Custody issues can get complicated when one parent wants to move. There is a presumption that relocation by the custodial parent will be permitted, but the non-custodial parent has the right to object. Things are not so straightforward, however, when the parents share custody equally.
A father recently appealed a court’s denial of relocation where the parents shared custody. The couple divorced in 2012. The child resided with the mother the majority of the time until 2016. In 2016, the court approved an agreed-upon parenting plan that split residential time equally on a 50/50 basis. The designated both parents as having “equal rights and responsibilities…”
The plan also provided that either parent who planned to move would give notice to anyone entitled to court ordered time with the child. The father filed a notice in April, 2017, stating his intent to move with the child. His current wife was entering a five-year residency in emergency medicine and pediatrics in Baltimore, and he planned to join her there.
The mother filed an objection. The trial court found that the Child Relocation Act (CRA) did not apply. The court also found there was not adequate cause to hold a modification hearing. It dismissed the petition and the objection because they were made pursuant to CRA, which did not apply. The court again denied the father’s petition on reconsideration. The father appealed.
Under the CRA, a parent with whom the child resides the majority of the time pursuant to a parenting plan must notify anyone entitled to visitation or residential time with the child. Relocations are presumptively permitted. The court must allow the relocation unless someone objects within 30 days.
The CRA provides, however, that neither parent qualifies as “a person with whom the child resides a majority of the time” when there is a 50/50. Therefore, neither parent is entitled to the presumption that a relocation is permitted. The appeals court found the trial court did not err in dismissing the petition for relocation.
The father also argued the court erred in refusing to consider the child’s best interests. The appeals court noted, however, the court does not have to consider the best interests of the child at the adequate cause hearing. The trial court had found the father had not shown adequate cause because he had based his petition on the CRA rather than the applicable Washington statutes. The father needed to submit affidavits to show adequate cause for a modification hearing. Adequate cause is a procedural requirement, and the child’s best interests are not considered until adequate cause is established. The appeals court found no abuse of discretion in the trial court’s decision not to hold a modification hearing.
The appeals court also rejected the father’s argument that the relocation was merely a minor modification that did not require a hearing. The appeals court noted, however, that a minor modification cannot change the residence where the child is scheduled to reside the majority of the time. Under the 50/50 parenting plan, the son did not live anywhere “the majority of the time,” but if he relocated with his father, he would be residing with his father the majority of the time. It would, therefore, not qualify as a minor modification.
The father argued the parenting plan incorporated the CRA by agreement, even though it did not otherwise apply. The appeals court looked at the language in the parenting plan. It did require a party planning to move to give notice, but did not include language regarding the other provisions of the CRA. The parenting plan did not address whether the presumption applies and the plain language of the CRA suggests they would not.
Additionally, the CRA relocation factors set forth in RCW26.09.520 do not all fit into a 50/50 parenting plan. The appeals court noted a court would have to alter or ignore two factors. One of the factors requires the court to consider whether disrupting the child’s contact with the person with whom he resides a majority of the time is more detrimental than disrupting the contact with the objecting person. Another factor considers the quality of life, resources, and opportunities available in the current and proposed locations for the child and the relocating party. It does not consider the other parent’s circumstances, which the appeals court found “makes little sense” in a 50/50 parenting plan.
The appeals court also found that parents cannot alter the CRA protections for the child by agreement, but can alter protections for the parents. The appeals court considered whether the CRA relocation factors provided the same protections to the child as the statutes that would otherwise apply. The other statute’s primary focus is the child’s best interests. RCW 26.09.187. Additionally, the factors are weighted differently in the two statutes. The CRA statute’s factors are not weighted, but the other statute gives the greatest weight to “[t]he relative strength, nature, and stability of the child’s relationship with each parent.” The appeals court found placing the greatest weight on this factor protected the child’s interest in stability. The appeals court therefore found that the parents could not agree to change the criteria.
The appeals court affirmed.
If you are facing a divorce or custody issue, the Washington family law attorneys at Blair & Kim, PLLC, can help you. Call us at (206) 622-6562 to schedule an appointment to discuss your case.
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