LEGAL GUIDE
Written by attorney Lina Beckford | Jul 17, 2010

The Effect of a Parent's Military Duties on Parenting Plan Modifications in Washington State

If you are an active duty member of the United States Armed Forces the laws governing modification of parenting plans in the State of Washington have changed. This change in the law affects the rights of custodial and non-custodial parents who are active duty service members. If you are not an active duty service person, but the mother or father of your child is, the change in the law affects you too.

Changes Effecting Non-Custodial Parents:

A deployment or tour lasting a year or longer is not unheard of. It is not uncommon for a service member parent to receive orders requiring them to deploy or assigning them to a tour on the other side of the world. When this happens, service member parents often have to endure long separations from their children. RCW 26.09.260(8) (a) states that: a parenting plan can be modified if the non-custodial parent has failed to exercise their residential time with the child for one year or longer. Prior to the passage of HB 1170, a custodial or non-custodial parent who was unable to exercise residential time due to their military duties could find their parenting time reduced or in extreme cases suspended by the court.

The amendment to RCW 26.09.260 protects active duty service members who are facing a reduction or suspension of their residential time under section 26.09.260(8) (a). RCW 26.09.260(8) (b) now states that the court may not count any time periods during which the parent did not exercise residential time due to the effect of the parent's military duties potentially impacting the parenting function. This means that if the only basis for reducing or suspending your time with your child is the fact that you are temporarily assigned to a new duty station, have orders to deploy or have been selected for an unaccompanied tour; your service related absence cannot be used against you.

Changes Effecting Primary Custodial Parents:

Before the adoption of the new law, a service member who was the custodial parent of a child often found themselves in a tough spot when duty called. Service members sometimes faced significant difficulties regaining custody of their children; they had to endure the uncertainty of not knowing if they would get their children back or worst still, they had to initiate costly litigation to do so. RCW 26.09.20 (11) (a) goes a long way towards resolving these issues by creating a predictable procedure for regaining custody under these circumstances.

If you are any active duty member of the armed forces and you receive orders that require you to deploy, activate, temporarily change duty stations or otherwise leave your children behind for an extended period of time; the court is authorized to enter a temporary custody order. This order is intended to temporarily change primary placement of the child from the service member parent to non-custodial parent or other fit custodian. Upon the soldier's return, they may file a motion asking the court restore the previous residential schedule. The new provision of the statute states that any temporary custody order shall end no later than ten (10) days after the returning parent provides notice to the temporary custodian. The court is required to grant service member's motion for an order restoring the previous residential schedule.

RCW 26.09.260(11) (b) eliminates the possibility of a service member's temporary duty, deployment, activation, mobilization or the temporary disruption to the child's life caused by these aspects of the parent's military duty, being used as the sole factor in determining whether there has been a change of circumstances if a motion is filed to permanently transfer residential placement from the parent who is a military service member.

Delegation of Residential Time: New Rights for the Custodial and Non-Custodial Service Member:

Once a service member parent receives notice of their deployment, activation or mobilization etc., RCW 26.09.260(12) now gives the service member parent the right to file a motion asking that in their absence, the court allow them to transfer their residential time or visitation rights to another person who has a "close and substantial" relationship with the child for the duration of their absence. If the court finds that the service members request is in the best interest of the child, the court is authorized to delegate the military members residential time to the child's family member including a step-parent.

Before you rush to court and ask the court to delegate your time to someone other than a parent, the statute requires that you, unless excused by the court for good cause, go through the dispute resolution process outline in your parenting plan to try to resolve any issues regarding the delegation of residential time or visitation.

If you are an active duty service member and have questions about your rights, contact an experienced family law attorney for advice.

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