You and your spouse are divorcing, and custody is a big issue. This is a common problem, and one with no easy answers. Naturally, the best interests of your child should be of top concern. In fact, this is the criteria that a court will use to make custody determinations should you and your partner not be able to do so. To help you negotiate an arrangement that works best for all involved, consider the factors that the court uses to make these determinations.
Co-parenting after a divorce presents many challenges even when both parents live in the same area. However, if the custodial parent decides to move to a new city or state with the child, many difficult issues arise. The non-custodial parent will be unable to see the child as frequently as before. Travel is an added expense for both parties. The child is subjected to a major change that has the potential to greatly disrupt his or her life. For these reasons, many non-custodial parents file court proceedings to bar relocation if at all possible. The custodial parent sometimes has no choice but to move - for example, due to a job change or military orders. Having an excellent attorney often means the difference between a court order barring or allowing relocation.
In a "'best case" divorce scenario, both parents are friendly and amicable with one another, sharing parenting responsibilities and acting in their child's best interest. Unfortunately, many divorces are not amicable, and parental alienation can result.
This Blog discusses the law and procedure to obtain a court order declaring the validity of a marriage that was mistakenly entered into prior to the termination of another marriage. A Decree of Validity of Marriage may resolve immigration issues that could arise in a deportation proceeding.
The Statute: RCW 26.09.040
What Happens if Two People Get Married Before One of Them Gets Divorced?What happens if two people mistakenly go through a marriage ceremony under the mistaken belief that a divorce for one of the parties has become final, when it has not? If that person's divorce occurs later than the second wedding ceremony, can they ask the court to declare the second marriage valid? In most cases, the answer is yes; a Decree of Validity should be granted pursuant to RCW 26.09.040 (4)(b)(ii). RCW 26.09.040(4)(b)(i) does not apply if the first marriage was subsequently "terminated and dissolved." RCW 26.09.040 (4)(a)(ii) does apply, and a decree of validity should be granted, because the reasons for invalidity listed in RCW 26.09.040(4)(i) do not include a prior marriage which was terminated after the second marriage. The Court should enter a decree of validity declaring the second marriage to be valid.
When and How Can the Petition Be Heard?The State of Washington has a governmental interest in validating the marital status of its citizens. See, eg, H. Clark, The Law of Domestic Relations in the United States, sections 3.1 and 3.2 (second ed. 1987). A proceeding under RCW 26.09.040 may be filed even if only one of the spouses is a Washington resident. See RCW 26.09.040(1); Cf. Sasse v. Sasse, 41 Wn.2d 363, 249 P.2d 380 (1952). The other spouse can file a Joinder to the Petition. "A 90 day cooling off period is not applicable to a proceeding concerning the validity of a marriage." See L. Rieke, "The Dissolution Act of 1973: From Status to Contact?", 49 Wash. L. Rev. 375, 392 (1974); Saville v. Saville, 44 Wn.2d 793, 793-94, 271 P.2d 432, 433 (1954); see also State v. Denton, 97 Wn. App. 267, 271, 983 P.2d 693 (1999), quoting Feehley v. Feehley, 129 Md. 565, 99 A. 663 (1916). For that reason, it would appear that the parties can have the Ex Parte department hear their joint Motion for Decree of Validity immediately after filing the Petition.
How is the Hearing Conducted?Since RCW 26.09.040(4) indicates that the Court should entered its order "After hearing the evidence concerning the validity of a marriage...," the Court should take brief testimony from the parties. The hearing on this issue is subject to the normal rules of evidence. ER 1101 provides that the rules of evidence apply to virtually all civil proceedings, including the validity of a marriage.
What Evidence Is Needed?The strong public policy in favor of marriage raises a presumption in favor of validity. See, e.g., Davis v. Davis, 3 Wn.2d 448, 453-55, 101 P.2d 313, 315-16 (1940). To support this strong public policy, the Court must utilize all available presumptions in favor of validity. Thomas v. Thomas, 53 Wash. 297, 101 P. 865 (1909); Goldwater v. Burnside, 22 Wash. 215, 60 P. 409 (1900). These presumptions make it possible to validate a marriage, even when witnesses are unavailable and documents have been misplaced. See H. Clark, supra, section 3.7 (second edition 1987); and Potter v. Potter, 45 Wash. 401, 404, 88 P. 625, 626 (1907). The solemnization of a marriage (evidenced by the Marriage Certificate and the Marriage License) gives rise to a presumption that all legal requisites for the marriage existed. See, e.g., In re Slone's Estate, 50 Wash. 86, 89, 96 P. 684, 685 (1908).
