What You Need to Know
Child custody issues are incredibly complicated and fact-specific. While this chapter provides some general information, in many cases your best option is to try to find an attorney to help you. For some types of custody actions (particularly a dependency action or a termination of parental rights proceeding), you will be entitled to a free public defender; otherwise, you will have to find a lawyer to represent you on your own. If you cannot afford an attorney, try calling your local bar association to see if they have any free legal clinics you can access. Volunteer Lawyer Programs exist throughout the state of Washington and provide legal assistance in family law and other areas of the law to people whose income before taxes is below 200% of the Federal Poverty Guidelines. You can find information about services near you by doing an Internet search for “(your county) + volunteer lawyer program.” You can also look at Legal Voice’s publication on how to find a lawyer in Washington, available at www.legalvoice.org/how-to-find-a-lawyer.
Your specific child custody situation will depend on your custody arrangement before you went to prison and what has happened since you were first incarcerated. For instance, if you had primary custody before you went to prison, you may have left your children with their other parent or another family member, or if there was no one to care for them, a dependency action may have been initiated. If you did not have primary custody, you may be concerned about retaining your visitation rights when you are released. See Section 1 of this chapter for help understanding your current custody situation.
When a child’s parents don’t live together, the parents’ individual rights and responsibilities may be laid out in a parenting plan. If you and your child’s other parent were married and later divorced, you may already have a parenting plan; otherwise, you may choose to establish one. There are pros and cons to establishing a parenting plan while you are incarcerated. For more information about parenting plans, including the process to establish one and some considerations that may affect your decision, see Sections 2-5.
A parenting plan can be modified when there is a change in circumstances, including the incarceration of one of the parents. Modifications can be major (such as changing who has primary custody of the child) or minor (such as making changes around visitation). If you already have a parenting plan, it’s possible that your children’s other parent may have petitioned the court to modify the plan when you went to prison. For information on responding to a petition to change a parenting plan, and the impact of your incarceration on an existing plan, see Sections 6-7.
If there is no responsible guardian to care for your child, the State will initiate a dependency action. A dependency action is a series of court hearings to determine whether a child is dependent, meaning that she has no parent or guardian who is suitable and available to care for her. If your child is found to be dependent, she will be placed into foster care; if your child is in foster care for 15 of the last 22 months, the State will initiate proceedings to terminate your parental rights. See Sections 8-11 for information on dependency actions, what to expect, and how to respond.
One of the most important things you can do to protect your custody and visitation rights is to make sure you stay actively involved in your child’s life. If your parental rights are ever in danger of being terminated, you will need to prove that you maintained a “meaningful role” in your child’s life, which could include letters, visits, telephone calls, and other forms of contact. It is a good idea to keep a written log of those contacts in case you ever need to provide evidence of your involvement. You should also show interest in legal proceedings involving your child; if you are incarcerated you will likely not be able to attend family law hearings in person, but you can request that you be allowed to participate by phone. For more information about steps you can take to get or retain your custody and visitation rights, see Section 15.
In order to regain your custody and/or visitation rights once you are released, you may need to “unwind” whatever custody arrangement was in place while you were incarcerated. See Section 16 for more information about possible scenarios and how to modify them after you are released.
Contents
- What happens to my child when I go to prison?
- What is a parenting plan?
- Where can I find my parenting plan?
- What do I need to consider before getting a parenting plan?
- How can I get a parenting plan if I don’t have one?
- What if I cannot comply with my parenting plan because I am incarcerated?
- What is a parenting plan modification? How do I respond to a petition to modify my parenting plan?
- What is a dependency action and when can a dependency action be initiated against me? How do I respond?
- What should I expect during the dependency process?
- Can I lose my parental rights forever?
- Do I have a right to an attorney to help me with custody and visitation issues?
- Can I get custody of my children while I am incarcerated?
- Can my children visit me while I am incarcerated?
- Do I have the right to attend custody and visitation court hearings?
- What are the best things I can do while still incarcerated to ensure I can get or retain custody or visitation with my child after I am released?
- Can I get or regain custody of my children when I am released? How do I do this?
- How can my conviction record affect future custody and visitation judgements?
- How does it affect my custody and visitation rights if the other parent or my child has a protection order against me?
- Once I am released, can the other parent refuse to comply with the parenting plan that existed before I was incarcerated?
- What can I do if my child’s other parent refuses to comply with the parenting plan?
Introduction
This chapter outlines basic custody and visitation rights during and after incarceration and includes steps you can take while incarcerated to maximize your chances of having custody and visitation with your children after incarceration. The end of this chapter includes a list of resources that can help you navigate the family law system.
