Equally Shared Custody
When it comes to Child Well Being and Parental Separation, they are both linked by unequal parenting plans that order the majority of residential visitation time to a single custodial parent. When one parent is making the majority of all decisions, it can lead to sidelining and/or alienating the non-custodial parent and a number of adverse effects for children.
The Washington State Center for Court Research provides important court research including Residential Time Summary Reports for 2008 through 2016. In the latest 2016 Residential Time Summary Report, 64% of mothers receive majority custodial visitation schedules and 25.3% are 50/50 parents. Compared to 2008 when 68% of mothers received majority custody and 16% were 50/50 parents, progress is being made. The fact remains that 74.7% of all custody arrangements remain unequal. Far too many fit and willing parents are not equal participants in their children’s lives.
In Washington State, there is no default presumption of equal shared custody when parents separate and/or divorce. Courts continue to order unequal parenting plans over the objections of fit and willing parents and despite all the advanced research and growing consensus on the benefits of equal shared parenting. The simple fact is that shared parenting of at least 35% and preferably equal 50/50 residential schedules is usually best for children who can feel securely attached to both parents. Equal shared parents also have less conflict which has been found to peak with custody splits in the 65/35 range.
Our goal at the local Washington State level is to get legislation passed into law that would protect the rights of every fit and willing parent to a default presumption of equal shared custody of their children when they separate or divorce. The court should be required to have written reasons justifying why equal shared custody was not in the best interest of child. Courts should not be picking who they think the best parent will be when shared parenting research overwhelmingly indicates it is equal parents. When courts demand both parents step up to be responsible equal shared parents, that is when they act in the best interest of children.
Child Support
A major problem in Washington State is even when parents agree on equal or significantly shared custody, only the home of the lower income parent benefits from child support. The default child support order and Washington State Child Support Schedule (WSCSS) worksheets apportion the total support owed by both parents to only the lower income (obligee) parent. Both parents may be obligated to pay child support but only one parent gets to spend the money that should otherwise be used for the benefit of the children at both homes.
Per RCW 26.19.075(1)(d), residential credit is awarded only by discretion of the court. Washington State courts award residential credit in only 7.4% of cases even though 58% of all families are significantly shared parents determined by 25% or more residential visitation. Over half of all separating/divorcing families will significantly share custody yet their child support order credits $0 in child care expenses to the higher income parent.
The majority of families do not receive a narrowly tailored child support order as required by law. The fact is that children’s expenses are paid by each residential parent in direct proportion to how much time they spend with the children. Parents with equal 50/50 parenting plans and residential time typically split children’s housing, clothing, food, transportation and other expenses approximately equally. Yet all child support money has gone to the lower income parent by default in Washington since 1991.
By not sharing child support money with both parents, the higher income obligor parent is burdened with over 100% of child(ren)’s basic support obligation costs. For over 71% of equal shared parenting homes denied residential credit, the obligor typically pays 60% to 80% of the child(ren)’s basic support obligation as a cash transfer payment while directly financially supporting 50% of the children’s expenses in their homes. The combination adds up to a completely shift of the child support burden to the higher income parent forced to pay 110% to 130% of the child(ren)’s basic support obligation.
The same calculations apply to other significantly shared custodial splits. For example, pay 70% of total support as a cash transfer payment and see your children 5 out of 15 days (35.7%) and you pay 105.7% of the total support obligation.
Leaving residential credit up to the court’s discretion under RCW 26.19.075(1)(d) results in the overwhelming majority of all 50/50 and other significantly shared obligor parents paying more than 100% of their child(ren)’s support obligation. This directly contradicts RCW 26.19.065(1)(a) in that “Each child is entitled to a pro rata share of the income available for support…” and relieves the obligee of their presumptive minimum support obligation “of not less that fifty dollars per child per month”. A shared parent paying only 50% of the children’s expenses is profiting and not paying anything out of pocket when they receive 100% of child support money.
The Washington State legislature is long overdue to follow the Washington State Child Support Workgroups’ repeated recommendations to codify residential credit as an automatic adjustment instead of a discretionary deviation to the Washington State Child Support Worksheet calculations. Courts do not like to deviate from support guidelines under the reasoning that deviations should be rare. However, the only way to make most parents truly pay their calculated basic support obligations is to make residential credit an automatic adjustment (like 1991 and prior) to the child support calculations. An automatic adjustment of residential credit would by default equally protect both parents and the children at both homes. It would make the court system more predictable, reduce parental conflict and additional modification petitions, and free up strained court resources to be able to hear cases more quickly.
Domestic Violence, VAWA, and Kayden’s Law
Domestic violence increases as parents fight over children. We can minimize this conflict by passing laws that support equal parental rights, equal shared custody, and child support reform. This will not eliminate all domestic violence and when it does happen, we need the court system to be able to fairly and correctly assess situations using properly trained experts, recognize false allegations, recognize when a child is pathologically bonded, and order reunification treatments.
We should also reexamine the mandatory arrest laws that surround domestic violence that have been proven to have no effect on preventing future DV here in Washington State. Here in Washington State, we should switch back to a discretionary arrest policy as prior to 1984 when “an arrest was at the discretion of police unless the officer was present when the offense was committed. However, to make an arrest the officer had first to obtain a warrant in the court.”
DV is a serious issue and a better balance needs to be struck between those truly victimized by it and those that use false allegations to gain a strategic legal, custodial, and financial advantage over the other parent. Making sure due process is followed so that only credible and verifiable allegations of DV result in arrest will help protect fit, willing, and able parents from false arrest so that they may remain equal participants in their children’s lives.