When Can a Child Decide to Live With the Other Divorced Parent by Washington State Law?

by Jim Thomas

    In many states, including Washington, courts in custody cases may consider the wishes of a child in terms of which parent he would prefer to live with after the divorce is granted. However, according to the American Bar Association, only two states, Georgia and West Virginia, give a child who is 14 or older the absolute right to decide which parent he's going to live with. In every other state, the judge decides where a child will live according to the "best interests of the child" standard. In short, a child in Washington state can express his preference to the court, but a judge decides where he will reside by designating one parent as the "primary residential parent."

    Best Interests of the Child

    As the Child Welfare Information Gateway website explains, courts in Washington and every other state focus on the "best interests of the child" when making custody decisions. However, "the best interests of the child" is not specifically defined. Instead, the court considers a number of factors related to the family situation, "with the child's ultimate safety and well-being as the paramount concern." Generally, courts wrestle with preserving the integrity of the family and protecting the health, safety and welfare of the child in reaching a decision.

    Washington Statutory Requirements

    Title 26 of the Revised Code of Washington, Section 26.09.087, spells out the considerations the court must consider in determining the best interests of the child and designating a primary residential parent. The statutory goal is to encourage each parent "to maintain a loving, stable, and nurturing relationship with the child." To accomplish this goal, the statute contains eight factors for the court to consider. The most important factor is the nature of the child's relationship with each parent. Another factor is "the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule." The benefits of allowing a child to remain in the same neighborhood and attend the same school is considered by the court as well.

    Age of Child

    An older child is more likely than a younger child to give a "reasoned" explanation to the court concerning where he wants to live. According to the American Bar Association, some judges won't listen to a child under the age of seven, assuming the child is too young to have an informed opinion. If an older child expresses a strong desire to live with one parent as opposed to the other, the court often will honor his preference. However, if a teenager wants to live with a parent who allows him total freedom, the court is unlikely to go along. Judges usually talk to a child in chambers rather than in open court. Sometimes the court enlists a child psychologist or social worker to aid the judge in his custody decision.

    Considerations

    Washington state requires parents to file a parenting plan to help the court determine custody and visitation issues. Washington used to subscribe to the "tender years doctrine," which presumed that younger children, in particular, were better off with their mother. However, that doctrine is a relic of the past and a court is neutral in determining who should be the primary residential parent. Although parents are cautioned not to involve their children in the actual formulation of a parenting plan, if the parents and children are in accord about post-divorce living arrangements, it's likely the court will approve it.

    About the Author

    Jim Thomas has been a freelance writer since 1978. He wrote a book about professional golfers and has written magazine articles about sports, politics, legal issues, travel and business for national and Northwest publications. He received a Juris Doctor from Duke Law School and a Bachelor of Science in political science from Whitman College.

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