Washington Child Custody Agreement
Washington lifts the children's terms out of the rule that binds a court to a separation contract, then gives an agreement two ways back in.
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Introduction
Washington does not award custody between parents. Every dissolution or legal separation involving a minor child ends in a court-entered permanent parenting plan that allocates decision-making authority and sets a residential schedule, and RCW 26.09.285 keeps the word custody alive only as a label applied solely so that other state and federal statutes have a designation to read. What that plan does with a parents' agreement is the unusual part. RCW 26.09.070(3) makes a separation contract binding upon the court unless it finds the contract was unfair at the time of its execution, and then excepts those terms providing for a parenting plan for their children, so the parenting bargain is the one piece of the deal the court is not bound by. Washington gives something back that most carve-out states do not: RCW 26.09.187(3)(a)(ii) makes the parties' agreements, if knowing and voluntary, one of the enumerated residential factors, and RCW 26.09.187(2)(a) gives an agreed allocation of decision-making its own two-part approval test. The practical catch is procedural. RCW 26.09.006 bars a party from filing any pleading in one of these cases except on forms approved by the Administrator for the Courts, so a generic downloaded agreement is a drafting aid rather than something the clerk will accept.
Key Things to Know
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Your parenting terms are the part of the deal the court is not bound by. RCW 26.09.070(3) makes a separation contract binding upon the court unless it finds the contract was unfair at the time of its execution, except for those terms providing for a parenting plan for the children. The property and maintenance bargain gets that deference; the parenting bargain does not, and the court reviews it independently.
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Agreeing is still worth something in Washington, in two specific places. RCW 26.09.187(3)(a)(ii) lists the parties' agreements, if knowing and voluntary, as one of the seven factors the court weighs in setting the residential schedule, so your agreement is an input to the analysis rather than just a proposal. And before approving an agreed allocation of decision-making authority, RCW 26.09.187(2)(a) requires the court to find that the agreement is consistent with any limitations on a parent's decision-making authority mandated by RCW 26.09.191 and 26.09.192, and that it is knowing and voluntary. Both compensations carry the same qualifier, so how the agreement was reached matters.
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A plan is required, but not in literally every case. RCW 26.09.050(1) says that in entering a decree of dissolution, legal separation, or invalidity the court shall make provision for a parenting plan for any minor child, and RCW 26.09.181(1)(a) requires each party in a chapter 26.09 proceeding other than a modification to file and serve a proposed permanent parenting plan. For never-married parents establishing parentage the rule is different: RCW 26.26B.020(7) provides that a parenting plan is not required unless a party requests one.
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The contents are prescribed, and some of them have to be recited word for word. A permanent parenting plan must contain a dispute resolution process other than court action unless that is precluded or limited by RCW 26.09.191 or 26.09.192, an allocation of decision-making authority over education, health care, and religious upbringing, and a residential schedule designating in which parent's home the child resides on given days of the year, including holidays, birthdays of family members, vacations, and other special occasions. RCW 26.09.184(8) then requires several subsections of the statute to be set out verbatim in the plan, and RCW 26.09.184(4)(f) requires the dispute resolution provisions to be set out in the decree as well.
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The form matters as much as the words. RCW 26.09.006 provides that a party shall not file any pleading with the clerk of the court in an action commenced under this chapter unless it is on forms approved by the Administrator for the Courts, so a Washington parenting plan is filed on the state's own form. Parties may make an agreed permanent parenting plan under RCW 26.09.181(4), and once the court adopts it RCW 26.09.070(5) requires that in all cases the terms of the plan be set out in the decree and the parties be ordered to comply with them. A final order cannot enter sooner than 90 days after filing and service under RCW 26.09.181(7).
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The vocabulary is residential schedule, residential time, and decision-making authority. Chapter 26.09 RCW has no operative concept of custody or visitation between parents. RCW 26.09.285 says that solely for the purposes of all other state and federal statutes requiring a designation or determination of custody, a parenting plan shall designate a parent as the custodian of the child, and it adds that the designation shall not affect either parent's rights and responsibilities under the parenting plan. Writing the document in custody and visitation language does not just read oddly here, it names things Washington does not allocate.
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Domestic violence produces a mandatory limitation, not a factor to weigh. RCW 26.09.191(4)(a) provides that a parent's residential time shall be limited on a finding of willful abandonment, physical abuse or a pattern of emotional abuse of a child, a history of acts of domestic violence, an assault causing grievous bodily harm or fear of such harm, any sexual assault, or sexual abuse of a child, and RCW 26.09.191(4)(b) extends the same limitation to a parent who knowingly resides with someone who engaged in that conduct. RCW 26.09.191(5) requires sole decision making and no dispute resolution other than court action on the same grounds, and the escape route in RCW 26.09.191(6)(a) requires express written findings by clear and convincing evidence. If any of this is in your situation, talk to a lawyer rather than work from a form.
