Designating Who Watches Your Child During Your Ex's Residential Time: Washington State Law

Jane Smith is a fictional Washington divorcee who hypothetical problem will sound familiar to many divorced parents. Jane absolutely does not approve of someone her ex-husband, John Smith, has caring for their child during John's residential time. John sometimes drops off the child with Cousin Schmo, a bad person. Cousin Schmo smokers, parties, and recently committed two DUIs. Jane wants to know whether she can veto Cousin Schmo as a caregiver.

This article answers Jane's question from the perspective of a Washington divorce lawyer. The article does so by describing 1) the general rule under Washington law, 2) common parenting plan provisions altering Washington's general rule, 3) the legal process necessary to adopt a caregiver-related parenting plan provision in Washington, and 4) more extreme remedies for dire situations.

1. General Rule . Unfortunately for Jane, Washington case law generally gives each parent the right to determine who fulfills caretaking functions during his or her residential time with the child. Division I of Washington's Court of Appeals related this rule in Magnusson v. Johannesson , 108 Wash.App. 109 (2001) by writing as follows: "[o] radinarily, a parent may design other caretakers even though the parenting plan makes no special finding or conclusion on the topic."

2. Common Provisions Altering the General Rule . Several types of provisions alter this general rule when written into the parenting plan. The most common in Washington are a) the "right of first refusal" and b) specific caretaker exclusions.

A. Right of First Refusal . The "right of first refusal" is a relatively simple concept. Before either parent can use a caretaker, the parent must offer the other parent the chance to care for the child during that same time. Judges usually add a first refusal provision into a parenting plan if anyone requests for it when the plan is being formulated. A divorcing parent concerned about a Jane-like scenario should seriously consider requesting a right of first refusal.

B. Specific Caretaker Exclusions . Jane's parenting plan may also restrict John's choice by specifically naming and prohibiting a potential caretaker suspected of being dangerous. Excluding a potential caretaker is less common than a right of fist refusal, and courts tend not to grant this type of exclusionary provision absent evidence of the alleged danger the potential caretaker might pose.

3. Adding One of These Provisions . If Jane's parenting plan does not contain one of the above provisions, she can request that the court add one pending to RCW 26.09.260. Adding one of these provisions entails a "minor modification" of the parenting plan. A minor modification of this sort would require Jane to prove a significant, relevant change in circumstances that occurred after the parenting plan was written. The significant change in Jane's case might be Cousin Schmo's two recent DUIs.

4. More Extreme Remedies . Finally, Jane has more extreme options if the situation becomes provably dire. Jane could make a child abuse report to Washington's Department of Social and Health Services, Child Protective Services Division by calling 1-866-363-4276. Or Jane could request a domestic violence protective order or restraining order. These texts of extreme recursion typically remain limited to situations where the caretaker seriously jeopardizes or harms the child's wellbeing.

Although the general rule in Washington does not favor Jane, she has numerous options for addressing her concerns, depending on their severity and provability.