Change of Custody

Procedures in Yakima County Superior Court
This information is provided to you as a general explanation of what is involved to change legal custody from 1 parent to another. The process is complicated, and usually produces high emotional anxiety for the child as well as the parents. Great care and thought should be taken before you decide to start a case to try to change legal custody. You are advised to talk to an attorney about your situation.

Custody Change Process
The law provides a process for parents to try to have legal custody changed from one parent to another. Currently in Washington, custody is called "residential placement." Your divorce papers may refer to the placement of children as "custody" or "residential placement." Before a parent decides to try to change custody, that parent should consider what is truly best for the child.

In some cases parents agree to switch custody back and forth between them because it is convenient for them, rather than considering what is best for the child. Courts want what is best for the child, and will not quickly agree to a change.

It is a myth that children can pick which home they want to live in once they reach a certain age. In Washington, no child has this right until the child is actually emancipate or bum 18. Consequently, while parents should listen to their children, especially older children, about the child’s preference, such matters require a mature decision. Judges do not let children decide custody cases.

Custody Legislation
The law discourages lawsuits between parents to change custody once it has been established in the initial divorce. The law makes it difficult to change custody, and provides a penalty if you try to change custody in bad faith. If you try to change custody in bad faith, the court will require you to pay all of the court costs and the other parent’s attorney’s fees. The relevant statutes can be found in the Revised Code of Washington (RCW), chapter 26.09. You are encourage to go to the library and read the statutes, especially 26.09.180 through 26.09.280. The key statute involved for changing custody is RCW 26.09.260.

Legal Requirements
The legal requirements to change custody are complicated. You are advised to talk to a lawyer about your situation. Cases are especially complicated when 1 parent lives in another state, or your present custody decree or parenting plan was signed by a judge in another state, or 1 parent and/or the child has moved between states in the last 6 months. The various requirements when another state is involved are not discussed here. The court cannot change legal custody from the other parent to you unless you can show that there has been a substantial change of circumstances of the child or of the other parent since the last custody decree was signed by a judge. Also, you must show at least 1 for the following 4 things have happened:
  • Both parents agree to the change.
  • Your child has moved in with you, with the other parent’s permission, and the child is now "integrated" into your family.
  • Your child’s environment with the residential parent is detrimental to the child’s physical, mental, or emotional health and it is clear the child will be better off living with you.
  • The court has found the other parent in contempt of court at least twice within the last 3 years because that parent failed to follow the residential time provisions (visitation schedule), or that parent has been convicted of custodial interference in the first or second degree.
Above all else, no judge will agree to enhancing custody unless the judge is convinced that it is in the best interest of the child.

Difficulties for Children
The law assumes that any change of custody is hard on children. Consequently, before you can get custody changed legally, you will have to convince the judge that the advantages to the child of changing custody will outweigh the emotional harm to children from moving from 1 household to another.

Custody litigation is always hard on children. Children want to love both of their parents. Children get hurt when they see their parents arguing over them. Custody disputes are commonly called a "custody battle." As in military wars, children are all too often the innocent victims of battle.

If you decide to go ahead and try to change legal custody, take care that you do not draw your child into the emotional cross-fire with the other parent. Your child does not need to hear either parent complaining about the other parent. Your child needs a warm, loving, supportive and stable environment. Custody litigation tends to spoil the tranquility of the child’s home. Be sure your actions do no harm to your child.

Required Forms
State law requires the use of state-approved forms in any legal action in which you are trying to change custody. Forms are available at the Yakima Valley Regional Library reference desk in a book which can be photocopied. They may also be available from the Yakima County Clerk or the Yakima County Family Court Facilitator. The basic forms necessary include:
  • Petition for Modification of Custody Decree/Parenting Plans
  • Summons and Response to Petition for Modification of Custody Decree/Parenting Plan
  • Order on Adequate Cause and Order to Show Cause
  • Order re Modification of Custody Decree or Parenting Plan
  • Proposed Parenting Plan
Child support is always a concern for the court when children are involved. Parents cannot simply give up the right of child support. Child support is for the child, not the parent. Consequently, in addition to the forms listed above, you nay also need to use the Washington State Child Support Work Sheets, and use an "Order of Child Support."

Hearing Process
Once you file and serve your Summons and Petition there is a 3 step hearing process. First, you will have to go to court and show the judge that there are sufficient grounds to have this considered at trial.

This can be done without giving notice to the other parent that you will be seeing the judge. The judge will read the petition and any supporting sworn statements or affidavits you have. If the judge is convinced that there is a sufficient basis to consider changing custody, the judge will sign an order requiring the other parent to come to court.

Show Cause Hearing
This next hearing is called a "show cause" hearing. It is also commonly called a "threshold hearing." At the threshold hearing, the judge decides whether to let the matter go on for trial. To schedule the threshold hearing, you will need to have someone else serve the other parent with the Summons and Petition and the Order To Show Cause. At the threshold hearing, the judge makes this decision based on affidavits or sworn statements the judge reads in the court file from both sides, rather than hearing live testimony. If the judge allows the case to go forward, the trial might not occur for many months.

Testimony
At the trial, the court will hear live testimony from both sides and from any witnesses. The court will not consider affidavits or letters from your witnesses. You witnesses will need to be in court to testify. The judge will decide if you have been able to prove your case.

Temporary Residential Placement
Depending on the situation, the court may be willing to change residential placement of the child temporarily while the case is waiting to get to trial. If so, the necessary forms will include:
  • Motion and Declaration for Temporary Order
  • Declaration in Support of Proposed Temporary Parenting Plan
  • Proposed Temporary Parenting Plan
  • Temporary Order
Discussing Your Case
As can be seen from the information above, changing custody or a parenting plan can be very complicated. You should talk to an attorney about your case.