Key decisions before you file
Before you file a Child Custody Agreement in Washington, a few decisions shape the document: which option to choose and what each one means. The Child Custody Agreement guide walks through them.
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Washington Requirements for Child Custody Agreement
A separation contract is binding upon the court unless it finds the contract was unfair at the time of its execution, except for those terms providing for a parenting plan for the children. The document should not present the parenting terms as binding on the court.
Before approving an agreed allocation of decision-making authority the court must find that it is consistent with any limitations mandated by RCW 26.09.191 and RCW 26.09.192 and that it is knowing and voluntary. The plan should state both points expressly.
In all cases the terms of the parenting plan are set out in the decree and the parties are ordered to comply with them, and noncompliance may result in a contempt finding. The agreement is not a court order and cannot be enforced as one until that entry occurs.
The plan must contain a dispute resolution process other than court action unless precluded or limited by RCW 26.09.191 or RCW 26.09.192, an allocation of decision-making authority over education, health care, and religious upbringing, and a residential schedule covering given days of the year including holidays, birthdays of family members, vacations, and special occasions.
Several subsections of RCW 26.09.184 must be set out word for word in the plan, covering the preference for carrying out the plan, use of the designated dispute resolution process, written records of agreements and awards, day-to-day decision making, good faith dispute resolution, and the effect of noncompliance. The dispute resolution provisions must also appear in the decree.
A party may not file any pleading with the clerk of the court in a chapter 26.09 action unless it is on forms approved by the Administrator for the Courts. Agreed terms have to be transferred onto the approved parenting plan form before filing.
Each party in a chapter 26.09 proceeding other than a modification must file and serve a proposed permanent parenting plan, parties may instead make an agreed permanent parenting plan, and no final order may be entered sooner than 90 days after filing and service.
Solely for the purposes of other state and federal statutes that require a designation or determination of custody, the plan designates a parent as the custodian of the child, and the designation does not affect either parent's rights and responsibilities under the plan.
Notice of an intended relocation of the child must be given to every person entitled to residential time or visitation no less than 60 days before the move, with a limited late notice allowance, an intra-district exception, and a 30 day window for an objection during which the child's principal residence may not change without a court order.
A parent's residential time shall be limited on a finding of the enumerated conduct, including a history of acts of domestic violence, and the same limitation reaches a parent who knowingly resides with such a person. The court must order sole decision making and no dispute resolution other than court action, and a plan may not use a non-court dispute resolution process where a limiting factor applies.
Frequently Asked Questions
Partly. RCW 26.09.070(3) makes a separation contract binding upon the court unless it finds the contract was unfair at the time of its execution, but it excepts those terms providing for a parenting plan for the children, so the court is not bound by what the parents agreed about the child. What Washington adds back is real, though. The parties' agreements, if knowing and voluntary, are one of the enumerated residential factors under RCW 26.09.187(3)(a)(ii), and an agreed allocation of decision-making authority has its own approval test under RCW 26.09.187(2)(a). So the agreement is an input the court weighs, not a decision it has to accept.
Yes. Parties may make an agreed permanent parenting plan under RCW 26.09.181(4), but it is not a court order and cannot be enforced as one until the court adopts it. RCW 26.09.070(5) provides that in all cases the terms of the parenting plan shall be set out in the decree and the parties shall be ordered to comply with its terms, and once that happens noncompliance may result in a contempt finding under RCW 26.09.160. A final order cannot be entered sooner than 90 days after the petition is filed and served, under RCW 26.09.181(7).
For the decision-making half, the statute names the findings. RCW 26.09.187(2)(a) provides that the court must, before approving an agreed allocation of decision-making authority, find that the agreement is consistent with any limitations on a parent's decision-making authority mandated by RCW 26.09.191 and RCW 26.09.192, and that it is knowing and voluntary. For the residential schedule there is no separate approval test; the court works through the factors in RCW 26.09.187(3)(a), with the parties' agreements sitting inside that list rather than displacing it.
You can draft the substance yourselves, but the filing has to be on the state's form. RCW 26.09.006 provides that a party shall not file any pleading with the clerk of the court in an action commenced under this chapter unless it is on forms approved by the Administrator for the Courts. A general purpose custody agreement is therefore useful for working out and recording what you have agreed, and for making sure nothing required is missing, but the terms have to be carried across onto the approved parenting plan form before they go to the clerk.
