Washington family law includes a strong presumption in favor of continuity and against modification of a parenting plan. RCW 26.09.260. A parent seeking modification of a residential schedule must show there is adequate cause before a full hearing. In a recent case, a mother challenged a denial of adequate cause to modify the residential schedule following her move to the town where her children lived with their father.
According to the appeals court’s opinion, the mother “fled” to Alabama with her two daughters and “hid them from” their father when they separated. The father filed for divorce, was awarded custody, and ultimately brought the children back to Washington. The mother moved to Spokane.
The parenting plan from 2013 indicated the children’s primary residence was in Moses Lake with their father. The mother had the children on alternating weekends, with some additional time in the summer, plus certain holidays and school breaks.
The mother had sought modification of the parenting plan that would give her the majority of residential time twice before the current request. She withdrew her first request and the court denied the second. The mother moved to Moses Lake in 2019 and again petitioned for modification.
The mother based her request for a major modification upon allegations of abuse by the children’s paternal grandmother. She alternatively requested a minor modification increasing her residential time to nearly equal the father’s time based on her move to Moses Lake.
Following a hearing, the court commissioner entered an order denying there was adequate cause for the major modification.
The court commissioner found RCW 26.09.260(5)(b) did require the mother to show the current parenting plan was impractical due to her move to a new city. The commissioner also found the mother failed to provide any evidence supporting this requirement. The mother appealed.
The father did not challenge the mother’s characterization of the significant increase in residential time as a minor modification. He also conceded that her move constituted a substantial change in circumstances.
The mother argued that RCW 26.09.260(5)(b) did not require her to show the current schedule was impractical because of her move. She also argued that she had in fact showed impracticality.
Pursuant to RCW 26.09.260(5)(b), the court may make minor modifications to the residential schedule that do not change where the child is scheduled to reside the majority of the time when based on the non-custodial parent’s change of residence “or an involuntary change in work schedule by a parent which makes the residential schedule in the parenting plan impractical to follow.”
The issue before the court was whether the language “which makes the residential schedule in the parenting plan impractical to follow” modified the language regarding a non-residential parent’s move or only the language regarding a change in work schedule.
The appeals court considered whether the “last antecedent rule” applied to limit the impracticality requirement to a change based on a work schedule. The appeals court noted that there was no comma before the qualifying phrase to show that it was intended to apply to all of the antecedents. The appeals court further noted that the last antecedent rule is an aid to help courts interpret the intent or meaning of the statutory language, but it is not a binding rule and may be overcome. The appeals court pointed out the rule is more of a legal rule than a strict grammatical rule. Although the Washington Supreme Court has sometimes applied the rule, it has also declined to follow it in some cases.
The appeals court considered the statute as a whole when determining whether to apply the last antecedent rule. The two alternatives of a non-custodial parent’s move or a change in work schedule were placed together with the statute and the appeals court identified no reason to require impracticality for one but not the other.
The purpose of the statute is to limit the circumstances in which a parenting plan can be modified. The mother’s interpretation would allow modification any time a non-residential parent moved.
The appeals court additionally found that the legislature had left the language in question intact when it amended the statute after case law had applied the impracticality requirement to a parental move.
The appeals court found the statute requires a parent seeking a modification to show that the current residential schedule is impractical when the request is based on a change in a parent’s residence.
The mother also argued that “impractical” meant “unreasonable.” She argued that the current schedule was unreasonable because she now lived near her daughters. The appeals court looked to the dictionary definition of “impractical” and found the meaning “encompasses the ideas of incapability, hardship, and lack of success.”
The appeals court also pointed out that “impractical” qualifies “residential schedule” and not just the amount of time the parent and child has together. The appeals court found no abuse of discretion when he found the mother’s move did not make the current parenting plan impractical.
The appeals court affirmed the trial court’s denial of the mother’s motion for adequate cause to modify the parenting plan.
If you are involved in a custody dispute or considering a modification of your current custody arrangement, the knowledgeable Washington custody attorneys at Blair & Kim, PLLC, can help. Call us at (206) 622-6562 to schedule time to discuss your case.