Relocating The Children

50-50 Plan Relocation

Relocating The Children

Relocation In Washington Is Different For a 50/50 Plan and a non-50/50 Plan.

Relocation of children,  in Washington law, is controlled by RCW 26.09.405. IF THERE IS A PRIMARY RESIDENTIAL PARENT (MORE THAN55% OF THE OVERNIGHTS), then the primary residential (custodial) parent has a presumptive right to move with the children.  The non-custodial parent can object to the move. If they do, the courts use eleven different factors to decide whether or not the children get to go. RCW 26.090.520. The factors are not weighted; that is, each factor carries the same weight as the others. In relocation cases the trial court must consider each of the factors in RCW 26.09.520 and document its findings in the findings of fact or, failing that, the record must reflect that substantial evidence was entered on each factor and the court’s oral ruling must reflect that the court considered each factor. In re Marriage of Kim, 179 Wn. App. 232, 240-41 (2013). The Relocation Act applies to all children where there is an order of some kind in place.

BUT the presumption that the primary residential parent will be able to move is very strong. I won on this, two years ago, when my client wanted to move to Australia, with the children, to be with her fiancé. I won at trial, and she moved. The father appealed the case; the appellate court ruled that the father did not rebut the presumption and she got to stay in Australia, with the children. The appellate ruling (Rostrom v. Rostrom) is here. Another recent case I tried, and won, and then won the appeal, is McNaught v. McNaught.

IF THERE IS A  50/50 PARENTING PLAN (WHERE THE OVERNIGHTS ARE 45/55 TO 50/50):

As of July 2019, the statute has changed. The new statute is RCW 26.09.525. 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”. See RCW 26.09.520.

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.

What’s the Process? 

The process is simple, but needs to be followed correctly. If you are moving, you have to give the other side 60 days notice, if you possibly can. The notice is here. The notice does not have to be filed with the court, initially. The other side has 30 days to file an objection with the court.  The Objection is here. The court clerk sets a trial date: typically 3-4 months out. That’s because – since relocation cases affect where children go to school, where parents can work, etc. – the cases take priority. But it is very, very important to do this correctly. Failure to do it correctly, when you are trying to do a relocation in Washington,  can result in a motion to make a parent – or the children – move back from wherever they just moved to. Send the notice in a timely fashion; send it certified mail. If you are objecting, file the objection with the court on time, within 30 days – and file a motion to make the parent stay here.

What Are My Chances? My experience has taught me several things:

  • Arguing about school districts is a waste of time. I rarely see the courts restrict the custodial parent from moving a school district or two away.
  • Relocating with a 50/50 parenting plan (or something close to it), is very very hard. To move then, required more than the 11 factors listed in the CRA. You have to show a substantial change in circumstances in the non-moving parent’s situation. The recent case is Marriage of Ruff and Worthley, 198 Wash.App. 419, 393 P.3d 859 (2017).
  • But that is changing. The Legislature passed, and the governor signed, changes to the relocation act which essentially say that in a 50/50 parenting plan, the relocating parent has a presumptive right to move. The nonrelocating parent can rebut that by using the 11 factors in the CRA. That is in effect as of the end of July 2019. That means any relocation case starting now, will be covered by the new amended statute. It is important to call me, to get a decent analysis of what that means to the case.
  • If this is an initial fight – that is, if this is a divorce or an initial parentage case – there is really only one way to ensure the other parent cannot move the children: get a 50/50 parenting plan, and build in language stating both parents agree not to move.
  • The reasons a parent is moving count a lot. If Mom has primary custody, and she wants to move to Florida, to move in with the boyfriend she met on the Internet last week, the court is likely to make the kids stay here.  If Mom has remarried, to someone in the Navy, and they are PCS’ing to San Diego, the kids are gonna go.
  • Courts will do something different at the beginning than at the end. If the question is close, the chances are good that the court may make Mom stay here until trial; and at least that buys you time.
  • The kids get a say. They don’t get a formal voice. You will never be able to bring the children to court. But they can talk to a parenting evaluator; and if they are over, say, 11 or 12, and they want to move with Mom (or stay here with Dad), the court is likely to do what they want. The problem is that King County does not appoint a parenting evaluator in relocation cases. That makes it very difficult to get what the kids want in. But you have to have to try getting a parenting evaluator appointed anyway.
  • Relocation Cases Are Expensive.  Sending out a Notice of Relocation is cheap. Fighting – for either side – is expensive. The average relocation case, through the first month, will cost $3,500-5,000 or so. Taking a case through trial is a lot more expensive. It simply requires a lot of work. And you really, really want an attorney to handle it.

FAQ: RELOCATION CASES

  •  How Much Does Language In The Parenting Plan Matter?  As it turns out, a lot. The primary custodial parent presumption in the statute is a powerful one. Read Marriage of Fahey, a 2011 Supreme Court case. There – despite the fact that the parties were doing almost a 50/50 split in practice – the court held that the designation of the mother as the “Primary Residential Parent” in the Parenting Plan gave her an edge in the father’s attempt to keep the kids from moving.
  • Suppose We Have a 50/50 Parenting Plan? Then, IMHO, it is essentially impossible to move the children, unless they are older (teenagers) and really want to move as well.
  • How Much Does It Cost to Fight?  In King or Snohomish County, you can plan on spending on me, between $3,000 and $5,000 in the first month, if you are fighting a relocation in Washington. That is true both for the moving party and the non-moving party. But fighting has two effects: sometimes you win; but sometimes, even if you look like you might lose in the end, at trial, the other side will abandon their attempt, and stay here.

Case Law:

  • In relocation cases the trial court must consider each of the factors in RCW 26.09.520 and document its findings in the findings of fact or, failing that, the record must reflect that substantial evidence was entered on each factor and the court’s oral ruling must reflect that the court considered each factor. Bay v. Jensen, 147 Wn. App. 641, 654-56, 196 P.3d 753 (2008); In re Marriage of Horner, 151 Wn.2d 884, 894, 93 P.3d 124 (2004).
  • The Child Relocation Act does not apply a “best interest of the child” standard; instead, it applies 11 specific factors for the court to consider. [NOTE: These cases implicitly overrule the prior relocation decisions of In re Parentage of R.F.R., 122 Wn. App. 324, 328, 93 P.3d 951 (2004) and In re Marriage of Grigsby, 112 Wn. App. 1, 7, 57 P.3d 1166 (2002), which stated in dicta “The Relocation Act of 2000…gives courts the authority to allow or disallow relocation based on the best interests of the child.” (Grigsby) In re Marriage of Momb, 132 Wn. App. 70, 79, 130 P.3d 406 (2006); In re Marriage of Horner, 151 Wn.2d 884, 895, 93 P.3d 124 (2004)
  • The legislative intent of the Child Relocation Act is that under 50/50 parenting plans “the notice requirements apply to both parties and the presumption to neither.” This was stated by the bill’s primary sponsor, Rep. Dow Constantine, in a colloquy with Representative Mike Carrell. (For admissibility of legislative history, see Statutory Construction, below.) 1 House Journal 56th Leg., Reg. Sess., at 551 (Wash. 2000)
  • BUT it is always, always driven by the facts.