Washington DVPO and the Relocation Presumption

Washington family law recognizes a rebuttable presumption that relocation of a child under a parenting plan will be permitted.  That presumption does not apply, however, if the parents have “substantially equal residential time.” “Substantially equal time” generally means the child spends at least 45% of their residential time with each parent pursuant to a court order. RCW 26.09.525. A father recently challenged a relocation, partly because the trial court applied the presumption by considering how the residential time changed under a Domestic Violence Protection Order (“DVPO”).

According to the appeals court’s opinion, the mother sought a DVPO against the father after seeing severe bruising on their two-year-old daughter.

The mother filed a notice of intent to move the children.  She asked that the father be evaluated for substance abuse and anger management or domestic violence and comply with the treatment recommendations. She also requested the court suspend his residential time for non-compliance.

The father moved for a temporary order to prevent the relocation.  During the hearing, the mother acknowledged moving out of King County to stay with her parents without the court’s permission.  The father asked the court to order the children be returned to King County and require the mother to live there until the relocation matter was resolved. The court concluded it could not order the mother to live in King County, but could order her not to move out of Washington with the children permanently.

DVPO Hearing

At the DVPO hearing, the commissioner found the father committed domestic violence by excessive corporal punishment and issued a one-year DVPO. The father was prohibited from overnight visits but allowed the other contact permitted by the parenting schedule.  The commissioner ordered him to either complete a domestic violence perpetrator treatment program or comply with the recommendation from a domestic violence assessment.

He appealed.

RCW 26.09.191 Limitations

At the relocation trial, the mother asked the court to impose RCW 26.09.101 findings and limitations  and order the same conditions as the DVPO. Under RCW 26.09.101, the court may impose limitations on residential time for the protection of the child under certain circumstances.

The father wanted to contest the child abuse allegations. He had a forensic pathologist who would testify about the lack of evidence of physical abuse and deficient investigations and another doctor to testify about the mother’s influence on the children’s interviews.

The mother argued res judicata barred relitigating the issue.  The trial court ruled it would accept the DVPO finding pursuant to res judicata, collateral estoppel, and “the law of the case.” It excluded the forensic pathologist’s testimony and any testimony from the other doctor regarding whether the assault occurred and how it might affect the children.

The court denied the mother’s request for RCW 26.09.191 limitations based on alleged domestic violence against her.  In its discretion, the court decided not to limit the father’s residential time pursuant to RCW 26.09.191 based on the excessive spanking incident or its finding of abusive use of conflict.


The parties disagreed on whether the court should consider the residential time in the parenting plan or the in the DVPO to determine if the relocation presumption applied.

The court concluded the presumption would apply regardless because the children spent more than 45% of their time with the mother under both. The court concluded the DVPO was a court order as defined in RCW 26.09.410 and was the “most recent order” containing a schedule. Based on the 55% of residential time the children spent with their mother under the DVPO, the trial court applied the presumption.

The court then considered the factors in RCW 26.09.520 to determine if the detrimental effects of the relocation outweighed the benefits. The court ultimately granted the mother’s request, noting the same result would have occurred if it had considered the residential time in the parenting plan or if the presumption had not applied.

The court entered a modified parenting plan, declining to impose RCW 26.09.191 limitations. The court ordered the father to comply with the DVPO and imposed the conditions contained in the DVPO. His residential time would be suspended if he failed to comply.

The father appealed the final orders and his appeals were consolidated.

Exclusion of Expert Testimony

On appeal, the father argued the trial court abused its discretion by excluding his expert testimony.  The appeals court agreed that the issues should be analyzed under collateral estoppel rather than the res judicata doctrine. Collateral estoppel requires four elements: the issues are identical; there was a judgment on the merits; the party against whom collateral estoppel is sought was a party to the prior proceeding; and application of the doctrine would not be unjust.  If there is a substantial difference in legal standards in the proceedings, the doctrine will not apply.

The father argued there was a significant difference in the procedures and purposes of the two proceedings.

The Domestic Violence Prevention Act is designed to give victims an easier and more efficient process to obtain an order of protection than applies to other types of court orders.  Modification of a parenting plan can be disruptive to children and there is generally a presumption against custody modifications. DVPO proceedings may allow hearsay evidence.  Courts must apply the “civil rules of evidence, proof, and procedure” when they impose RCW 26.09.191 limitations.

The appeals court concluded relocation was not the same issue as whether a temporary protection order should be granted. The father had the right to contest the alleged excessive spanking incident if the court was going to consider it.  The trial court abused its discretion by excluding the father’s evidence regarding that incident.

Furthermore, the court did not just modify the “residential aspects” of the parenting plan, but imposed limitations on the father’s residential time based on completion of conditions imposed because of the DVPO.

The appeals court reversed the parenting plan order, but let the residential schedule stay in effect until the trial court enters a new parenting plan.

Relocation Factors

The father also argued the trial court analyzed the relocation factors incorrectly. The factors are used to determine if the harm of relocation outweighs the benefits.  The father argued the court did not have the statutory authority to consider new RCW 26.09.191 restrictions when considering whether to allow relocation. One factor is whether a parent “is subject to” RCW 26.09.191 limitations.  The father argued this language applies only to limitations already in place, not those to be added.  The appeals court, however, rejected this argument.

The appeals court noted it was not improper for the trial court to consider the spanking incident, but it was improper for it to exclude the father’s evidence.  The trial court had not, however, based its determination regarding relocation on the spanking incident.  The court determined “it would not be in the children’s best interests to apply the limitations of subsection [RCW 26.09.191](a).” The appeals court concluded there was no abuse of discretion in the trial court’s consideration of the RCW 26.09.191 limitation.

The father also argued the trial court did not properly analyze the factor comparing the two locations. It compared the proposed residence to the mother’s parents’ home.  The father argued the court should have compared the proposed location to the children’s previous residence, because the mother had moved them without the authority of the court.  The statute requires the court to compare the “current and proposed geographic locations.” The appeals court found no abuse of discretion in the court’s analysis of this factor.

Relocation Presumption

The father also argued the trial court erred in applying the relocation presumption because the DVPO was not an “order” under RCW 26.09.410(1).

The appeals court held that a “court order” under RCW 26.09.525(2)(b) cannot be a type of order not included in the definition in RCW 26.09.410(1).  The definition of “court order” is “a temporary or permanent parenting plan, custody order, visitation order, or other order governing the residence of a child under this title.” A DVPO does not govern the child’s residence.  Although the trial court erred, the error was harmless because the presumption would also apply under the parenting plan.

The appeals court affirmed the relocation order, because the court’s error in excluding the father’s expert witness did not affect the court’s determination.  The appeals court reversed the parenting plan because the trial court had abused its discretion by not limiting its modifications to those related to the relocation.

Seek Legal Advice

This case illustrates the intersection of civil protection orders and family law. Blair & Kim, PLLC, is experienced in civil protection orders, family law, and criminal defense.  If you are dealing with child abuse allegations or seeking or opposing a protection order against your child’s other parent, our experienced Washington family law attorneys can help you fight to protect your children.  Call us at (206) 622-6562 for a consultation.


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