Washington LawHelp

Washington Parenting Law for Unmarried Couples Who Are Separating

Authored By: Northwest Justice Project LSC Funded

3912EN - This publication gives basic information about Washington State law that applies to parenting when unmarried couples separate. The following questions and answers give an overview of some common issues.

Contents
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1. What is this about?

This publication explains Washington State law on common parenting issues unmarried couples with children face when they break up. Another publication, www.washingtonlawhelp.org, Washington Property Law for Unmarried Parents Who are Separating, explains state law on property law issues these couples can face.  

*This information is not a substitute for individual legal advice. It will not tell you how a court might apply the law in your own case.  Talk to a lawyer for that. 

The law in this area is still developing.  It can be hard to figure out what your rights are and what to do.  Even if you cannot afford to pay a lawyer to represent you for the entire case, one may agree to do part of it. Or you might be able to get a consultation through a legal clinic. 

*If you have more questions and you are low-income and live outside of King County, call CLEAR at 1-888-201-1014. If you live in King County, contact the King County Bar Association's Neighborhood Legal Clinics, (206) 267-7070, 9 a.m. to 12 noon Monday – Thursday, for a free half-hour of legal advice. 

Do not use this publication if you conceived your child through "assistive reproduction."  This includes:

  • artificial insemination

  • donation of eggs and/or embryo

  • in vitro fertilization

  • sperm donation

If this describes you, get advice from a lawyer. 

2: Does Washington State have common law marriage?

No. You must have a marriage license (RCW 26.04.140)and a valid marriage ceremony (RCW 26.04.070).  Washington recognizes common law marriages from another state if that state authorizes them.

*RCW stands for Revised Code of Washington, the state's laws.

3: What if we were in a registered domestic partnership?

You have the same rights and obligations towards the children as if you were married. State laws on custody and visitation and the Uniform Parentage Act apply to domestic partners the same as to married couples.  Our publication called Ending Your Marriage or Domestic Partnership in Washington with Children: The Basics, available at www.washingtonlawhelp.org, has more info.

4. What if we never married or registered our domestic partnership and have children together?

Motherhood is typically established by giving birth to a child or adopting a child. RCW 26.26.101(1).

Fatherhood is most commonly established by one of these:

  • court action (typically a parentage case)

  • being married to or in a registered domestic partnership with the mother at or soon after the child's birth

  • adoption

  • acknowledgment (filing a Paternity Acknowledgment/Paternity Affidavit/acknowledgment)

RCW 26.26.101(2).

*Neither parent has a greater legal right to have the child live with him/her until the court enters an order.

5. How do I establish paternity (fatherhood) by acknowledgment?   

Both parents must sign a paternity affidavit or paternity acknowledgment. Signing the affidavit/acknowledgment is swearing under penalty of perjury that the person the form names the father is the only possible father.

Hospital staff usually gives an unmarried mother a paternity affidavit/acknowledgment form in the hospital after the child's birth.  The parents often sign it before the child goes home for the first time. You can also sign it later.

A paternity affidavit/acknowledgment is not a court order. Filing it with the Washington State Department of Health on or after July 1, 1997 gives it the same legal effect as a court order establishing the person named as the child's legal parent. RCW 26.26.320. A paternity affidavit/acknowledgment is legally binding even if anyone who signed it is a minor (under age 18). RCW 26.26.315(4).

*A minor can rescind (take back) his/her signature on a paternity affidavit up to the age of 19. RCW 26.26.330.

If a paternity affidavit/acknowledgment names you as the father, you have all of a parent's legal rights and responsibilities, including the right to get a parenting plan and the responsibility to provide financial support for the child.

*"Parenting plan" in this publication refers to a parenting plan OR a residential schedule.

A paternity affidavit/acknowledgment alone does not establish a parenting plan or child support. Once a paternity affidavit/acknowledgment is filed, either parent (or, if the children get public assistance, the State) may ask for child support through Superior Court OR the Division of Child Support's administrative process.

*"Public assistance" in this publication means TANF and/or medical assistance (Apple Health). It does NOT mean food stamps or day care assistance.

