What If My Child Wants To Live With My Spouse After Our Divorce?

As a parent, establishing a custody and visitation schedule (now known as a “parenting plan”) can be one of the most emotionally challenging aspects of your divorce. This part of the process can be particularly difficult if your child has expressed a desire to live with his or her other parent.

Under Washington law, the child’s wishes can be a relevant factor in parenting plan determinations. However, the child’s wishes are not determinative, and ultimately the law requires divorcing parents (or the court presiding over their divorce) to develop a plan that, “encourage[s] each parent to maintain a loving, stable, and nurturing relationship with the child, consistent with the child’s developmental level and the family’s social and economic circumstances.” As a result, when a child expresses where he or she wants to live, this should not be discounted, but it also certainly should not be viewed as decisive with regard to the outcome of your divorce.

The Role of Washington’s “Best Interests” Factors in Establishing a Parenting Plan

In Washington, divorcing parents are required to develop a parenting plan that serves their children’s “best interests.” The law establishes a number of factors that are relevant to determining what is in a child’s best interest. With one exception, no factor is automatically weighed more heavily than any other. The single exception is, “[t]he relative strength, nature, and stability of the child’s relationship with each parent.” Under Section 26.09.187(3)(a) of the Revised Code of Washington, this factor is to be given the “greatest weight.”

Among the other factors listed in RCW 26.09.187(3)(a) is, “the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule.” What it means for a child to be “sufficiently mature” is not defined. As a result, the weight to be given to a child’s preferences (if any) must be determined on a case-by-case basis.

But, even assuming that your child’s wishes require consideration, his or her wishes must be considered within the context of the other “best interests” factors. For example, if your child wants to live with your spouse because he or she allows your child to skip school and stay out too late with friends, other more-pertinent factors will take precedence. Other factors that may ultimately outweigh the child’s preferences include (but are by no means limited to):

• “[P]ast and potential for future performance of parenting functions.” If you have been the primary care provider in your family, this factor should weigh in your favor.

• “[G]reater responsibility for performing parenting functions relating to the daily needs of the child.” In particular, if you have clearly taken primary responsibility for meeting your children’s daily needs, this should improve your chances of obtaining joint or primary custody despite your child’s wishes to the contrary.

• “The child’s relationship with siblings.” If you have multiple children, only one of your children has expressed a preference to live with your spouse, and the balancing of the remaining “best interests” factors weighs in your favor, the court may prefer to keep your children together.

• “[T]he child’s involvement with his or her physical surroundings, school, or other significant activities.” If you will be staying in the family home and your child attends school, visits with friends, and participates in other activities and events in your community, these factors can weigh in your favor as well.
• “Each parent’s employment schedule.” If your spouse works long or odd hours and your child would need to spend a significant amount of time alone, in daycare, or with a sitter, this too is a factor that could shift the overall balancing of the “best interests” factors in your favor.

Considerations for Seeking Custody When Your Child Wants to Live with Your Spouse

With these factors in mind, when preparing for a divorce with the knowledge that your child wants to live with your spouse, there are some important considerations of which you should be aware. These include:

1. Do Not Badmouth Your Spouse in Front of Your Child

Regardless of how you feel about your spouse and how much you want your child to live with you after your divorce, it is extremely important not to badmouth your spouse in front of your child. Any differences between you and your spouse need to remain between you and your spouse (vis-á-vis your children), and you should not try to turn your child against your spouse.

2. Do Not Try to Change Your Child’s Decision

While you can absolutely continue to be a loving parent, you generally should not do anything else to try to change your child’s decision. If your child is old enough to have a voice in where he or she will live, he or she is old enough to hold his or her own opinion. There are legal means for seeking your desired post-divorce parenting rights, and attempting to unduly influence your child could actually end up hurting you in your divorce.

3. Consider Seeking the Appointment of a Guardian Ad Litem

In a divorce, a guardianad litem serves as a neutral third party whose exclusive role is to protect the best interests of the children involved. If you do not believe that respecting your child’s choice is ultimately in his or her best interests, then obtaining the recommendation of a guardian ad litem could help you achieve a positive outcome.

4. Begin Preparing Evidence of Countervailing Factors

Regardless of whether you hope to negotiate a parenting plan with your spouse or you expect your divorce to end up in court, now is a good time to begin compiling evidence that demonstrates that Washington’s “best interests” factors weigh in favor of your desired parenting rights. Think about all of the ways that you play a positive role in your child’s life, and think of any evidence – photos, letters, receipts, friends and family who can serve as witnesses – that you may be able to use to your advantage.

Speak with a Tacoma, WA, Divorce Lawyer at Bolan Law Group.

If you are preparing for a divorce and would like more information about the factors involved in developing a post-divorce parenting plan, we encourage you to contact us for an initial consultation. To speak with an attorney at our Tacoma, WA, family law offices in confidence, please call (253) 470-2356 or inquire online today.