How to Prepare Evidence for a Washington Parenting Plan Case

When the Rules of Evidence apply

Washington’s Rules of Evidence apply to all actions and proceedings in the state’s courts except as listed in ER 1101(c) (ER 1101(a)). In a parenting plan case, the court must apply the rules of evidence and civil procedure when deciding whether a parent engaged in conduct listed in RCW 26.09.191 or 26.09.192, except where the parties have opted for an informal family law trial under state or local court rules (RCW 26.09.191(2)(c)).

• Informal family law trials. Under GR 40, with both parties’ consent and the court’s approval, the Rules of Evidence do not apply, the judicial officer decides the credibility and weight of the evidence, and each party may present up to five declarations from lay witnesses, limited to 20 pages in total (GR 40(3)(c) and (g)). See the hearings guide.
• Protection order hearings. The Rules of Evidence need not be applied in protection order proceedings under chapter 7.105 RCW, other than rules on privileges, the rape shield statute, and ER 412 (ER 1101(c)(4)); the protection order statute adds ER 413 to that list (RCW 7.105.200(8)).

Hearsay and the other parent's own words

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of what it asserts (ER 801(c)), and it is not admissible except as provided by the rules, other court rules, or statute (ER 802). A statement offered against a party that is the party’s own statement is not hearsay (ER 801(d)(2)). That is why the other parent’s own texts and emails, offered by you, are treated differently from what a friend told you the other parent said.

ER 803 lists exceptions, such as present sense impressions, excited utterances, and statements made for medical diagnosis or treatment. The slot for records of regularly conducted activity, ER 803(a)(6), is reserved in Washington’s rule, with a reference to chapter 5.45 RCW.

Authenticating messages, photos, and records

Before an exhibit comes in, there must be evidence sufficient to support a finding that it is what you claim it is (ER 901(a)). The rule gives examples, including:

• Testimony of a witness with knowledge that the item is what it is claimed to be (ER 901(b)(1)).
• Distinctive characteristics, such as appearance, contents, and internal patterns, taken with the circumstances (ER 901(b)(4)).
• For email, testimony by a person with knowledge that the email purports to be from the sender, came from an address associated with the sender, and has characteristics that, with the circumstances, support a finding that it is what you claim (ER 901(b)(10)).

Getting information from the other side

Family law cases under chapter 26.09 follow the ordinary civil practice unless the chapter says otherwise (RCW 26.09.010(1)), so the discovery rules in the Superior Court Civil Rules apply. Discovery methods include depositions, written interrogatories, requests for production of documents, physical and mental examinations, and requests for admission (CR 26(a)). Interrogatory answers are given in writing under oath, generally within 30 days after service (CR 33(a)). A subpoena under CR 45 can require a person to testify or produce documents.

For child support, tax returns for the preceding two years and current paystubs must be provided to verify income (RCW 26.19.071(2)). See the financial disclosure guide.

Guardians ad litem, investigators, and records checks

• A guardian ad litem appointed under chapter 26.12 files a report at least sixty days before trial, and the parties may file written responses that the court must consider (RCW 26.12.175(1)(b) and (c)).
• An investigator or other person appointed to report on parenting arrangements gives the report to the parties at least ten days before the hearing unless the court orders a shorter time for good cause, makes the underlying file available, and can be called for cross-examination, a right that cannot be waived before the hearing (RCW 26.09.220(3)).
• Before entering a permanent parenting plan, the court checks the judicial information system and databases for relevant information and proceedings (RCW 26.09.182).

Mediation is generally confidential

Mediation in these cases is governed by the Uniform Mediation Act, chapter 7.07 RCW, with limited exceptions. Communications in a post-decree mediation required by a parenting plan can be admitted for the limited purpose of proving abuse, neglect, abandonment, exploitation, or unlawful harassment of a child; abuse or unlawful harassment of a family or household member or intimate partner; or that a parent used or frustrated the dispute resolution process without good reason (RCW 26.09.015(3)).

Primary sources

Laws, rules and forms change. Check the current version at the source before you file.

• RCW 26.09.191(2)(c), rules of evidence apply
• ER 1101, applicability of rules
• ER 801, definitions
• ER 802, hearsay rule
• ER 803, hearsay exceptions
• ER 901, authentication and identification
• GR 40, informal family law trials
• CR 26, discovery
• CR 33, interrogatories
• CR 45, subpoena
• RCW 26.09.010, civil practice to govern
• RCW 26.09.220, investigation and report
• RCW 26.12.175, guardian ad litem
• RCW 26.09.182, judicial information check
• RCW 26.09.015, mediation proceedings
• RCW 7.105.200, protection order hearing procedure
• RCW 26.19.071, standards for income