Washington courts will sometimes afford parental rights to individuals who are not legally related (by blood or adoption) to a child under a common law remedy known as “de facto parentage.”  The circumstances in which a person may attain “de facto” parent status are limited, and the law of de facto parentage appears to still be somewhat in flux.  In this three part series, we’ll take a look at the three cases that have shaped the law of de facto parentage thus far.

In the first part of this series, we’ll examine the first case which set out the standards for establishing de facto parental status, In re Parentage of L.B.

2005: Parentage of L.B.

The common law remedy of de facto parentage was first formulated by the Washington State Supreme Court in a 2005 case known as In re Parentage of L.B., 155 Wn.2d 679.   In L.B., a long-term lesbian couple decided to have a baby, and one of the women became pregnant via donor sperm.  The couple raised the child together for six years, until their relationship came to an end.

After the break-up, the biological mother – who was the only one of the two former partners with “legal rights” to the child under Washington law at the time -  would not permit the non-biological mother to see the child.  The non-biological mother petitioned the court for legal recognition of her relationship with the child.  The trial court denied her request, and the non-biological mother appealed.  The case made its way through the Court of Appeals (which found in favor of the non-biological mother), and on to the Supreme Court of Washington.

In its 2005 opinion, the Supreme Court adopted a four part test for determining whether an individual who does not have parental rights under Washington’s parentage statute is otherwise entitled to recognition as a “de facto” parent:

(1) the natural or legal parent consented to and fostered the parent-like relationship,

(2) the petitioner and the child lived together in the same household,

(3) the petitioner assumed obligations of parenthood without expectation of financial compensation, and

(4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature.

The above factors were intended to limit de facto parent status to “those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental roles in the child’s life.”

Although neutral to the sexual orientation of the alleged de facto parent, the L.B. factors were considered to be the prevailing authority for establishment of parental rights for a non-biological parent in a same-sex relationship.

It is important to note, however, that the legal landscape for same-sex couples in Washington has drastically changed since the Supreme Court issued its opinion in L.B.   In 2007, the first iteration of Washington’s registered domestic partnership act was signed into law.  As a result, same-sex couples who register as domestic partners are now entitled to many of the same rights as married heterosexual couples.

Most recently, Washington’s parentage statute was amended to include provisions that afford a presumption of parental rights to domestic partners in certain circumstances, including when one of the partners gives birth to a child via assisted reproduction. Things could have been a lot less complicated for L.B. and L.B.’s parents had they the option of domestic partnership enjoyed by same sex couples today.

* * *

In our next part of this series, we’ll take a look at the applicability of the de facto parent remedy to stepparents.

Colorado-based family law attorney Edra J. Pollin has posted some excellent advice bout what not to do during your divorce trial on the Huffington Post’s Divorce blog.

Several of Pollin’s tips could all be said to generally fall under “treat the court with respect” category: dress appropriately, pay attention to the proceedings, do not roll your eyes in response to testimony from your spouse, and  DO NOT use your phone in the courtroom.  Treating the court, the judge, and the other parties with respect goes a long way towards helping your establish credibility in the eyes of the judge.

For spouses in custody disputes, Pollin cautions that you should be prepared to be asked about, and to list, positive things about the other spouse’s parenting skills.  This definitely does not come naturally for a lot of estranged spouses, but as Pollin notes, “if you can’t say anything positive about your spouse to the court, you’re probably not saying anything positive about your spouse to the kids.” This is a question that you may be asked more than once during your divorce, especially if you have a parenting evaluator or GAL appointed.

Check out all of Pollin’s tips here.

If you’ve got a parenting plan from a Washington Court, you’ve probably noticed a section which designates either you or your ex “as the custodian of the children solely for purposes of all other state and federal statutes which require a designation or determination of custody.” Although the paragraph goes on to say that the designation ” shall not affect either parent’s rights and responsibilities under this parenting plan,” if you’re the “non-custodial parent” you may have taken a moment to wonder whether this means that you’ve got fewer “parental rights” than the custodial parent.