Either parent may also file a court action to enter a parenting plan. Our packet, Filing a Petition for Parenting Plan (Custody) or Child Support when Parentage has been Established, available at www.washingtonlawhelp.org, has forms and instructions.

6. How do I establish parentage by court order?

One party or the State of Washington files a parentage petition in Superior Court asking the court

  • To establish legally who the child's parents are.

  • Usually, to approve a parenting plan and/or set child support. (See the explanations of these terms below.) 

Our publication called Parentage and Parenting Plans for Unmarried Parents in Washington,available at www.washingtonlawhelp.org, has more information.

7. Can I get help establishing parentage and collecting child support?

Maybe. The State of Washington Division of Child Support (DCS) may file a Parentage action or establish an administrative child support order if

  • you ask for services OR

  • the child gets welfare benefits

If you do not have a paternity affidavit/acknowledgment, or your affidavit/acknowledgment was signed before July 1, 1997, you may ask the State to file a parentage case on your child's behalf. The prosecutor does not represent either parent. S/he will file the case and help keep it moving through the court system. Read more about this in the publication Parentage and Parenting Plans for Unmarried Parents in Washington.

If you simply want to establish a duty to pay child support, the DCS may initiate an administrative procedure. Where paternity has been established by affidavit/acknowledgment, DCS will often get an administrative child support order. They will not establish a parenting plan. Our publications called How Can I Collect Child Support?and Parentage and Parenting Plans for Unmarried Parents in Washington, available at www.washingtonlawhelp.org, have more information.

An administrative child support order is valid until a court order changes or replaces it.  Court orders usually do not cancel amounts already due under administrative support orders.

8. How do I get custody, visitation, or child support?

*Washington law does not use the terms "custody" or "visitation."  The law calls court orders between parents "parenting plans" or "residential schedules."

Either parent can file a petition/request asking the court to enter a Parenting Plan Schedule and set child support.  A court-ordered parenting plan orders:

  • Custody and a visitation schedule

  • The division of major, non-emergency decisions about the child

  • How the parents will work out major disagreements

*A court-ordered residential schedule covers items in the first point above only.

The last page of this publication lists other self-help packets with forms and instructions for your use.

9. Do I have to go to court to get a parenting plan?

Yes. A parenting plan must come out of a court case. For unmarried parents or parents not in a registered domestic partnership, the court case is usually a parentage action or an action to establish a parenting plan.

If the parents agree through mediation or negotiation on a proposed Parenting Plan, the court will usually approve it. If they do not agree, the court will enter a Parenting Plan after a hearing or trial. The court will look at many things, the most important being the child's best interests.

*The end of this publication lists resources with more information about the laws on parenting plans.

10. I am not a biological or adoptive parent. I did help raise the child. Can I get custody/visitation?

The law on this issue is developing. It could change quickly.  At the time we last updated this publication, if you are not a biological or adoptive parent, you may still be able to petition the court for parental rights and duties with that child if you can prove you are the child's "de facto" parent." You would need to prove all these:

  • you have an actual "parent-like" relationship with the child

  • the relationship was formed with a biological or adoptive parent's consent and encouragement

  • you lived with the child in the same household

  • you took on the responsibilities of parenting without expecting payment

  • you acted as a parent long enough to have developed a bonded, dependent, parent-like relationship with the child

  • you have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life

11. I am not a biological or adoptive parent. I do not think I meet the standards for a de facto parent. Can I ask for custody as a nonparent?

If a parent objects, you must file a case in superior court under RCW Chapter 26.10. Generally speaking, a nonparent can get custody only if

  • the child is not in a parent's physical custody; OR

  • you prove the parents are unfit; OR

  • you prove that living with an otherwise fit parent would detrimentally affect the child's growth and development AND you are fit.

Our publication Nonparent Custody of a Child: Frequently Asked Questions and Answershas more information.

12. I am a nonparent. Can I have visitation?

At this time, non-parents do not have the right to ask for court-ordered visitation over the objection of a fit parent.

13. Where do I file a court case for parentage, a parenting plan, or child support?

You can file in the county where the child lives.  RCW 26.26.520, RCW 26.10.030. If the child does not live in Washington now, you may file a parentage action in the county where the other parent lives.  RCW 26.26.520.