DisclaimerPlease keep in mind that although my Blogs are often informative, they are no substitute for legal advice from an attorney you have retained for consultation or representation. There are always exceptions to the general rules.
Summary:This Legal Guide summarizes Washington State's Relocation Act (RCW 26.09.430 through 26.09.480). If the custodial parent plans to move, that person has to give prior notice of the move to the noncustodial parent (or anyone else with custodial or visitation rights). If there is no objection within 30 days, the move will be allowed. If an objection is filed with the court, the court will schedule an evidentiary hearing to decide if the move will be allowed.
Notice of a move outside school district:If the move is outside the child's school district, the custodial parent must give notice to the noncustodial parent by personal service or by mail requiring a return receipt. This notice must be at least 60 days before the intended move. If the custodial parent could not have known about the move in time to give 60 days' notice, that person must give notice within 5 days after learning of the move. The notice must contain the information required in RCW 26.09.440 [use the blank form DRPSCU 07.0500, Notice of Intended Relocation of a Child].
Notice of a move within school district:If the move is within the same school district, the custodial parent must provide actual notice by any reasonable means. The noncustodial parent in that event may not object to the move, but may ask for modification under RCW 26.09.260.
Delay of notice to avoid harm:Notice may be delayed for 21 days if the custodial parent is entering a domestic violence shelter, or is moving to avoid a clear, immediate and unreasonable risk to health and safety. If information is protected under a court order, or the address confidentiality program, it may be withheld from the notice. In addition, the custodial parent may ask the court to waive any notice requirements that may endanger the health and safety of a person or a child.
Punishment for failure to give notice of a move:Failure of the custodial parent to give the required notice before relocating with a child may be grounds for the court to impose a fine or other sanctions, including contempt. There are many details in the statute, so it is best to have an attorney help with the notice so that the move is not later successfully attacked in court. If proper notice is not given, the court may order that the child (and thus the relocating parent) must return to the original county before the move until a trial with testimony can be held.
Relocation Is Normally Allowed:If the noncustodial parent does not file an objection within 30 days after service of the notice, the relocation will be permitted, and the custodial parent's proposal for a revised parenting plan will be adopted. If an objection is timely filed, a hearing will be scheduled to take testimony on the proposed move and objections to it. The statute and cases say that the move will be allowed if the custodial parent meets the criteria for the 11 statutory factors considered by the court (see Bruce Clement's AVVO Legal Guide on "Relocation With the Children - The 11 Statutory Factors"). Reasons which are often found to be sufficient include: A new job or employment opportunity; an important college course; sick parents who need care; a spouse who has to move due to a job change or military reassignment. Reasons which are often not found to be sufficient include: moving to stay with a boyfriend/girlfriend; attempts to cut off visitation; better grade school; nicer house.
How to object to relocation:A person entitled to court ordered visitation can file an objection to the child's relocation whether or not he or she received proper notice. This objection may be filed by using the mandatory form WPF DRPSCU 07.0700, (Objection to Relocation/Petition for Modification of Parenting Plan/Residential Schedule). The objection must be filed in court, and served, within 30 days on all persons entitled to time with the child. There are many details to the statute, so it is best to consult with an attorney to make sure your objections are properly made.
When relocation is prohibited:Relocation can be prohibited by court order. In addition, the custodial parent cannot move the child during the time for objection unless: (a) the delayed notice provisions apply; or (b) a court order allows the move. If the objecting person schedules a hearing for a date within 15 days of timely service of the objection, the custodial parent cannot move the child before the hearing unless there is a clear, immediate and unreasonable risk to the health or safety of a person or child.
DisclaimerDISCLAIMER: (C) Bruce Clement This Blog is provided for general educational purposes only. By using or participating in this site you agree and understand that there is no attorney client relationship between you and the attorney author. The law changes frequently, and varies from jurisdiction to jurisdiction. The information provided in this Blog is general in nature and may not apply to the factual circumstances in your situation. The applicable law may be different in the State or States where the relevant facts occurred. For a definitive solution to your situation you should seek legal advice from an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation.
