Under Washington child custody law, there is a rebuttable presumption in favor of granting a parent’s request for relocation. To deny a relocation, the trial court must find that its detrimental effect would outweigh the benefits to the child and the parent seeking relocation. RCW 26.09.520 sets forth 11 factors to be considered by the court.
In a recent case, a mother appealed a trial court’s denial of her request to relocate and its modification naming the father as the primary residential parent. The agreed parenting plan had named the mother as the primary residential parent and allowed the father residential time on Wednesday evenings and every other weekend. The parents lived within 7.6 miles of each other.
The mother subsequently filed a Child Relocation Act petition. The husband responded by seeking primary residential placement. The trial court granted the mother a temporary relocation order, and the mother and children moved about 30 miles away from the father.
A guardian ad litem investigated the mother’s allegations that the father was abusive toward the children and found they were unsubstantiated. She also investigated whether moving the children was more or less detrimental to them than changing the primary residential parent. Based on the relevant relocation and modification factors, she recommended returning the children and designating their father as the primary residential parent.
The trial court had addressed all 11 relocation factors. The court noted the mother’s failure to encourage a positive relationship between the children and their father, her frequent moves, her failure to consider the children’s well-being when she moved, the move’s negative impact on the father’s residential time, and her lack of flexibility regarding coordinating residential time. Before ruling on the modification order, the court gave the mother a chance to move back.
The mother said she planned to move closer to the father, but it might take 90 days. The court advised it would grant the modification if the children were not back by the start of the school year. When the mother had not moved back by the time of the follow up hearing the next month, the trial court granted the father’s modification petition.
The mother appealed, arguing the trial court improperly relied on the guardian ad litem’s report, which she claimed did not address the relocation factors. The appeals court found, however, that the guardian ad litem had analyzed all 11 of the statutory factors. The appeals court further found the mother’s argument was properly characterized as a challenge to the court’s determination of the guardian ad litem’s credibility and the weight it gave that evidence.
The mother also argued the court improperly applied the relocation presumption. The appeals court found the trial court had properly applied the presumption. The court mentioned in its oral ruling that it had to determine whether the father had met the burden of rebutting the relocation presumption. The court considered the relocation factors, and he had done so.
The mother also argued that the trial court abused its discretion by denying the relocation when it had found only one of the factors weighed in the father’s favor. The appeals court noted that written findings of fact did not address each factor, so it had to look at whether substantial evidence was presented and whether the findings of fact and oral rulings showed the court considered each relevant finding. In addition to the guardian ad litem’s report that addressed each factor, 13 witnesses had testified. The court’s oral ruling addressed each factor and the relevant facts. The appeals court found substantial evidence had been presented, and the oral ruling showed the court had considered each factor. Furthermore, the appeals court found that at least four factors supported denial of relocation. The appeals court found no error in the relocation denial.
The mother also argued the modification was improper because there was not substantial evidence supporting the court’s findings of fact as to detriment to the child. The court found the mother’s argument was based on the wrong part of the statute. Her argument was focused on statutory language providing that a parenting plan cannot be modified unless the child’s current environment is detrimental to the child, and the harm of changing the environment is outweighed by the advantage to the child. RCW 26.09.260(6), however, provides that a person who objects to relocation may seek a change of primary residence without showing cause. Case law holds that the provisions referenced by the mother do not apply if the modification is made due to a relocation. Here, the father filed his petition for modification with his objection to the relocation, so the court did not have to find detriment.
The mother further argued that RCW 26.09.260(6) only applies if relocation is being “pursued,” and she was not pursuing relocation because she had agreed to move back. The appeals court disagreed because the mother here had already moved. She did not move back in accordance with the court’s denial of her relocation. The appeals court found that residential modifications under RCW 26.09.260(6) were allowed due to the unauthorized relocation. Although the mother had moved pursuant to the temporary relocation order, she did so at her own risk, since there was no final order in place and the court had not yet completed a full analysis.
This case shows that a custodial parent faces significant risk in seeking relocation, especially if they move before the court issues a permanent order. The mother in this case did not move the children across the country; she only moved about 30 miles away.
The child custody attorneys at Blair & Kim, PLLC, are experienced and knowledgeable in relocation cases. If you are facing a custody matter, call us at (206) 622-6562 or contact us online to discuss your case.
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