While reading this chapter, it is important to understand how child custody and visitation cases are decided. Judges make their decisions based on what they believe is in the “best interests” of the child. This means that family law decisions are unique and determined on a case-by-case basis. The judge will consider the following factors from RCW 26.09.187 when deciding what is in the child’s best interest:
- the relative strength, nature, and stability of the child’s relationship with each parent;
- whether one parent has historically taken greater parenting responsibility and whether one parent has demonstrated greater potential for parenting responsibility in the future;
- any agreements the parents have made with one another regarding custody;
- each parent’s ability to perform as a parent;
- the emotional needs and developmental level of the child; and
- the wishes of the child, if she is mature enough to express them.
Because custody and visitation decisions are so individual, understanding the options available to you begins with understanding your circumstances. With that in mind, the following sections will explore various scenarios. You should look for the one that best applies to you.
Understanding the Basics: Who Has Custody and Why?
What happens to your child when you are incarcerated depends on whether you had primary custody (i.e., if you were the main person taking care of her day to day) before you were incarcerated. Read on for more specific information about a few common scenarios.
If you had primary custody:
If your child lived with you before you were incarcerated, you can place her in a safe and stable home with family or friends while you serve out your sentence. A few different ways that you can do this and some pros and cons of each are outlined below.
Leave your child with her other parent. If you have a good relationship with your child’s other parent, you can leave your child with him or her. You can arrange to leave your child with the other parent informally (without putting anything in writing) or formally (with a written agreement or a court order). See Section 2 below for more information about parenting plans and arrangements with your child’s other parent.
Temporary Parental Consent Agreement (TPCA). If the other parent is not available or is not a suitable placement for your child, you may choose to place your child with other family members or friends. You can arrange this informally; however, the person you appoint may be limited in the decisions they can make for your child. For example, the caretaker may not be able to make medical decisions in the event of an emergency.
One way to give decision-making authority to your child’s temporary caretaker is through a Temporary Parental Consent Agreement (TPCA). A TPCA shows that you have given this third party temporary custody of your child and allows the caretaker to make decisions that a parent would make.
A TPCA has a number of benefits. For instance, you can revoke it anytime you want. It is important to note, however, that a TPCA is not a court order, and will only work if the other parent doesn’t object. If the other parent objects to the TPCA, his or her parental rights will likely trump the non-parent’s authority granted by the TPCA. Getting a TPCA can be a good option if the other parent is no longer in the picture, if the other parent agrees to it, or as a stop-gap while you pursue a more reliable option.
If the other parent objects to the TPCA, the friend or family member you selected to care for your child can file a non-parent custody petition (see below for more details). Be aware that a non-parent custody petition may result in the legal finding that you are an unfit parent for your child, which can negatively affect your future family law actions. You should consult an attorney before pursuing this option.
Non-Parent Custody Petition. A non-parent custody petition is a request by a non-parent, often a very close family member, to gain custody of a child. If either parent objects to the petition, the person filing the action must prove either (a) that both parents are unfit, or (b) that living with either parent is an actual detriment to the child’s growth and development.
If the non-parent who files the petition is successful in convincing the court that your child should live with them, you may have a difficult time getting your child back after you are released. To learn more about non-parent custody, visit www.washingtonlawhelp.org/issues/family-law/nonparental-custody.
Foster Care. If you were not able to find someone to care for your child before you were incarcerated, and she was left alone without a responsible adult to care for her, she may have been placed in foster care (see Sections 8-11 for more details). This may negatively affect your parental rights but does not automatically terminate them. The following section will only address when having your child in foster care could result in your parental rights being terminated and what you can do to protect yourself. You are entitled to an attorney, and if a dependency action was initiated, a public defender should have been appointed to represent you.
Generally, when a child has been in foster care for 15 of the last 22 months, the law requires the court to start termination proceedings. During a termination proceeding, the parents’ parental rights may be terminated unless the court finds good cause why parental rights should not be terminated. A judge may find that good cause not to terminate parental rights if all of the following are true:
- The reason your child is in foster care is because you are incarcerated;
- You maintain a “meaningful role” in your child’s life; and
- The Department of Social and Health Services (DSHS) has not shown another reason why your parental rights should be terminated.1
The court will look at a number of things to decide if you are maintaining a meaningful role in your child’s life during your incarceration, including whether you show concern for your child through letters, telephone calls, visits, or other forms of communication. The court will also consider:
- How well you work with DSHS or others to follow your service plan and repair, maintain, or build your relationship with your child;
- Whether you respond positively to the supervising agency’s reasonable efforts for your child;
- Whether your attorney, correctional or mental health personnel, or other individuals helping you provide information showing you are doing your best to maintain a meaningful role in your child’s life; and
- Whether your continued involvement is, overall, in the “child’s best interest.”2
The court will take into account the fact that your incarceration limits your ability to participate in family support programs, therapeutic services, foster care planning meetings, and court proceedings; limits your visiting opportunities; and restricts your access to telephone and mail service. In other words, the court will consider the above factors in light of the fact you are limited by incarceration.