The short answer is that this paragraph – Paragraph 3.12 on almost all parenting plans – has no meaningful effect on most parent’s rights.

RCW 26.09.285, a section of Washington’s domestic relations statute, requires that all parenting plans designate the parent with whom the children live most of the time as the custodial parent for the “purposes of all other state and federal statutes” that require such a designation.  So, which other statutes are we talking about?

RCW 26.09.285 doesn’t say.  However, in a 2004 opinion, the Washington Court of Appeals, Division III noted that:

The “state and federal statutes” likely referred to in RCW 26.09.285 include the Food Stamp Program, 7 U.S.C. § 2015; the Criminal Code (Kidnapping), 18 U.S.C. § 1204; federal regulations issued on Veterans’ Benefits, 38 C.F.R. 3.24, 3.57, and 3.850; Social Security, 42 U.S.C. § 1396r-la; and Juvenile Justice and Delinquency Prevention – Missing Children, 42 U.S.C. § 5773 and § 5775.

In re Marriage of Kimpel, 122 Wn. App 729 (2004).  All of the above statutes, most of which relate to either a parent or child’s eligibility for certain state or federal benefits (such as food stamps or veteran’s pensions and other veteran’s benefits), or enforcement of laws regarding kidnapping and runaway children, make reference to a child’s “custody” or “custodian.”

Note, however, that with the exception of Paragraph 3.12, Washington parenting plans do not use the term “custody” in setting out where and with whom a child lives.  This is so because when the Washington State legislature enacted the the Parenting Act of 1987 (the act which set forth all of the requirements for the determination and format of a parenting plan), the legislature intended to eliminate the concept of “physical custody” from the determination of a child’s residential schedule.  However, because there are some other state and federal laws that continue to designate one parent as “custodian” of the child, Paragraph 3.12 makes that designation only for the purposes of those other laws.

In short, you should probably not fret if you are not designated as the custodian under Paragraph 3.12.  As the paragraph explicitly states: “this [designation] shall not affect either parent’s rights and responsibilities under this parenting plan.”  What this means it that the custodial parent under the plan has no greater or more powerful “rights” to your children than you do.

Please note that the above article should not be considered legal advice.  If you have any concerns about how RCW 26.09.285 might affect you or your child, you should seek personalized advice from an attorney.  Please also see our general disclaimer.

This is the sixth  article in our series about King County Superior Court Case Schedules.  Last week we discussed your Status Conference.  Today we’re going to talk about a number of other important deadlines on your case schedule.

Tick, tick, tick... as your trial date gets closer, you have a lot of deadlines to meet.

You’ll notice that as you get closer and closer to your trial date (the last date on your Case Schedule), there are more and more deadlines to meet.  And, those deadlines are much closer to each other in time than earlier deadlines.  The common goal of virtually all of these deadlines is to provide the parties and the court with information about what to expect from each party at trial.

