Washington Court Denies Mother’s Motion to Relocate

A parent may think there is nothing they can do if the parent who has the child most of the time wants to relocate.  Washington family law, however, has a process for a parent to object to the relocation of a child in some circumstances.

In a recent unpublished opinion, a Washington appeals court considered whether the trial court had properly denied a mother’s request to relocate with her child.  The child, E.S., was born in August 2012.  The parents, who were not married, separated in 2015. They initially had an informal arrangement, under which E.S. primarily lived with his mother but was with his father two or three nights a week.

A parenting plan signed in 2018 established that the father would have E.S. Wednesday to Sunday every other week.  The plan could be modified by agreement of the parties and E.S. subsequently began staying with the father 5 nights of every 14.

The mother filed a notice of intent to move in November 2019. She wanted to move from Naches to Enumclaw at the first of March. She stated she wanted to move in with her significant other before their child was born, be nearer to her family and support system, and pursue better job opportunities.  The father objected.

The commissioner denied her motion for a temporary order pending trial, finding the move would be detrimental to E.S.

Trial occurred in August 2020.  In the trial court’s letter opinion, it noted there was a presumption that relocation would be allowed and that the father had to show the move’s detrimental effect outweighed its benefits considering the factors set forth in RCW 26.09.520.

The trial court’s letter opinion set out each of the factors and its related findings of fact.  The court’s order denying the mother’s motion incorporated those findings by reference.

The mother moved for reconsideration, arguing the court had not properly addressed the presumption.  The court denied the motion and the mother appealed.

On appeal, the mother argued the court had used the wrong legal standard, erred in finding the father overcame the presumption, and erred in denying her motion.

RCW 26.09.520 requires a court to consider the child’s relationship with parents, siblings, and other important people; any previous agreements; whether disruption of the child’s contact with the parent seeking relocation would be more detrimental than disruption of the child’s contact with the objecting parent; whether either parent is subject to restrictions based on willful abandonment, abuse, domestic violence, assault, or certain sexual offenses; the parties’ reasons for their position on the relocation and whether they are acting in good faith; how relocating or not would affect the child’s development considering any special needs; the quality of life, resources, and opportunities available to the parent and child at both locations; alternatives for fostering and continuing the child’s relationship with and access to the objecting parent; alternatives to relocating and the potential for the other parent to also relocate; logistics and financial impact; and how long it will take before a final decision if the party is seeking a temporary order. RCW 26.09.520 also provides that these factors are not weighted and the court should not draw any inference from their order.

The Texas Supreme Court has held that the factors act as a balancing test and therefore courts must consider all of them. Ideally, courts should enter facts on each factor, but may also make findings reflecting that they considered each. In re Marriage of Horner.

The mother argued that the court erred in considering the third factor, regarding disruption of contact, and the sixth factor regarding the impact of relocation on the child’s development. The mother argued that the court’s “findings” on these factors were actually conclusions of law.  The appeals court noted that a finding of fact is a determination of whether the evidence shows something happened or existed and a conclusion of law is a determination made using legal reasoning based on the evidence.  The appeals court found the trial court’s statements related to these two factors were findings of fact.

The mother also argued the court applied the wrong standard by not applying the presumption in addressing the child’s interest.  The appeals court pointed out that the presumption factors into the court’s decision only by placing the burden on the objecting parent to overcome it.  The court does not consider each factor with a presumption in favor of relocation.  The Texas Supreme Court in Horner said the factors act as a “balancing test” and address “important and competing interests and circumstances.” The appeals court noted that there could not be a balancing test if the factors were not considered neutrally.

The appeals court also rejected the mother’s argument that the trial court erred in focusing on the child’s interests in considering those two factors.  Horner specifically called out those factors as ones that “focus on the child’s interests.” The trial court had also acknowledged the existence of the presumption in its letter opinion.

The appeals court similarly rejected the mother’s argument the trial court abused its discretion in denying the relocation.  The appeals court noted that it has previously held that a trial court only abuses its discretion in deciding whether to allow relocation if it does not consider and balance the statutory factors. The appeals court further noted that determining whether the detrimental effects outweigh the benefits is “inherently subjective” and the appeals court may not substitute its own findings for the trial court’s if there is sufficient evidence supporting the trial court’s determination.

The appeals court also found no abuse of discretion in the trial court’s denial of the mother’s motion for reconsideration.

The appeals court affirmed the trial court’s order.

Although there is a presumption in favor of relocation, this case shows that a parent opposing the relocation may overcome that presumption. Whether you are planning to move or considering objecting to the relocation of your child, a skilled Washington custody attorney can help you through the process.  Schedule a consultation with Blair & Kim, PLLC, by calling (206) 622-6562.


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