If you did not have custody:
If you didn’t have custody of your child before you were incarcerated, then your child will remain with her custodian. Your incarceration won’t affect custody in this scenario, but it will affect your ability to visit with your child. To learn more about visitation while you are in prison, refer to Section 13 below.
A “parenting plan” establishes the amount of time the child will spend with each parent, which parent will make major decisions about the child, and how the parents will work out disagreements. In Washington, if you have been divorced from the other parent, custody and visitation is determined by a court-ordered parenting plan. If you and the other parent never married or are still married, you probably do not have a parenting plan; however, you may be able to create a parenting plan if you want one. See Section 5 for more details.
Once a judge signs the parenting plan, it becomes a binding court order, which means that both parents must follow it. If you or the other parent does not follow the parenting plan, the judge may find you in contempt of court.
If you have a parenting plan, you can obtain a copy from the court that entered it. If you do not know the court that entered the parenting plan, have someone you know run a name search on the website for Washington Courts: http://dw.courts.wa.gov/index.cfm?fa=home.home. They can use your legal name or the other parent’s name. This will tell you the court and case number of your parenting plan. Then, you can have someone go to the courthouse to request a copy. The clerk will charge a small fee for printing copies, and a larger fee for certified copies.
If you cannot find the case number, the clerk can find it for you but may charge a research fee. Note that while parenting plans should be available, parentage and dependency files are sealed. This means that the family member or friend requesting the records can place the request, but the court will not release the documents to them. If you need those files, your best option is to go to the courthouse yourself with a photo ID after you are released.
If you and the other parent have never gone through divorce proceedings (i.e. you are still married or you were never married in the first place), you probably do not have a parenting plan. If you are thinking about getting a parenting plan while you are incarcerated, you should consider your relationship with the other parent, how much longer you will be incarcerated, the ages of your children, and, what you might gain from having a court ordered parenting plan.
Your relationship with the other parent is important for two reasons. First, if you have a good relationship with the other parent, you might not need a parenting plan. Instead, you can arrange visitations (or phone calls if visits aren’t an option) with your child and spare both of you the cost and stress of court. Second, if you and the other parent can agree on the terms of your parenting plan without the court’s involvement, it will make the process easier and faster for both of you. If you and the other parent cannot agree on the terms of your parenting plan, it can take up to a year, or longer, to resolve. If you will be released in a year or less, it might be better for you to wait until you are released to start the process.
Your child’s age is important to consider along with your release date. If your child will turn 18 before you are released, a parenting plan won’t help ensure contact, since your adult child will not be bound by it. Parenting plans terminate when the child is 18 years old, and a court will not order a parenting plan for a child who is 18 or older. If your child is a legal adult, she can arrange contact with you privately.
If your child is not old enough to contact you privately, and the other parent won’t help you to stay involved in your child’s life, you may decide to file for a parenting plan to establish a legal right to visitation, even if it is only through phone calls. To learn more about visitation while you are incarcerated, refer to Section 13 below. The short answer is that your child can visit you, but no one is obligated to bring her to see you. However, your parenting plan could specify other types of visitation, such as letters or phone calls.
If you choose to initiate a parenting plan while you are incarcerated, this section describes how to start the process. You should be aware that it is a complicated process and usually requires court appearances (which will likely require making a motion to appear by phone). It may be difficult for you to initiate parenting plan legal proceedings while you are incarcerated.
A parenting plan can only be established between two legal parents. If your name is on your child’s birth certificate or if you legally adopted your child, you are a legal parent. If neither of those things is true, you may still be a legal parent, but your situation is more complicated and you may need to prove your status. The process varies based on your situation, but Washington Law Help has put together a guide that may be useful; you can find it at www.washingtonlawhelp.org/resource/parentage-and-parenting-plans-for-unmarried-p. Legal Voice has put together a similar guide for same-sex couples, which is available at www.legalvoice.org/parenting-issues-same-sex-couples.
Once parentage has been legally established, you and the other parent can complete a parenting plan for any children you have together who are younger than 18 years old. If you and the other parent agree on the parenting plan, you can submit an agreed order to the court and it will usually be approved.
If you and the other parent cannot agree on the parenting plan, you will have to ask the court to make a parenting plan for you. This is a complex legal action and may be difficult to complete while incarcerated. For more information, visit www.washingtonlawhelp.org/issues/family-law/parenting-plans-residential-time.
There may be consequences for not complying with your parenting plan. The consequences you experience will depend on your relationship with the other parent and the terms of your parenting plan.
Loss of Custody. If your parenting plan gave you custody of your child before you were incarcerated, the other parent can pursue a major modification granting him or her custody instead.