  • Disclosure of Possible Primary Witnesses. If you are planning to call witnesses at your trial, you must let the other party know who you intend to call, and what you expect them to talk about.   You should include any witnesses you think you might call.  You won’t be obligated to call every witness on this list, but if you don’t disclose all your possible witnesses in advance, you risk being unable to call them at trial.
  • Change in Trial Date. Pretty simple right?  This the last date by which you can request a change in your trial date and get a new date with relative ease.  However, if this date passes and circumstances arise that make it necessary to change your trial date, you aren’t out of luck.  You can still ask the court to change it if you provide a good reason why you cannot go to trial on your scheduled trial date.  You can also agree to continue your trial with the other party.  So, what this deadline really means is that once it passes, you have to work a little harder to get a new trial date.
  • Disclosure of Possible Additional Witnesses. Another deadline for disclosure of the identities of people you might want to call as a witness at trial.  If you’ve thought of a few more people you might want to call as witnesses since you sent out your Primary Witness List, you’ll need to provide these additional names to the other side.
  • Discovery Cut off. This is one of the most important deadlines on your case schedule.  If you miss it, you lose your opportunity to gather evidence for trial.  You see, under the court rules, all parties in any lawsuit are entitled to request evidence from each other but only within a certain time frame prior to trial.  This evidence gathering process is called “discovery.”  The means by which you can gather evidence can take many forms and include submissions of written questions (or “interrogatories”), requests for production of documents, and depositions.  Each of these discovery devices has their own deadline for completion.  For example, interrogatories must be completed by the answering party within 30 days of receipt of the request.  In addition, the person sending the interrogatories must do so at a time when the response will be completed before the discovery cut off.  Failure to do this will let the other party off the hook for answering your request.  So, it’s very important that you be familiar with the Civil and Local Rules that govern discovery – in King County, you should be particularly familiar with LR 37.
Most of these deadlines are aimed at providing each party with enough time to gather and review all of the evidence prior to trial.
  • Alternative Dispute Resolution. This is the deadline by which you and the other side should attempt to resolve your case out of work by participating in some form of alternative dispute resolution, such as a settlement conference or mediation.  However, you really can reach an agreement with the other party out of court any time up to and including the day of your trial.  The court almost always favors settlement over litigation, so even if this date has passed, you and your ex can still attempt to reach agreement at any time.
  • Exchange of Witness Lists. Now that trial is getting closer, you and the other side must exchange official witness lists, so that each of you knows exactly who will testify at trial, and what each witness will testify about.  The exchange of witness lists also gives each of you the opportunity to prepare questions for every witness who will testify, including the witnesses of your opposing party.
  • Joint Confirmation of Trial Readiness. This only applies to you if your case does not involve parenting of minor children.  This is simply a deadline by which you and your ex need to provide the court with details about your trial such as how long you expect your trial to take, whether any of the parties cannot attend trial due to a scheduling conflict, and what issues will be litigated.  Note that if you do not submit this document on time, you risk dismissal of your case.
  • Joint Statement of Evidence. This is a document created and signed by both parties, which tells the court what evidence each side intends to present at trial.  This way the court knows what to expect to hear and see at trial.

This is the fifth  article in our series about King County Superior Court Case Schedules.  Last week we discussed the deadline for Hearing Motions to Change Case Assignment Area. Today we’re going to talk about the Status Conference.

Keeping your case on track can make you feel a little frusterated.

The fifth event on your Case Schedule is a written in a fairly confusing way:

Status Conference [See KCFLR 4(e)]…

If “Confirmation of Issues” and response or joinder to the petition are not filed, all parties must appear at this hearing.

So what does this mean?  What if your Confirmation of Issues, and a response or joinder have been filed?  Do you have to go into court? The answer is no: if you and your spouse have filed all necessary documents, you do not actually have to attend the Status Conference.

But, if you haven’t turned in these documents, it’s off to the court house you go – unless you get the missing paperwork filed before the date for your status conference, more on that below.

Remember when we said that a status conference is the court’s equivalent of high school detention?  Allow us to explain a bit further:

Think of the various deadlines in your case (like the deadlines for the Response to Petition, Affidavit/Return of Service, and Joint Confirmation of Issues) as the homework assigned to you by the court.  The court assigns you these tasks in order to keep your case moving along without a lot of intervention by the court.  After all, you and your spouse are in the best position to keep your case moving along, and the court wants to avoid dealing with day-to-day management of most cases whenever possible.

So long as you get your homework in on time, the court won’t be too concerned with the progress of your case.   However, if you haven’t met all the important deadlines in your case by the date for Status Conference set out in your Case Schedule, the court is going to want to have a little chat with you.


How is the Status Conference like detention?  Well, if you haven’t done your homework, you need to show up at the courthouse at 9 AM, check in with the bailiff,  and then sit in a court room with lots of other people who also haven’t done their homework.  Then you will wait, sometimes for most of the morning, until it’s your turn to talk to the commissioner or judge running the court room that day.  Once it’s your turn you only have two good options:

(1) turn in your homework – better late than never – or

(2) explain to the court why you haven’t met your deadlines.  The court will then give you another date by which you need to get your documents in, as well as a date to come back if you still haven’t met your deadlines.

