The modification of a Washington parenting plan over the other parent’s objection can be difficult. In fact, there is a presumption against it. Washington child custody attorneys know that Washington courts have recognized that children have a strong interest in finality in their living arrangements. Courts will not disturb the residential arrangements in a parenting plan over a parent’s objection unless there has been a substantial change in circumstances, and the modification is in the child’s best interest. The court must deny a motion to modify unless it finds adequate cause to hear the motion.
A recent case explored the issue of adequate cause. The father petitioned to modify the parenting plan. He and his former wife had two children together. In the parenting plan, the mother was designated as the residential parent, and the father was given residential time with the kids on alternating weekends, winter breaks, mid-winter breaks, and spring breaks. He was also given residential time during half of the holidays.
The parents cooperated on parenting after the divorce, spending holidays together. The mother began a relationship with another man in 2012, and the father remarried.
In 2015, the father filed a declaration on behalf of the mother’s boyfriend in a dispute over residential time with the boyfriend’s daughter. The father stated the boyfriend had been a caretaker to the father’s children and had lived with them and their mother full-time for about three years. He further stated that he had not had any concerns for his kids’ wellbeing in the boyfriend’s care.
In 2016, the mother filed a notice of intent to relocate with the children. The father objected. Soon thereafter, he petitioned for a modification of the parenting plan, alleging a substantial change in circumstances. He alleged the mother’s boyfriend was displaying anger and rage and “revealing himself to be a racist.” His proposed parenting plan limited the residential time with the mother based on the boyfriend’s alleged abuse of a child and conditioned it upon the boyfriend not being present. The proposed plan would have the children residing primarily with their father, except every other weekend. It would also give him sole decision-making authority. The mother opposed the petition and moved for a temporary order to relocate. The court denied her motion.
The mother ultimately decided not to move, and the court entered an order denying her request to relocate.
The court commissioner found the father had not shown adequate cause and denied the motion to modify. The commissioner found that the evidence did not establish a substantial change in circumstances. Furthermore, it did not establish that modifying the plan would be in the best interest of the children or that the current plan caused a detriment to the children. Additionally, the evidence did not show that the advantage of modifying the plan would outweigh the harm. The father moved to revise the commissioner’s decision, but the superior court denied the motion and adopted the commissioner’s findings.
The superior court found that even if there had been expletives or racial slurs spoken in anger, it would not constitute a substantial change in circumstances or a detrimental environment for the children. The court also noted that even the father had stated the children resided with their mother 80% of the time. The children had consistency and stability in their environment. The court did not find adequate cause for a finding of a substantial change or a detrimental environment.
The father appealed, arguing the court erred in finding he had not shown adequate cause to modify the parenting plan. The appeals court noted that there “is a strong presumption against modification.” Pursuant to RCW 26.09.260, the court can only modify a parenting plan if it finds, based on facts arising since the plan or that were unknown to the court at the time, that a substantial change in circumstances has occurred, and the modification is in the child’s best interests and is necessary to serve those interests. The court can modify the plan if the child is in a detrimental environment, and the advantage of a modification outweighs the likely harm.
A party requesting a modification must submit an affidavit with the facts supporting the request. The court must find adequate cause for hearing the motion or otherwise deny it.
The father presented several examples of the boyfriend’s behavior that he alleged constituted a substantial change in circumstances. Under the statute, the court may grant a minor modification if the petitioner shows that there has been a substantial change in circumstances of the child or one of the parents, the modification does not change the child’s residence the majority of the time, and it meets one of the following criteria: is not more than 24 days in a calendar year; is due to a change of residence of the non-residential parent or an involuntary work schedule change that would make the parenting plan impractical; or does not result in more than 90 overnights per year, if the current parenting plan does not give reasonable time with the non-residential parent, and it is in the child’s best interest to increase residential time.
The father argued that the superior court had ignored evidence of the examples he provided. The appeals court found, however, that the superior court had addressed his concerns and considered his evidence. The appeals court found the parenting plan the petitioner proposed did not meet the requirements for a minor modification of the parenting plan. The appeals court affirmed the denial of the petitioner’s request to modify.
This case shows the courts’ reluctance to disturb a parenting plan without strong evidence supporting the reasons for doing so. Additionally, the longstanding cooperation and the father’s support of the boyfriend in the boyfriend’s custody case likely worked against the father here.
Our Washington child custody attorneys are experienced in divorce and custody matters. If you are involved in a custody dispute, call Blair & Kim, PLLC at (206) 622-6562 to discuss your case.
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