Diminished or Altered Visitation. If your parenting plan doesn’t grant you custody but establishes visitation, the other parent can pursue a minor modification that would change visitation.
For more information about major and minor modifications and how to respond, see the next section.
To modify or change a parenting plan, either parent can file for a “parenting plan modification.”
Washington courts take parenting plans very seriously and a court will generally only change custody and visitation in a few situations. If your child has been integrated into the family of the person asking for the change with your consent, you can agree to the modification. Remember that each case is unique, and the court will make a case-by-case determination of what constitutes “substantial change in circumstances” and “best interests of the child.” You should consult with an attorney to receive specific advice for your situation.
The following section will explain the types of parenting plan modifications and the process for responding to them.
Major modifications. A major modification is a big change to your plan, such as changing the person who has primary residential custody of a child. To make a major modification to a parenting plan, the person filing must prove that there was a substantial change in circumstances for the child or the custodial parent. Incarceration of the custodial parent is considered substantial change in circumstances. Information on responding to a petition to modify a parenting plan is provided at www.washingtonlawhelp.org/issues/family-law/parenting-plans-residential-time.
Minor modifications. A minor modification is a small change, such as a change in the visitation schedule. To make a minor modification to a parenting plan, the person filing must prove that there was a substantial change in circumstances for the child or either parent. Incarceration of the noncustodial parent is a substantial change in circumstances that can be used to justify a minor modification.
To make a major or minor modification, the other parent may serve you with what is called a “Petition to Change a Parenting Plan, Residential Schedule or Custody Order” while you are incarcerated. You will have 20 days to respond to such a petition. If you do not respond on time, the court will likely grant the other parent the change they are requesting.
Child custody issues are incredibly complicated and can be difficult to navigate on your own, so you should consult with an attorney if possible. If you cannot afford an attorney and wish to object to the proposed change to your parenting plan, you can use the “Response to Petition to Change a Parenting Plan, Residential Schedule, or Custody Order” form provided on the Washington State Courts website at www.courts.wa.gov/forms/?fa=forms.static&staticID=14. Additionally, there are detailed guides on the Washington Law Help website under the Family Law section; visit www.washingtonlawhelp.org/issues/family-law/parenting-plans-residential-time. If you are low-income, you may also be able to get help by calling the CLEAR hotline at 888-201-1014 (available Monday-Friday from 9:15 a.m. – 12:15 p.m.).
Dependency Actions and Termination of Parental Rights
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What is a dependency action and when can a dependency action be initiated against me? How do I respond?
A dependency action is a series of court hearings to determine whether a child is dependent on the state for protection, meaning that she:
- Has been abandoned by her parent, guardian or other custodian; or
- Has been abused or neglected by a person legally responsible for her care; or
- Has no parent, guardian or custodian able to care for her, and there is a danger of serious damage to her psychological or physical development.
A dependency action can be initiated by any person or by the Department of Health and Human Services (DSHS) by filing a petition with the juvenile court. A dependency action will also be initiated if the child is removed from the home. The goal of a dependency action is to allow the state to protect a child from harm within her family. You will be notified if a dependency action regarding your child is initiated, even if you are incarcerated at the time. You have the right to an attorney. If you are low-income, the court must appoint an attorney for you.3 If a dependency action might terminate your parental rights, you also have the right to a free attorney (see Section 11 for more information on right to legal assistance in family law proceedings).
After a dependency action is initiated, the juvenile court will hold a “shelter care hearing” to determine the next step. The shelter care hearing must occur within 72 hours of when the child was removed from the home (if the child was removed) or from when the petition was filed (if the child was not removed).4 At the shelter care hearing, the court decides where the child will live until the next hearing. If possible, the court will attempt to place the child with a relative, but the primary consideration is the health, safety, and welfare of the child.5 It is very rare for the case to be dismissed at this stage.
The next hearing is held thirty days after the shelter care hearing to evaluate the situation. You will be offered the opportunity for you and your attorney to participate in a “case conference” with a DSHS social worker and other parties to discuss the next steps. If the circumstances have changed such that the child no longer needs the protection of the state, the dependency will be dismissed. If the case cannot be dismissed, the state and the parents may agree on what is best for the child in the future. If they cannot come to agreement, the court will hold a trial to determine whether the child is “dependent.”
If your child is not found to be dependent, then your custody and visitation rights will not change. If your child is dependent, the court will issue a “dispositional order” that states where the child will live, your visitation rights during any period in which she does not live with you, what social services programs you must complete to get or keep custody, and DSHS’s responsibilities in helping you complete such services. If the dispositional order requires you to complete certain social service programs, the plan can be written to include social services options available at your facility to the extent possible. Talk to your attorney for help with tailoring the plan to your specific circumstances. The visitation granted in the dispositional order may have to be supervised (by a relative or someone else the court appoints). The court may also limit your visitation if it decides that the health, safety, or welfare of the child is at risk.