Additional resources provided by the author
RCW 26.09.430 through 26.09.480.
Bruce Clement's Blog on "Relocation With the Children - The 11 Statutory Factors"
The Constitutional Right to a Jury Trial Does Not Apply to All CasesMost people know that there is a federal constitutional right to a jury trial. This right universally applies to all criminal cases, and most civil cases like personal injury, contract disputes, and so forth. However, the appellate courts (including the US Supreme Court) have ruled that the general federal right to a trial by one's peers was not intended by the founders to apply to certain cases. Even in ancient English common law, from which our legal system derived, there were many types of cases where the right to a jury trial did not exist.
Termination Cases Are an Exception to the General RuleAmong the modern exceptions to the general rule requiring juries are cases involving the termination of parental rights by the state due to abuse or neglect of a child. There are some states where a right to trial by jury in termination cases is granted by state statute or a state constitutional provision. But the US Supreme Court has held that there is no federal constitutional right to a jury trial in cases brought by the state to terminate parental rights due to abuse or neglect. In Washington State and most other states, there is no right to a jury trial when the state files a case to terminatte parental rights due to abuse or neglect of a child.
There is No Right to a Jury Trial in Termination CasesThere is a good Wikipedia article online captioned "Jury Trial". In that article the following quote appears: "In most US states, there is no right to a jury trial in family law actions not involving a termination of parental rights, such as divorce and custody modifications." Like it or not, that's the law in most states.
The Seventh Amendment: Federal Right to Jury TrialThe 7th Amendment to the US Constitution provides: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law." "The Constitution of the United States of America". Gpoaccess.gov. http://www.gpoaccess.gov/constitution/html/ amdt7.html. "[The 7th Amendment] is a most important and valuable amendment; and places upon the high ground of constitutional right the inestimable privilege of a trial by jury in civil cases, a privilege scarcely inferior to that in criminal cases, which is conceded by all to be essential to political and civil liberty." Joseph Story, Commentaries on the Constitution of the United States.
The Right to a Jury Trial is Not Guaranteed in All Cases in the USThe 7th Amendment does not guarantee the right to a jury trial in all cases. Instead, it attempts to preserve the right to jury trial which existed in 1791 in England at common law. In England in 1791, civil actions were divided into actions "at law" (which had a right to a jury trial) and actions in equity (which did not). Federal Rules of Civil Procedure Rule 2 says "[t]here is one form of action - the civil action[,]" which abolishes the at-law/equity distinction. Nevertheless it still remains true in America that in cases which would have been "at law" in 1791, there is a right to a jury; in cases that would have been "in equity" in 1791, there is no right to a jury.
Which Cases are "At Law", and which are "Cases in Equity"?To determine whether any given case will be considered "at law" or in equity in America today, one must first determine whether such an action was considered "legal" or "equitable" in England in 1791. English suits for monetary damages were purely a legal remedy, and thus entitled to a jury. Non-monetary remedies such as injunctions, mandamus, rescission, and specific performance were all equitable remedies, and thus tried by a judge, not a jury. In Beacon Theaters v. Westover, 359 U.S. 500 (1959), the U.S. Supreme Court discussed the right to a jury, holding that when both equitable and legal claims are brought, the right to a jury trial still exists for the legal claim.
Which State Cases Are Tried to Juries?Although there is no United States constitutional right under the 7th Amendment to a jury trial in state courts, every state except Louisiana permits jury trials in civil cases in state court on the same basis as allowed in federal court under the 7th Amendment. The federal constitutional right to a jury trial in state civil cases does extend to parties when a state court is enforcing a federally created right, of which the right to trial by jury is a substantial part. "CRS/LII Annotated Constitution Seventh Amendment". Law.cornell.edu.http://www.law.cornell.edu/anncon/html/ amdt7frag1_user.html. But as a general rule, equity cases in the US are tried to judges, not juries.