Although the court assigns a date by which you need to file your missing documents, you can still file your document after that date and avoid the status conference if you make sure to file relatively close to the deadline.  However, if you file your documents very late after the deadline, or very close to the date of the status conference, you should still go to your status conference in order to let the court know that you’re now in compliance with your Case Schedule.  This makes the court’s job easier, and helps you avoid the risk of being put on the non-compliance calender, which is more serious (sort of like being sent to the principal’s office) and means your case is at risk of being dismissed.

This is the fourth article in our series about King County Superior Court Case Schedules.  Last week we discussed the Confirmation of Issues.  Today we’re discussing the fourth event on your Case Schedule, the deadline for Hearing Motions to Change Case Assignment Area.

map sea kent

Thinking back on when you filed your case, or received notice from the your ex that your divorce was filed, you may recall a document called the Case Assignment Area Form.

In King County, your case will be assigned to either the Seattle or Kent court houses depending upon whether you live in north or south King County (determined by where you live relative to Interstate 90).   The importance of the case assignment area is that you must schedule any motions you file and submit any working papers in the court house assigned to your case.  All of your hearings and your trial will be held in the court house assigned to your case.

If for some reason you later want to change your case from one court house to another, you need to file a Motion and schedule a hearing on that motion by the deadline indicated on your Case Schedule.


While this Case Event had more significance in the past, you’re likely not going to care very much about this.  Back in the good old days, if you lived in Kent, but your lawyer lived in Seattle, you might very well want to switch locations for the ease of your lawyer.  However, today, thanks to the availability of electronic filing for court documents, the newish court house in Kent, improved options for public transportation, and the ease of communication by fax, phone and e-mail, it really shouldn’t matter too much whether your case is in Seattle or Kent.

However, if the location of your case is creating difficulty for you, you better let the court know that you want to move the case, and tell them why by this deadline.

Don’t worry, spend happy?

Drowning in clutter?

A new study finds that objects don’t bring you happiness, but buying experiences actually may:

“[E]xperiential purchases, such as a meal out or theater tickets, result in increased well-being because they satisfy higher order needs, specifically the need for social connectedness and vitality — a feeling of being alive.”  According to psychology professor Ryan Howell, “Purchased experiences provide memory capital. We don’t tend to get bored of happy memories like we do with a material object.”


Compare this to Social Psychologist David Myers’ conclusion in 2004 that “Economic growth in affluent countries has provided no apparent boost to human morale.” Myers suggests that while wealth may lead to more happiness in poorer countries (let’s not “romanticize poverty”), there is very little correlation of wealth to happiness once life’s necessities are already met.

So maybe we’re just spending for the wrong things?  A 2006 study among college students found high happy marks for “social affiliation,” but “no connection with happiness” at all from passive pursuits such as video games and television.

And for those who just can’t decide if they’re happy or not, The happiness test by Susan Quillian may not have all the answers, but it is both thought provoking and mercifully brief.

This is the second article in our series about King County Superior Court Schedules.  Last week we briefly discussed what the Case Schedule is and  the role it plays in your case.  Today we’re discussing the first two events on your Case Schedule.

clock girl

Event Number 1:  Case Filed and Schedule Issued

Funnily, your case schedule will tell you that you need to file your divorce paperwork and that the date for doing so is the day you or your ex filed the Petition for Dissolution.   This is automatically entered on every case schedule, even though, of course, you’ve already met this deadline.  It just lets the parties, and the Court, know the date that the case was started, and to assist the court and parties in determining when all of the other deadlines will be set.

Event Number 2:  Affidavit (Return) of Service or Confirmation of Service.

After you file divorce, you need to let your spouse know that the action has been filed.   You do this by delivering (or “serving”) your ex with copies of all the paperwork filed to start the divorce action.  You also have to provide him or her with a copy of the Case Schedule so that he or she is aware of the deadlines and dates the court has just imposed on them.  So (although this isn’t found on the Case Schedule) you have ten days to provide your spouse with a copy of the Case Schedule after you file.