The court will conduct an initial progress review hearing either 60 days after the entry of the dispositional order, or, if the child was removed from the home during the dependency action, six months after the child was removed from the home.6 At this hearing, the court will review what progress is being made towards the objectives set in the dispositional order.
Finally, no later than twelve months after the child was removed from the home, the court must issue a “permanency plan,” which may dismiss the proceeding if the concerns resulting in the dependency action have been resolved, or may address long-term foster care, emancipation, or termination of parental rights.
Like many topics in family law, dependency actions are complicated and incredibly fact-specific, so you should be sure to consult with an attorney. Much more detailed information about what to expect during a dependency action is available from Washington Law Help at www.washingtonlawhelp.org/files/C9D2EA3F-0350-D9AF-ACAE-BF37E9BC9FFA/attachments/EEBBB2C3-23CA-416C-B9AF-A7916C08A488/3120en_child-protective-services-and-dependency-actions.pdf (be sure to look at the chart at the end of the document).
If a child is found dependent on the state for protection, you can lose your parental rights through a “Termination of Parent-Child Relationship” proceeding. The state will initiate this process if your child has been in foster care for 15 of the last 22 months. A termination proceeding is also one of the possible outcomes of the permanency plan that is entered at the end of a dependency action (see Section 8 for more information).
In order to avoid having your parental rights terminated, you must maintain a “meaningful role” in your child’s life. Evidence of maintaining a meaningful role in your child’s life may include anything showing concern for the child, such as letters, telephone calls, visits, and other forms of communication. Even if you are prevented from making actual contact, you should keep trying, since courts may not have sympathy for a parent who gives up. Courts will also consider the parent’s efforts to work with DSHS in repairing, maintaining, or building the parent-child relationship; limitations that prevent you from participating in foster care planning meetings, court proceedings, and therapeutic or family support services; and whether your continued involvement in your child’s life is in her best interest.
Unless the court’s actions are for dependency or termination of parental rights, you do not have a right to a free attorney. If you qualify as “low-income” (meaning that you are at or below 200% of the federal poverty line) and need help with non-criminal issues such as custody and visitation, you may be able to obtain low-cost legal services by calling:
- 2-1-1 if you live in King County or
- CLEAR at 1-888-201-1014 on weekdays 9:10 a.m. to 12:25 p.m. if you live elsewhere in the State of Washington.
- You do have a right to an attorney in termination proceedings. If you cannot afford to hire a lawyer, a public defender will be assigned to you.7
Understanding Custody and Visitation During Incarceration
“Physical custody” refers to the right to have your child live with you. Generally speaking, you cannot have your child live with you while you are incarcerated. There are rare exceptions to this rule, such as Residential Parenting Program (RPP) at Washington Corrections Center for Women. This program allows women who are pregnant when entering prison to live with and raise their infants while serving their sentences. Women entering the institution are not automatically entitled to participate, but rather must apply to the program. Participants are chosen based on a screening process. If you are to be incarcerated at this facility and think you may be eligible for this program, you should ask your counselor or community corrections officer for more information.
In general, your child will be able to visit you while you are incarcerated, although she will be limited by the DOC visitation policies that apply to any visitor. Your child will need to go through the regular visitation procedures and requirements. Ask your classification counselor or community corrections officer for more information about the rules at your facility.
That said, the person who is caring for your child is generally not obligated to bring her to the prison. Even though you have the right to visitation established in your parenting plan or another order, you may not be able to visit with your child in person if no one will bring her to you, and the court is unlikely to order them to. You may still call and write, though, and you should do so regularly.
You do have a right to be present at any court proceeding that may result in termination of your parental rights or your child being declared a “dependent” of the state, as explained in Section 8, above. You will be notified if a hearing is scheduled. You will typically have 20 days to notify the court of your desire to attend. Once you request to be present, the court cannot proceed without you and your attorney.
You do not automatically have a right to attend family court hearings if you are incarcerated, though you can ask the court to order your presence at the hearing. To do this, you should file a motion (a written request to a court to take a specific action), that explains why your presence at the hearing is necessary and requests that the court allow you to appear by phone (if you are incarcerated, it is very unlikely that you will be able to be transported to physically appear in court for a family law proceeding). The court will decide whether to grant your motion. Typically, you should also submit a proposal of the order you would like the court to sign.
You may be eligible for a furlough (a release without restrictions) if you have served the minimum amount of time. If this is the case, you may ask to temporarily be released from prison or jail to attend the hearing. For more information on attending court hearings, see “Responding to Family Actions while Incarcerated” by Legal Voice, available at http://docs.legalvoice.org/Responding_to_Family_Law_Actions_While_Incarcerated.pdf.
