule Workgroup (aka HB 2279) get out of committee.

Glenn E. Tanner

Glenn E. Tanner

Posted

The word "custody" doesn't mean anything clearly in Washington even though judges and lay people use it.  "Custody" means one thing to you, another to a neighbor and next to nothing under the law.  You're best off not to use the term because there is no clear definition.    There is nothing that says the primary residential parent gets the support and the other parent pays.  How else would child support work, with some very minor exceptions (Bill Gates divorces Melinda and even if Bill was the primary caretaker, you can bet he'd pay child support)   Child support legistlation dies in committee everyyear.  50/50 plans result in zero transfers all the  time, particularly when both households have adequate funds.  Unfortunately, that is also often NOT the case.         Confidential Communication If you have received this transmission in error, please notify the sender at once by reply or by telephone at (509) 244-6353     Glenn E. Tanner - http://www.thecollaborativedivorce.com/ Attorney at Law North 901 Adams Spokane, WA 99201 Telephone: (509) 244-6353 Fax: (509) 455-6132 Seattle telephone: (206) 937-3699 The information in this transmission may be confidential and may also be subject to attorney-client privilege.  This information is intended only for the use of the individual or entity to whom it is addressed..  If you are not the intended recipient, or the employee or agent responsible for delivery to the intended recipient, you are notified that any use, dissemination, distribution, or copying of this communication is strictly prohibited by federal and state law.  If you have received this transmission in error please notify the sender at once by reply or by telephone at (509) 244-6353.   IRS "Circular 230" Disclaimer Note:  Under circumstances, a taxpayer may avoid certain penalties under the Internal Revenue Code by relying on a formal opinion of counsel that meets specific IRS regulations.  Any tax advice in this communication does not constitute a formal opinion that meets the requirements of those regulations.  Accordingly, the IRS regulations require us to advise you that any tax advice in this communication is not intended or written to be used, and cannot be used by you, to avoid penalties that the IRS might attempt to impose on you. >

Asker

Posted

I have yet to see a 50/50 plan result in a zero dollar transfer. That is my own experience here in King County. In my own case, the custodial parents makes more than I do and still have to pay child support because the custodial parent has significant debt and a zero dollar transfer payment would leave insufficient funds in her household (at least that is what the court ruled). I was granted a small deviation, but still doesn't seem fair.

Asker

Posted

WAC 388-14A-1020 appears to define custodial & non-custodial parent.

Posted

The answer is simple -- because the legislature chose not to define those terms and adopt a joint custody language.

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

Mark as helpful

1 lawyer agrees

1 comment

Asker

Posted

WAC 388-14A-1020 appears to define custodial & non-custodial parent.

Family law topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics