New Rules – Relocating When You Share the Children 50/50
Under Washington case law up to this point (June 2019), relocating the children if you had a 50-50 parenting plan was very difficult.
You had to prove that there
was a substantial change of circumstances in the situation of the nonrelocating parent. See Marriage of Ruff and Worthley. That made it essentially impossible to move. A later case, Marriage of Jackson, 4 Wash.App.2d 212, 421 P.3d 477 (2018), extended that rule to cases where the parents were actually living with a 50/50 parenting plan, even if the actual written parenting plan said otherwise.
Now, that rule is changing. As of the end of July, those cases are overridden by a change to the statute. See SB 5399.
That change essentially means that in a 50-50 plan, including where the parties are actually following a 50/50 parenting schedule, even if the plan says otherwise, there is no presumption for the relocating parent. The court will still follow the same 11 factors that are in the Relocation Act, but it will decide whether or not to allow the relocation based on the “best interests of the child”.
This change does not define the “best interest of the child”, but the effect is that in 50-50 plans, there is no presumption that the change will be allowed, or disallowed. The relocating parent is going to have to prove that the change to the child’s circumstances is in the best interest of the child. That applies to 50-50 plans, even where one parent is named as the primary residential parent. 50-50 plans do not have to be exactly 50-50; this applies if one parent at least 45% of the overnights.
What does this change mean, as a practical matter?
If you want to move with the child, then you are going to have to show the court that the child’s environment is considerably better where you intend to move too. That includes the schools in the new location; what kind of living situation the child is in; what kind of relationship the child has with either parent; etc. It is a middle ground between the original law, which gave the “primary residential parent” a presumptive right to move, and the recent case law, which made it impossible to move.
Again as a practical matter, while overwriting the recent cases makes it possible to move the kids if you have a 50/50 parenting plan, it is also difficult. That’s because the cases on what “best interests of the child” mean, pretty much all say that the best interest of the child usually means keeping the status quo for the child. Which of course means not moving. See Marriage of Littlefield for a good discussion of what that means.
How you do that, or how you fight that problem, depends a lot on the facts of the case. That’s that’s where having an attorney can be critical. An attorney used to fighting relocation cases, will know what to present to the court, and how to present it. He will usually think of evidence, or tactics, that a party may not think of. And because relocation cases are much more likely to go to trial with this change, and are likely to be lengthier, it is even more important to have an attorney who is experienced at litigation, and knows how to win them.
If this is something that concerns you, give me a call.
This does not change the relocation process in King County. The person wanting to relocate must serve a Notice of Relocation, and the parent are objecting to it must file an Objection to Relocation. There is still an expedited (about 3 1/2 month) case schedule, with the trial at the end. In King County, you must still have a motion and hearing at the beginning of the case to decide whether the relocating parent stays here or gets to move. King County Family Court Services will try to mediate the relocation, although they will not normally do a parenting evaluation. If you cannot settle it, then the trial will take the place about 3 1/2 months after the objection is filed. It is a fairly quick process.
There is still no practical way to get a parenting evaluation done in King County, because there is no time to do it. Most the time parenting evaluations take 2 to 6 months to get done, and will not be done in time for trial. This does not affect the usual rule in King County that the court will not normally order a parenting evaluation.