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What are the best things I can do while still incarcerated to ensure I can get or retain custody or visitation with my child after I am released?
The most important thing for you to do is maintain contact with your child. You should communicate with your child as much as you can and make the most of visitation time with her. If your child is in foster care for an extended period of time, a court may file a petition to terminate your parental rights, but a court is less likely to do this if you are maintaining a “meaningful role” in your child’s life. See Section 11 for more information on what it means to maintain a “meaningful role” in your child’s life. It is also a good idea to keep a journal or log of your contacts with your child and her social worker (i.e. all conversations, letters, voicemails, etc.). Having this record may be useful in future family law actions to help you prove that you stayed involved in your child’s life.
You should show interest and concern in any legal proceedings regarding your child. Appear at any hearing at which you are legally entitled to be present, and request to be present at hearings even if you do not have an automatic legal right to attend (while you are in prison, you will likely have to attend by phone).
Call and check in frequently with your child’s social worker. This helps to show the court that you are interested in your child’s welfare and are making efforts to maintain a meaningful role in her life while serving your sentence.
If there are parenting trainings available at your DOC facility, attend them. This will demonstrate to the court that you are committed to parenting your child after your release, and may increase your chances of having favorable custody rulings in the future. It may also be useful to take classes on chemical dependency, anger management, or other skills that would contribute to your ability to be a fit and responsible parent. Remember to keep a record of all classes and trainings you complete.
Finally, do everything you can to prepare for reentry stability. Washington is a “best interests” state, meaning that a judge will generally make an individualized determination of what is in the best interests of your child when making family law judgments. This means the court will make custody and visitation decisions that she believes will encourage your child’s emotional growth, health and stability, and physical care. Having a stable post-release life will help you demonstrate that you can provide those things to your child.
Understanding Custody and Visitation After Release
Whether you can get custody of your child after you are released depends on who had custody while you were incarcerated and how custody over your child was established.
If you have a parenting plan:
When you are released, your parenting plan, if you had one, will still be in place with any modifications made during your incarceration. If your parenting plan does not grant you custody or visitation with your child, you can try to modify it.
If you and the other parent agree on the proposed changes to the parenting plan, you can submit your modified version to the court for approval. This is the quickest and easiest way to change the plan, so you should try to reach agreement if you can.
If an agreement is not possible, you can ask the court to change the parenting plan. To do so, you must file a petition and show the court that there has been a substantial change in circumstances that justifies the change to the existing parenting plan. If you are seeking primary residential custody, you must be able to show a substantial change in either the child’s life or the custodial parent’s life. If you are only seeking increased visitation, you may also show a substantial change in your own life. Things like having stable employment and housing will greatly increase your chances of getting or retaining custody of your children once you are released.
For additional information on modifying parenting plans and other common custody questions see the Washington Law Help publication available at www.washingtonlawhelp.org/resource/child-custody-modification.
If you do not have a parenting plan:
If the other parent has custody of your child and you do not have a parenting plan, you can get custody of your child with the other parent’s agreement or by asking the court for a parenting plan that gives you custody.
Gaining custody with the other parent’s consent. If you do not have a parenting plan, you can get custody of your child if the other parent consents. This will require you to have a relationship with the other parent that will allow the two of you to talk and work this out.
Gaining custody by establishing a parenting plan. If other parent won’t agree to give you custody, then you will have to ask the court for a parenting plan that gives you custody. You and the other parent will each submit your proposal for a parenting plan. This is done by filling out the “FL All Family 140” Form available at the Washington Courts website (www.courts.wa.gov/forms). Washington Law Help has a guide for filling out the parenting plan proposal, which is available at www.washingtonlawhelp.org/resource/parenting-plans-and-child-support-for-dissolu. See Section 5 for more information on establishing a parenting plan.
If there is a Temporary Parental Custody Agreement (TPCA):
If you used a Temporary Parental Consent Agreement to leave your child with a friend or relative and it remained in place throughout your incarceration, you can regain custody of your child by revoking the TPCA. A TPCA can be revoked at any time and in any manner, but it is best to provide written notice to the non-parental custodian that you are revoking the agreement. Make sure to keep a copy of the document for your records.
If there is a Non-Parent Custody Order:
If the court granted custody to a non-parent while you were incarcerated, you will need to seek a major modification to the non-parent custody order. This is similar to the process for modifying a parenting plan, but with one major difference. When the non-parent petitioned the court for custody of your child, they were required to prove that the child’s parents (including you) were unfit or that it would be an actual detriment for the child to live with them. Because there is a record of you being identified as unfit, you will have to show that there has been a change in your own circumstances as well as those of either the non-parent custodian or the child. This can be done by securing stable employment and housing, providing evidence that you have worked to improve your parenting skills through therapy or classes, or providing evidence that you have been rehabilitated and are not likely to be incarcerated again. Pay particular attention if the order states specific reasons for unfitness. These are not the only things you can do; they are examples of the types of things you can use to show that you are no longer unfit to be the child’s guardian.