On the other hand, if your spouse files for divorce, you will be on the receiving end of a Case Schedule within 10 days of the day they submitted their paperwork.


What’s all that got to do with your Case Schedule?  Well, the next event on your Case Schedule is the deadline for filing an Affidavit (Return) of Service or Confirmation of Service.

So what are you supposed to do?  First, realize this deadline only applies to the person who actually filed the case and has the obligation to serve the other side.  If this is you,  you need to serve your ex with the opening documents as discussed above.   Then you need to let the court know that you’ve completed service.  You can meet this requirement in a couple of ways:

1.  File a document that tells the court if, when and how you served divorce papers on your spouse.  An example of such a document (called a “Return of Service”) can be found on the Washington Courts pattern site.  You can also view a blank Return of Service by clicking here.

2.  Or, if your spouse is in agreement with the requests made in your Petition, your spouse can sign and submit a Joinder.  A Joinder is a document which tells the Court that your spouse has received the Petition for Dissolution and agrees with what it says.  Note, however, that a person who has joined in a Petition, can still file a Response to the Petition at a later time, and disagree with the requests made in the Petition.  You can download a blank Joinder on the Washington Courts site, and check one out here.

So, what if you miss the deadline for proof of service?  Well, the court will be unhappy with you later, but you can solve that problem simply by filing an Affidavit, Return of, or Confirmation of Service later.  However, if you fail to do this, the court may end up dismissing your entire case.  Accordingly, it’s a good idea to just get this relatively simple chore completed by the deadline.

This is the final article in our series on what forms you need to file for temporary orders in your divorce case. Last week we went over the Proposed Order of Child Support.  Today we discuss the Washington Child Support Worksheets.



You must attach a completed Washington Child Support Worksheet to your proposed Order of Child Support.  Your completed work sheet will assist the court in determining each parent’s basic obligation for child support, and for other expenses such as uninsured medical expenses and day care expenses.

This determination is made according to Washington’s statutory child support schedule, which calculates each parent’s basic obligation for financial support based upon the parents’ combined net income and the number and age of the children for whom support is needed.

Under this schedule, each parent pays child support in an amount proportionate to how much income they contribute to the combined family income.  The non-residential parent will generally pay that child support directly to the residential parent. The residential parent’s contribution is calculated, but not actually paid to anyone – the court just assumes that this is the approximate amount that the residential parent will pay for the children’s expenses.

girls with cash register

If you or your ex- are currently unemployed, the court may still decide to impute a certain amount of income to you or your ex- if the court believes that the unemployment is voluntary.

As discussed in our articles on the Financial Declaration and Sealed Financial Source Documents, do not forget that you must provide proof of your income and bank statements to the court.


Like most of the forms discussed in this series, you can download a blank Child Support Worksheet, as well as detailed instructions on how to fill it out, on the Washington Courts pattern forms site.


Check out a word version of the Child Support Worksheet here.

Yes, you can. The rules for Fannie Mae state that if there is 12 months of payment history of the spousal support AND there is proof in the decree stating three more years of continuing spousal support from the date of closing, the spousal support may be used as income to qualify.


There can be exceptions to this as well. I have a case where the underwriting findings from Fannie Mae allowed for just THREE months of historical proof AND three years of continuance. In December 08 we had the three month historical proof prior to the decree being finalized.  By planning with our referring attorney and opposing counsel, we worked out the three years of continuing maintenance in the decree.

A consultation with a mortgage advisor can help a client determine the exact underwriting standards that they would be subject to given their credit, employment, and equity position. Many family law professionals appreciate having this knowledge prior to mediation or trial.

Example: Bob & Jane are going through a divorce. Jane will want to purchase a home after the divorce is final. Her attorney, knowing she will need three years of continuing spousal support in order for her to qualify for a home loan, negotiates three years and six months of support. The additional six months will give Jane time to qualify for a mortgage and find a home.

Guest Blogger Jeff McGinnis
Wallick & Volk

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