RCW 26.09.184 fixes three required components: provisions for resolution of future disputes between the parents, an allocation of decision-making authority, and residential provisions for the child. The dispute resolution process must be something other than court action unless that is precluded or limited by RCW 26.09.191 or RCW 26.09.192; the decision-making allocation covers education, health care, and religious upbringing; and the residential schedule must designate in which parent's home the child resides on given days of the year, including holidays, birthdays of family members, vacations, and other special occasions. RCW 26.09.184(8) additionally requires several statutory subsections to be set out verbatim in the plan, and RCW 26.09.184(4)(f) requires the dispute resolution provisions, including the attorney fee sanction for frustrating the process and the right of review to superior court, to appear in the decree.
In every dissolution, legal separation, or declaration of invalidity involving a minor child, yes. RCW 26.09.050(1) requires the court entering such a decree to make provision for a parenting plan, and RCW 26.09.181(1)(a) requires each party in a chapter 26.09 proceeding other than a modification to file and serve a proposed permanent parenting plan, with a deadline of 30 days after notice for trial or 180 days after commencement, whichever is earlier. Parentage cases are different. RCW 26.26B.020(7) provides that the court makes residential provisions on the same basis as chapter 26.09, except that a parenting plan is not required unless a party requests one.
Because that is what the statute allocates. A Washington parenting plan divides decision-making authority and sets a residential schedule of residential time, and chapter 26.09 RCW has no operative concept of custody or visitation between parents. RCW 26.09.285 provides that solely for the purposes of all other state and federal statutes that require a designation or determination of custody, a parenting plan shall designate a parent as the custodian of the child, and it says expressly that the designation shall not affect either parent's rights and responsibilities under the plan. The word survives as a label with no substantive effect.
Safety limits come first. RCW 26.09.187(3)(a) requires the residential schedule to be consistent with RCW 26.09.191 and RCW 26.09.192, and the court reaches the general factors only where those limitations are not dispositive. The factors are the relative strength, nature, and stability of the child's relationship with each parent; the parties' agreements, if knowing and voluntary; each parent's past and potential future performance of parenting functions; the child's emotional needs and developmental level; the child's relationship with siblings and other significant adults and involvement with school, activities, and surroundings; the wishes of the parents and of a sufficiently mature child; and each parent's employment schedule, with accommodations made for those schedules. The statute weights them, providing that the first factor shall be given the greatest weight. Allocating decision-making authority runs on a separate set of criteria in RCW 26.09.187(2)(c).
Sixty days. Under RCW 26.09.430 a parent with whom the child resides a majority of the time, or with substantially equal residential time, must notify every person entitled to residential time or visitation of any intended relocation of the child, and RCW 26.09.440(1)(b)(i) sets the notice at no less than 60 days before the intended relocation. There is no mileage or state line trigger. If 60 days was not reasonably possible and the delay would be unreasonable, RCW 26.09.440(1)(b)(ii) allows notice no more than 5 days after the parent learns the required information. The notice must be personally served or mailed requiring a return receipt, must give the reasons and a proposed revised residential schedule, and must carry a required warning. An objection has to be filed and served within 30 days under RCW 26.09.480(1), and the child's principal residence may not change during that window without a court order. For a move within the child's current school district, RCW 26.09.450 allows actual notice by any reasonable means and the other parent may not object, keeping only the right to seek modification. Washington then runs the presumption in an unusual direction: RCW 26.09.520 creates a rebuttable presumption that the intended relocation will be permitted, which an objecting person may rebut by demonstrating that the detrimental effect of the relocation outweighs the benefit of the change to the child and the relocating person, and it applies eleven factors that the statute expressly states are not weighted.
Washington limits residential time rather than treating the history as one consideration among many. RCW 26.09.191(4)(a) provides that a parent's residential time shall be limited if it is found that the parent has engaged in willful abandonment, physical abuse or a pattern of emotional abuse of a child, a history of acts of domestic violence, an assault causing grievous bodily harm or the fear of such harm, any sexual assault, or sexual abuse of a child, and RCW 26.09.191(4)(b) applies the same limitation to a parent who knowingly resides with a person who engaged in that conduct. RCW 26.09.191(5) requires the court to order sole decision making and no dispute resolution other than court action on the same grounds, and RCW 26.09.191(6)(b) adds a rebuttable presumption of sole decision making on a finding of domestic violence and bars the court from requiring face to face mediation, arbitration, or interventions that require the parties to share the same physical or virtual space. Getting out from under a mandatory limitation requires express written findings by clear and convincing evidence under RCW 26.09.191(6)(a), and sex offenses against a child are routed to RCW 26.09.192 and excluded from that route. A finding also changes what the plan may contain, because RCW 26.09.187(1) forbids a dispute resolution process outside court where a limiting factor applies. This is a situation for a lawyer.