If the non-parent custody order was by agreement, without a court finding of unfitness or actual detriment, you are still presumed to be a fit parent. When you move to modify the order, the other side must prove that you are currently unfit. You do not have to show a substantial change in circumstances.
Washington law favors custody and visitation arrangements that allow a child to have a relationship with both parents, as long as those arrangements are in the child’s best interests. In creating a parenting plan or modifying an existing parenting plan, a judge may take your criminal record into account if an aspect of your criminal history is relevant to your parenting ability. Evaluating your child’s best interests in light of your criminal convictions is in the discretion of the court. You should consult with an attorney to find out how your specific criminal record may affect the court’s decisions.
Certain types of convictions are viewed as particularly relevant to your parenting ability, such as domestic violence, child abuse or abandonment, or certain sexual offenses. If your convictions involve sex offenses as an adult, the court will assume you pose a danger to your child. You can challenge that assumption in court, but you must produce evidence of why that assumption is incorrect. If you live with someone who has been convicted of a sex offense as an adult, the court will assume that person poses a danger to your child. You can arrange visitation with your child away from the convicted person or challenge that assumption in court with evidence that such person does not pose a danger to your child.
If your convictions involve child abuse or domestic violence, the court may make provisions to ensure your child’s safety, such as visitation exchanges in a protected setting or visitation supervised by professional or by a neutral adult who is willing to protect the child from harm.
If you cannot afford an attorney, try calling your local bar association to see if they have any free legal clinics you can access. Volunteer Lawyer Programs exist throughout the state of Washington. To find information about services near you, Google “(your county) + volunteer lawyer program”. Volunteer Lawyer Programs provide legal assistance in family law and other areas of the law to people whose income before taxes is below 200% of the Federal Poverty Guidelines. You can also use Legal Voice’s publication on how to find a lawyer in Washington state, available at www.legalvoice.org/how-to-find-a-lawyer.
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How does it affect my custody and visitation rights if the other parent or my child has a protection order against me?
This depends on what the protection order says. Protection orders contain specific instructions about what you can and cannot do. For example, some say to stay away from the child’s school, while others just say not to hurt her. Be sure to read your order carefully and to do what it says. Consult an attorney if you are unsure what is allowed under a protection order against you.
You should have been given a copy of the order, but if you don’t have it you can obtain a copy from the court that issued it. Be prepared to pay a fee to access it. If you cannot afford the fee, you can simply look at the order for free in the court clerk’s office, but you must know your case number. If you do not know the court where the protection order was issued, have a family member or friend run a name search of your legal name or the name used by you in the original custody proceedings on the website for Washington Courts: http://dw.courts.wa.gov/index.cfm?fa=home.home. This will tell you the court and case number of your protection order, and you can then have a family member or friend go to the courthouse to request it. The clerk will charge a small fee for printing copies, and a larger fee for certified copies of the order. If you do not have the case number, the clerk can find it for you but may charge a research fee. Protection orders are public record, so a family member or friend will be able to obtain a copy of the order.
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Once I am released, can the other parent refuse to comply with the parenting plan that existed before I was incarcerated?
Both parents must comply with the parenting plan. In Washington, if one parent fails to comply with a provision of a parenting plan, the other parent’s obligations under the parenting plan remain the same. Therefore, the other parent may not refuse to follow the parenting plan because your incarceration prevented you from complying with the original plan. If the other parent wants to change the parenting plan, they must ask the court for a modification. Even if the other parent refuses to comply with the parenting plan, you must continue to comply with it, as noncompliance may hurt your chances for favorable findings in future family law proceedings.
There are a number of things you can do if the other parent refuses to honor the parenting plan.
Demand Letter. You can send the other parent a letter explaining the violations and asking that they correct them. Keep a copy of the letter for your records. Send the letter by certified mail, if possible, so you will have proof the other parent received the letter. The other parent may choose to follow the parenting plan as a result of your letter, but if not, the letter can later show the court you acted reasonably and attempted to resolve the issue. Because the court may later see this letter, you should make sure your letter is polite and to-the-point. The letter should also make specific reference to sections of the final parenting plan and how it is being violated.
Motion to Clarify the Parenting Plan. Is the parenting plan vague or unclear on a particular point? Do you and the other parent disagree on the meaning and whether a particular action is or is not allowed under the parenting plan? If so, you may file a motion asking the court to clarify the parenting plan. If you need help preparing your motion, an attorney or Family Law Court Facilitator should be able to help you.
