Right of First Refusal in Washington Family Law Matters

Child care is often a contentious issue in Washington family law cases.  A parent may object to the child care arrangements made by the other parent, not want a specific person to watch the child, or want the opportunity to take the child when the other parent is unavailable.  Sometimes, a parenting plan addresses this issue by including a right of first refusal.  The right of first refusal requires that the other parent be given the opportunity to care for the child when the parent with residential time is unavailable.  A right of first refusal is generally only used when the parents have been cooperative and shown an ability to co-parent.  As a recent case shows, the parenting plan should provide some parameters and details about how the right works.

The child in this case was born after a brief dating relationship between the mother and the father.  The mother received no assistance from the father during her pregnancy or the first 15 months of the child’s life.

When a temporary parenting plan was entered in 2009, the court-appointed guardian ad litem (GAL) noted that some of the father’s behavior was consistent with that shown by perpetrators of domestic violence.  The GAL noted there were no allegations of physical aggression toward the mother or child, but they expressed concern that the father’s behavior may have a negative effect on the child’s emotional well-being or even escalate to physical violence.

The GAL concluded that sole decision-making authority for significant decisions should go to the mother because the father had engaged in the abusive use of conflict, and the parents had difficulty communicating effectively.

The final parenting plan was entered in June 2011.  It included parental conduct restrictions pursuant to RCW 26.09.191(3), noting the father’s conduct or involvement could have an adverse effect on the child’s best interest because of abusive use of conflict and neglect and nonperformance of parenting functions during the first part of the child’s life.

A domestic violence order for protection was entered against the father in January 2012 and renewed the next year.

The father petitioned to modify the plan, claiming a substantial change in circumstances.  He alleged the mother had a mental illness and violent outbursts that were detrimental to the child’s emotional health.  A court may not modify a parenting plan unless certain standards are met.  Those standards are less stringent if the modification is minor.  The commissioner did not find adequate cause to grant the petition.  The trial court ultimately found that the father had not met the standard for a major modification to the parenting plan, but it granted a motion for revision for a minor modification.

The trial court entered a final parenting plan in March 2016, and the mother appealed, arguing an error in the inclusion of a first right of refusal.  The 2016 plan provided that if a parent was unable to care for the child during his or her regularly scheduled residential time, the other parent must be offered the right to care for the child before alternative arrangements with child care or another third party were made.

The court noted that a history of domestic violence and abusive use of conflict seemed inconsistent with the provision, unless there was something in the record that affirmatively showed the court had good reason to find the provision suitable under the circumstances.

The appeals court noted that the language was somewhat vague, suggesting that any visit with relatives during regularly scheduled residential time would be subject to the provision.  The father argued that the provision would only be triggered if the parent were unavailable to care for the child at the time, but there was no language that limited the provision in this way.

The appeals court also noted there was no time threshold triggering the provision.  It would not be practical to require an exchange if the mother were only unavailable for a couple of hours.  Although the father argued that the provision applied to both parents, the court noted that the circumstance gave the provision the potential to “significantly shift residential time to the father.”  The father was retired with a flexible schedule, while the mother worked full time.  The trial court had considered the change a minor modification, but a minor modification cannot exceed 24 full days a year.

The appeals court found there was no way to determine if the new plan qualified as a minor modification because the right of first refusal was unlimited.  Additionally, there was no meaningful discussion of the history of abusive use of conflict and domestic violence protection orders.  The appeals court found an abuse of discretion, since the record did not support the first right of refusal as a minor modification. The appeals court remanded.

The appeals court did not, however, accept the mother’s argument that parenting time exceeded the 24-day limitation for a minor modification, aside from the uncertainty of the right of first refusal.  Although the parenting plan increased the time with the child on the parent’s birthday and on certain holidays, these changes were balanced by the fact the other parent’s time was also increased when he or she had the child for his or her own birthday or the next year’s holiday.  The parenting plan provided the parents would alternate holidays on a yearly basis.  The appeals court found the mother failed to show that the net gain exceeded the limits for a minor modification.

The mother also argued there was no substantial change supporting a minor modification.  The appeals court noted that the change could apply to either a parent or the child, and the child’s increased participation in extracurricular activities was sufficient to support a minor modification.

The mother also appealed the removal of the RCW 26.09.191(3) restrictions.  The trial court noted in the 2016 plan that the restrictions did not apply, but it did not provide any information on its reasoning.  The appeals court ordered a remand because there was no information as to why the restriction was removed.

The appeals court here focused on the lack of information from the trial court.  The trial court did not provide sufficient parameters around the right of first refusal, or why it was appropriate in light of the father’s history.  Additionally, the court did not provide its reasoning for removing restrictions.  The court may reach the same conclusions on remand, but it will need to provide more detail.

If you are facing a custody or visitation issue, our Washington child visitation attorneys can help protect your rights.  Call Blair & Kim, PLLC at (206) 622-6562 or contact us online to discuss your case.

More Blog Posts:

Washington Parenting Plans and Substantial Changes in Circumstances

Issues Related to Children in Washington Divorces


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