Washington Appeals Court Affirms Parenting Plan Awarding Residential Placement to Father

Pursuant to RCW 26.09.191(5), a court in a Washington custody case may not draw presumptions from the provisions of the temporary parenting plan when it enters a permanent parenting plan.  The court must instead base the permanent residential custody on the child’s best interest as determined at trial.  The court generally must consider the factors set forth in RCW 26.09.187(3)(a), which relate to the child’s relationship with each parent, knowing and voluntary agreements between the parties, each parent’s performance of parenting functions, the child’s developmental level and emotional needs, the child’s relationship with significant people and involvement in activities and with the physical surroundings, the wishes of the parents and the child if mature enough, and each parent’s employment schedule.  A mother recently challenged a parenting plan, arguing the trial court had improperly drawn presumptions from the temporary plan and had improperly applied the factors.

According to the appeals court’s opinion, the original parenting plan in Arizona granted substantially equal parenting time.  The father had moved to Spokane by the time it was entered.

The father petitioned for modification in Spokane County, alleging the mother had moved to Virginia.  A temporary parenting plan gave him primary placement and allowed the mother visitation in Spokane. Three factors were at issue in the appeal.

The trial court found the factor on “the relative strength, nature, and stability of the child’s relationship with each parent” was neutral and that both parents had a strong bond with the child.

The factor regarding “[e]ach parent’s past and potential for future performance of parenting functions” was neutral.  The trial court had no concerns related to either party’s ability.  The court found the mother spent most evenings working on her master’s degree for about two years.  She was also deployed to Qatar in 2018. The court found the father’s work kept him from parenting from January 2019 to September 2019, with the exception of two weeks.  He also had “limited contact” with the child from November 2019 to May 2020. The mother was “largely unavailable” after moving to Virginia in September 2021.  The trial court found both parents were actively involved in the child’s education.

The court also considered the factor related to “[t]he child’s relationship with siblings and with other significant adults” and involvement with their “surroundings, school or other significant activities.” This factor weighed in favor of the father.  The court noted that the child’s only familiar surrounding was Spokane, where he went to kindergarten, had friends, and had a doctor and dentist. His paternal grandparents lived in Washington and spent at least a week per month in the father’s home.  They spent time in Arizona after the child’s birth and visited monthly until the mother prompted them to reduce their visits.  The court concluded they had been significant people in the child’s life.  The child’s Godparents also lived in Spokane, and other family lived in various cities in Washington.

The child was enrolled in martial arts in Virginia, but the court noted he had not gone to school there, nor did he have family or significant relationships there.

The court noted he had been thriving for the past nine months in Spokane. His teacher had stated he was doing well in school and had great relationships with the other students.

The court found the factors in RCW 26.09.187(3)(a) weighed slightly in the father’s favor and entered a final parenting plan placing the child in the father’s care.

The mother appealed, arguing the trial court had drawn presumptions from the temporary parenting plan.  She argued some of the persuasive facts were the result of the temporary parenting plan placing the child with the father.  The mother disagreed with the court’s findings regarding three factors.

Relationship with the Parents

The mother argued factor regard the child’s relationship with the parents weighed in her favor.

The mother argued the father’s work travel created a lack of stability in his relationship with the child, but the trial court disagreed.  The mother argued she spent more time with the child, handled his education at Montessori school, handled most of his medical needs, and was always available for parenting.  She did not, however, challenge any of the court’s fact findings.

The appeals court concluded the trial court did not abuse its discretion.  It found both parents had a strong bond with the child and could not conclude either was stronger or more stable.  The trial court noted that stability referred to the type of relationship and not the frequency of contact.  The appeals court found no abuse of discretion in the trial court’s determination this factor was neutral.

Parenting Functions

The mother also argued the trial court erred in finding the factor related to performance of parenting functions was also neutral. The mother argued there was overwhelming testimony she had provided most of the past parenting functions for the child.

The trial court found it was “not able to find whether either parent had provided a greater amount of parenting functions.” The court noted that it appeared both parents had provided different levels of parenting functions at different times.  The trial court found that the mother had spent most of her evenings between 2016 and 2018 working on her master’s degree, and that there was a six-month period when she was unavailable because she was deployed.  The father, however, was also unavailable between January 2019 to September 2019, with the exception of two weeks.  The father also had limited contact with the child between November 2019 and May 2020.  Then the mother was generally unavailable after she moved to Virginia and only saw the child during holidays, breaks, and the trial, although the court found she had more than 30 days annual leave that she could have used to visit the child.  The trial court had noted that the mother had supported the child in Montessori school, but the father had handled most of the child’s educational needs recently and had been primarily responsible for taking him to and from daycare since shortly after the child’s birth.

The trial court had no concerns about either parent’s ability.  The court found both parents were focused on the child’s “education, extracurricular activities, healthcare, and his daily needs.” The appeals court found no abuse of discretion in the trial court’s determination this factor was neutral.

Significant People and Involvement

Regarding the factor related to the child’s relationships with significant people, his physical surroundings, and activities, the mother argued that the trial court improperly made presumptions based on the temporary plan and that the court erred in concluding the factor weighed in the father’s favor.

The trial court acknowledged it could not use the temporary order to decide the case or prejudice the mother, but noted it had to consider the child’s current environment and potential environment in Virginia.  The court considered facts regarding the child’s relationships and activities and made specific findings related to the factors in support of its conclusion.

Although the child’s current environment was a “product” of the temporary plan’s residential schedule, the appeals court pointed out the trial court had not just presumed he should remain in the father’s care.  The appeals court concluded the trial court did not abuse its discretion by drawing improper presumptions from the temporary plan.

The appeals court also rejected the mother’s argument the trial court erred in applying the facts to find this factor weighed in the father’s favor.  The appeals court concluded the trial court had not abused its discretion in finding the factor weighed in the father’s favor.

The appeals court affirmed the final parenting plan.

Call Blair & Kim, PLLC

In this case, the trial court found the factors weighed in the father’s favor “by the slightest of margins.” If you are facing a custody dispute, a skilled Washington custody attorney can work with you to identify the evidence that will support your case and the relevant factors.  Call (206) 622-6562 to set up a consultation with Blair & Kim, PLLC.


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