Dispute Resolution. Many parenting plans contain a dispute resolution provision. Dispute resolution is a process to resolve issues outside of court, such as mediation or arbitration. In mediation, a neutral third party (mediator) helps you and the other parent to negotiate and to come to an agreement. In arbitration, a neutral third party (arbitrator) listens to you and the other parent and makes a decision to settle the disagreements. If your parenting plan requires a mediation or arbitration, you must first attempt mediation or arbitration before going to the court.
In most cases, you will have to pay the mediator or arbitrator, and it can be expensive. However, going to court can be expensive too, with additional stress and unpredictability. Washington Law Help has a publication titled “Mediation: Should I Use It?” (available at www.washingtonlawhelp.org/resource/mediation-should-i-use-it) that may be helpful in making this decision.
Contempt. “Contempt of court” simply means intentional disobedience of a court order. For example, if the other parent intentionally refuses the visitation time granted to you in a parenting plan or refuses to return the child at the end of their visitation time, that parent may be in contempt of court. Contempt of court is an extreme remedy and is granted only rarely. Therefore, you should pursue it only if the other parent seriously violated the parenting plan when they had the ability to comply and you have already tried other means described in this section without success.
If you decide to pursue a contempt finding against the other parent, you can file a motion with the court along with a declaration describing the conduct you believe supports a contempt finding. In order for a court to find a person in contempt for a parenting plan violation, it must find that one of the following is true:
- The violation of the parenting plan was made in “bad faith,” meaning the other parent meant to violate the parenting plan, OR
- There is evidence that the person who violated the plan engaged in intentional misconduct, OR
- Earlier sanctions have not led the other parent to follow the order.
If the other parent is found in contempt for violating a parenting plan, the court may give you a remedy such as extra “make-up” residential time with your child, award attorney’s fees, or fine the other parent.
While contempt is an option, it should be a last resort. Contempt is difficult to prove. In addition, if you lose the contempt motion, the court can require you to pay the other parent’s legal fees. For information on whether pursuing a contempt order is appropriate under your circumstances, see “Contempt of Court in Family Law Cases – The Basics” from Washington Law Help, available at www.washingtonlawhelp.org/issues/family-law/contempt-of-court.
Resources
Documents:
Responding to Family Law Actions while Incarcerated, Legal Voice,
www.legalvoice.org/responding-to-family-actions-while-incar
Parenting Plans: General Info, Northwest Justice Project,
www.washingtonlawhelp.org/resource/parenting-plans-court-orders-about-child-cust
Parentage and Parenting Plans for Unmarried Parents in Washington, Northwest Justice Project,
www.washingtonlawhelp.org/resource/parentage-and-parenting-plans-for-unmarried-p
Changing a Parenting Plan/Child Custody Order, Northwest Justice Project,
www.washingtonlawhelp.org/resource/child-custody-modification
Non-Parent Custody: Frequently Asked Questions and Answers, Northwest Justice Project,
www.washingtonlawhelp.org/resource/nonparental-custody-of-a-child-frequently-ask
Child Protective Services (CPS) and Dependency Actions, Northwest Justice Project,
www.washingtonlawhelp.org/resource/child-protective-services-cps-and-dependency-actions
Child Protective Services (CPS) and Dependency Actions, Legal Voice,
www.legalvoice.org/tools/family-law.html
Contempt of Court in Family Law Cases – The Basics, Northwest Justice Project,
www.washingtonlawhelp.org/issues/family-law/contempt-of-court
Packets and forms:
Parenting Plans, Northwest Justice Project,
www.washingtonlawhelp.org/resource/parenting-plans-and-child-support-for-dissolu
Amending (Changing) Your Petition or Parenting Plan, Northwest Justice Project ,
www.washingtonlawhelp.org/resource/amending-changing-your-petition-or-parenting-plan
Filing a Petition to Change Your Parenting Plan, Residential Schedule, or Custody Order, Northwest Justice Project, www.washingtonlawhelp.org/resource/filing-a-petition-to-modifyadjust-a-parenting-1
Finalizing Your Petition to Change Parenting Plan, Northwest Justice Project,
www.washingtonlawhelp.org/resource/finishing-your-modificationadjustment-of-a-pa
Responding to a Petition to Change Your Parenting Plan, Residential Schedule, or Custody Order, Northwest Justice Project, www.washingtonlawhelp.org/resource/responding-to-a-petition-to-modifyadjust-a-pa-1
Responding to a Non-Parent Custody Petition, Northwest Justice Project,
www.washingtonlawhelp.org/resource/responding-to-a-petition-for-nonparental-cust
NOTES
1 RCW 13.34.180(1)(f), (5).
2 RCW 13.34.145(5)(b).
3 RCW 13.34.090.
4 RCW 13.34.067.
5 Id.at (4)-(5).
6 RCW 13.34.136.
7 RCW 13.34.090; In re Myricks, 85 Wn 2d 252, 253 (1975).