Seattle Attorneys Blog
Often, after a divorce or break-up, one parent may wish to relocate. Relocation of a child under a Washington custody order is governed by the child relocation act (“CRA”). A parent with shared custody must notify the other parent when they wish to relocate. If the other parent objects, the court must hold a hearing. The CRA presumes that relocation will be permitted, but that presumption may be rebutted if the detrimental effect of relocation outweighs its benefit to the child and the relocating parent, based upon statutory factors. Those factors include: the child’s relationships with their parents, siblings, and other significant individuals; prior agreements between the parents; whether there are restrictions on either parent’s residential time; the child’s age, development, and needs and how relocation would affect the child’s development; the resources, quality of life, and opportunities available to the child and parent at both locations; and financial impact. RCW 56.09.520. The presumption does not apply, however, if the parents share substantially equal residential time with the child. RCW 26.09.525. When the presumption does not apply, the court must determine the child’s best interest by considering the statutory factors set forth in RCW 56.09.520.
In a recent case, a mother appealed a court order denying relocation, arguing the trial court improperly determined each parent’s residential time based on the totality of the parenting plan instead of basing it on the phase of the graduated residential schedule that was in effect at the time she filed her motion. According to the appeals court, the parties had one child during their marriage and divorced when the child was two.
The permanent parenting plan made the mother the primary residential parent and gave the father a graduated residential schedule. He would have residential time with the child three nights each two weeks, increasing to four after three months, and then increasing to six when the child turned three. The parents would have equal residential time when the child started kindergarten.
The mother filed a “Notice of Intent to Move with Children (Relocation)” in April 2020, stating she intended to move with her fiancée to Virgina, where the fiancée had family and other children. The notice stated Virginia offered a lower cost of living and better job opportunities. The notice included a proposed parenting plan pursuant to which the child would live with her most of the year and summers and spend certain holidays with the father.
The father argued relocation was not in the child’s best interest because of the child’s strong family relationships in Washington, the stability of the current schedule, and the mother’s alleged bad faith reasons for moving.
The trial court prohibited the mother from moving to Virgina with the child while the trial was pending. The court also appointed a guardian ad litem (“GAL”). The GAL recommended denial of the relocation and that the parties have a 50-50 residential schedule. In her response to the father’s objection, the mother argued the parties did not have substantially equal residential time because the child was with the father less than 45% of the time at the current phase of the parenting plan.
The trial court issued an oral ruling following a trial. The court calculated the father’s residential time as 46.9%, and concluded the parents had substantially equal residential time. The mother was therefore not entitled to a rebuttable presumption in favor of relocation. The court considered the statutory factors and concluded relocation was not in the child’s best interest and denied the mother’s motion.
In its findings, the court state it had considered RCW 26.09.525 to determine if the mother was entitled to the relocation presumption. The court also stated it computed overnights based on the totality of the 2020 Parenting Plan. The court found the child will spend 46.9% of time with the father over the course of the plan. The court found the parents had substantially equal residential time, meaning it provided the father more than 45% of the parenting time. The court further found the parties had not yet reached Phase 4 of the parenting plan at the time of trial. Phase 4 is a 50/50 schedule that would begin in August 2023 and was expected to continue until the child’s 18th birthday. The court found, based on its calculation, that the parties would have equal residential time for approximately 13 years.
On appeal, the mother argued she was entitled to the relocation presumption because the parents did not have substantially equal residential time. She argued the court should have only considered the current phase of the parenting plan to calculate residential time.
RCW 26.09.525 provides that “substantially equal residential time” includes schedules where the child spends at least 45% of their residential time with each parent. The court must “base its determination on the amount of time designated in the court order.” RCW 26.09.535.
The appeals court acknowledged the presumption would apply if the residential time was calculated based only on Phase 3 of the parenting plan. The appeals court determined, however, that the mother’s interpretation conflicted with the statute’s plain language that required the calculation to be based “on the amount of time designated in the court order.” Furthermore, the definition of “court order” under CRA includes “a temporary or permanent parenting plan” and not, the appeals court explained, the specific phase in place at the time a parent seeks relocation. The appeals court determined the statutory language plainly and unambiguously instructed courts to calculate residential time based on a temporary or permanent parenting plan.
The mother that the trial court’s calculation assumed the parties would continue to follow the parenting plan’s residential schedule without modifying it or deviating from it until the child’s 18th birthday. The appeals court rejected this argument, noting the potential for a parenting plan to be modified in the future did not render a calculation of residential time based on the current parenting plan “flawed.”
The appeals court found no error in the court’s calculation of residential time based on the 2020 parenting plan.
The mother argued the court’s decision conflicted with the purpose of the presumption. The court rejected this argument, noting it was inapplicable when the court had found the parties had substantially equal residential time and the presumption did not apply.
The appeals court pointed out that the analysis for determining whether to grant a motion for relocation is different from other decisions involving children because it considers the best interests of not only the child, but also the relocating parent. The appeals court pointed out there is a presumption a fit child acts in their child’s best interest, but when both parents share substantially equal residential time, they are both presumed to act in the best interest of the child. The relocation presumption therefore does not apply when the parents share substantially equal residential time and the court must focus on the child’s best interest.
The appeals court found no abuse of discretion in the court’s denial of the mother’s motion to relocate and affirmed the trial court’s decision.
There can be significant conflict when one parent wants to relocate with the child. Whether you are seeking or opposing relocation, an experienced Washington child custody attorney can advise you on your rights and option. Set up a consultation with Blair & Kim, PLLC, by calling (206) 622-6562.