If another state has entered an order about custody, or the child does not live in Washington now or has not lived here very long, you may not be able to file for custody here. Talk with a lawyer or read our publication called Parentage and Parenting Plans for Unmarried Parents in Washington.

14. Can I file in Small Claims Court?

No.

15. Can I bring up property and debt issues and issues relating to children in one case?

The law on this is not clear.  Some counties do not permit it.  Try to talk to a lawyer in your community to find out about local procedures.

16. What if I have an emergency?

If you are a domestic violence victim, you may be able to get a Domestic Violence Protection Order that has emergency protection.  See the list of domestic violence-related publications at www.washingonlawhelp.org.

*If you are currently a victim of domestic violence, get help from your local domestic violence shelter. Shelters provide services such as safety planning, temporary shelter, legal advocacy, and counseling. To find the program nearest you, call: Domestic Violence Hotline 1-800-562-6025.

If you file a lawsuit concerning the children, the court may be able to enter temporary or restraining orders.  See www.washingtonlawhelp.org's self-help publications on temporary and immediate restraining orders.

17. Are there alternatives to a lawsuit?

It depends. You can sometimes establish parentage and child support without filing a lawsuit. But only a court can create a binding parenting plan.

Sometimes during the court process, the parents will negotiate a settlement they can reduce to a court order for the judge to sign. This is often easier, quicker, less stressful, and cheaper than going to trial.

If you are a nonparent, and the parent(s) agree you will have custody, you can get either a court order under RCW 26.10 or a court-ordered guardianship.  You can also use a "temporary parental consent agreement" in short-term, agreed situations.  If you are low-income and interested in the temporary parental consent agreement, call CLEAR.

  • A parent may revoke (cancel) a temporary parental consent agreement at any time.

  • Schools, medical care providers and others may not accept a temporary parental consent agreement. 

A Temporary Parental Consent Agreement is not a lasting alternative to a court order. Nonparent Custody of a Child: Frequently Asked Questions and Answers has more information.

18. Are there forms and instructions I can use?

If you decide to represent yourself in court on issues regarding your children, these might help:

These packets and other self-help law materials are available at www.washingtonlawhelp.org.

19. Should I talk with a lawyer?

Yes. Even if you cannot afford to hire one for full representation, an experienced family law attorney will sometimes take on part of the case, called "unbundled services," or will give limited advice in a consultation at a family law clinic.  A lawyer can

  • explain local procedures

  • evaluate your case

  • identify the claims you might make and your rights and responsibilities

  • advise you how to take practical steps

20. What if I need legal help?

Apply online with CLEAR*Onlinehttps://nwjustice.org/get-legal-help 
or
Call CLEAR at 1-888-201-1014

CLEAR is Washington's toll-free, centralized intake, advice and referral service for low-income people seeking free legal assistance with civil legal problems. 

  • Outside King County: Call 1-888-201-1014 weekdays from 9:15 a.m. until 12:15 p.m. 

  • King County: Call 211 for information and referral to an appropriate legal services provider Monday through Friday from 8:00 am – 6:00 pm. You may also call (206) 461-3200, or the toll-free number, 1-877-211-WASH (9274). You can also get information on legal service providers in King County through 211's website at www.resourcehouse.com/win211/.

  • Persons 60 and Over: Persons 60 or over may call CLEAR*Sr at 1-888-387-7111, regardless of income.

Deaf, hard of hearing or speech impaired callers can call CLEAR or 211 using the relay service of their choice.

211 and CLEAR will conference in interpreters when needed at no cost to callers. 

Free legal education publications, videos and self-help packets covering many legal issues are available at www.washingtonlawhelp.org

 

The Northwest Justice Project would like to thank attorney Ron Steingold for his generous assistance in creating this publication.

3912EN

This publication provides general information concerning your rights and responsibilities. It is not intended as a substitute for specific legal advice.
This information is current as of December 2016.

© 2016 Northwest Justice Project. 1-888-201-1014
(Permission for copying and distribution granted to the Alliance for Equal Justice and individuals for non-commercial use only.)

Last Review and Update: Dec 29, 2016
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