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 quite strong. I won on this, 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.

The practical effect of the new statute is that it is very difficult to move the children out of the immediate area, if there is a 50-50 parenting plan. Unless there is something very unusual going on (Such as one parent simply abandoning the children), a court will most likely find it is best for the children to stay right where they are, with their friends, in the same school, with the same extended family, with the same extracurricular activities that they are used to doing, etc. The fact that it is the mom or the dad that wants to move, makes no difference. The fact that the moving parent  is getting a better job; or will have a better house; or is moving in with their girlfriend in Texas; makes little difference. That is because the courts will assume that if this is a 50/50 parenting plan, and the children are doing okay in school, then both parents are likely involved in getting the homework done, and being good role models, in making sure the kids have play dates, etc. But the end result is that most of the time a court will order that the kids stay where they are.

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.
  • The less time a parent has in a parenting plan, the more likely it is the relocating parent will be able to move. That is not a statutory factor: the courts do not make relocation decisions based on the overnight camp. But the last time a parent has, the less the child is involved with that parent; the less that parent does the homework; the chances are greater the children’s friends will be with the relocating parent; the chances are if there is extended family, the extended family will see the child less if a parent has less time. So the amount of time a child spends with a parent, affects all the other factors.
  • Relocating with a 50/50 parenting plan (or close to it), is very very hard.
  • RCW 26.09.525, which came into effect in 2019, controls parenting plans which are between 55/45 and 50/50. That statute means that the relocation statute applies if a parent with the 50-50 plan wants to relocate. That is, they have to give notice under the Relocation Act, just as they do if it is an every other weekend kind of parenting plan. But there is no presumption that a parent can relocate. The court has to apply all 11 factors in the relocation statute, but has to decided based on the best interests of the children, which is a practical matter will almost always mean the children stay right where they are. So if you are the parent that wants to relocate, and there is a 50/50 parenting plan, your chances of taking the children with you are not good.
  • As of October 2020, there is no case law interpreting the new statute. I suspect that is because it makes relocating so difficult, it is either pointless to even have the fight; or the facts were so overwhelming one way or the other that neither party wanted to appeal.
  • This means if you are the traditionally “non-residential” parent – that is, the parent who, traditionally, would expect to have every other weekend – and you want to make sure the other parent does not relocate at some point in the future, the only way to make sure that is to get and execute a 50/50 parenting plan..
  • 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.
  • 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.
  • There are practical aspects to this. If the children are very young – one-year-old to 10 or 12 years old – then the court is not going to pay a lot of attention to what the children want. If the kids are teenagers, say from 12 to 18 years old, then as a practical matter they usually get a voice. They will not formally get a voice in court in a relocation fight. That is because courts never want to hear from the children at trial. The only way to get children’s voices in, at trial, is either through a parenting evaluator who will talk to the children; or possibly a counselor if they have a counselor. But King County will not normally appoint an evaluator in relocation cases, because the case schedule is so short there is no time to get a parenting evaluation done. Family Court Services will try to mediate relocation cases; but will not do an evaluation. That means there is no good way to get the children’s voices in at trial.
  • I rarely see relocation cases with fights over teenagers. That’s because most parents will pay attention to what teenagers want. And if the 14-year-old tells Mom that he really really really wants to go to school where he is in Issaquah, and does not want to move to Texas with her, most of the time Mom will accede to that, and leave the 14-year-old with Dad, and all of his friends in school here. Conversely, if the 14-year-old tells Dad that he really wants to move with Mom to Texas, most decent fathers will let the child go. So it never becomes a fight in court.
  • 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 the kids are staying here. 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.