DisclaimerThis Blog is provided for general educational purposes only. By using or participating in this site you agree and understand that there is no attorney client relationship between you and the attorney who wrote this Blog, and no attorney-client confidentiality. The law changes frequently, and varies from jurisdiction to jurisdiction. The information provided in this Guide is general in nature and may not apply to the factual circumstances described in your question. The applicable law and the appropriate advice may be different in the State or States where the relevant facts occurred. For definitive legal advice you should independently consult an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation. Your comment to this Legal Guide may be used for promotional or educational purposes.(C) Bruce Clement
Previous Child Custody DeterminationPlease review my previous AVVO Legal Guides on Interstate Custody and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA; in Washington State the statute is RCW 26.26). The UCCJEA provides that when a state in the US has previously entered a child custody determination, that state will continue to exercise jurisdiction until it waives or declines jurisdiction.
Home State Jurisdiction (Including Foreign Countries)When there is no prior court order on custody or visitation, RCW 26.27.201(1)(a) provides that the initial inquiry for UCCJEA jurisdiction will be whether or not the child has a "home state," as defined by RCW 26.27.021. RCW 26.27.021(7) defines the home state of the child as the place where the child has lived for six months prior to the commencement of the proceeding. RCW 26.27.051(1) provides that "a court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying Articles 1 and 2." Therefore, if the child has lived in Japan for more than six months, Japan would normally be considered to be the "home state" of the child under RCW 26.27.201(1)(a).
Status of Forces Agreement (SOFA) in JapanHowever, Under the Status of Forces Agreement (SOFA), a treaty signed between the US and Japan, U.S. service members and their dependents "...shall not be considered as acquiring any right to permanent residence or domicile in the territories of Japan." For this reason, Japan will not make a custody determination for children of US service members due to the SOFA. When the parents reside in a state or country for more than six months, but intend to reside there only for a temporary period, and do not intend to return to that state or country, it is not a "home state" within the meaning of RCW 26.27.021(7). C.f. Hudson v. Hudson, 35 Wn.App. 822, 670 P.2d 287 (1983). Therefore, Japan will normally not be the home state of the child of a US service member.
SOFA Precludes Japanese Jurisdiction in Military Custody CasesPursuant to the SOFA treaty with the US, Japan will not take jurisdiction over the children of US military service members, unless one parent is Japanese and the child has Japanese citizenship. The Status of Forces Agreement (SOFA) between Japan and the U.S. specifically provides that U.S. forces and their dependents "shall not be considered as acquiring any right to permanent residence or domicile in the territories of Japan." This precludes Japan from making child custody determinations as no child becomes a true resident of Okinawa/Japan.
SOFA ProvisionsSOFA ARTICLE IX provides: 1. The United States may bring into Japan persons who are members of the United States armed forces, the civilian component, and their dependents, subject to the provisions of this Article. 2. Members of the United States armed forces shall be exempt from Japanese passport and visa laws and regulations. Members of the United States armed forces, the civilian component, and their dependents shall be exempt from Japanese laws and regulations on the registration and control of aliens, but shall not be considered as acquiring any right to permanent residence or domicile in the territories of Japan....
Most Convenient ForumRCW 26.27.201(1) (b) states when there is no home state of the child or that state declines to exercise jurisdiction, the more appropriate forum should take jurisdiction. Washington may the most convenient forum to make custody decisions if the child has more connections to Washington State than to any other state. These connections can be past residence in Washington; an intent of one or both parents to eventually live there; Washington being the military "home of record"; the existence in Washington of medical or educational records, family ties, and friends; the mentioning of Washington State in the military "Family Care Plan"; or the presence in Washington of witnesses about the parents' child care history.
Inconvenient ForumBy contrast, RCW 26.27.261 indicates when a court is an inconvenient forum. The first issue mentioned in the statute is a history of domestic violence. Another factor mentioned in RCW 26.27.261(2)(e) is an agreement between the parties as to which state should assume jurisdiction. If one parent has previously agreed that Washington state would decide issues of custody, that is a fact the court can consider in deciding whether to exercise jurisdiction.
"Vacuum Jurisdiction"RCW 26.27.201 (1) (d) provides a solution for those cases in which there seems to be no state which has jurisdiction. It provides that: ...[A] court of this state has jurisdiction to make an initial child custody determination...if: ... (d) No court of any other state would have jurisdiction under the criteria specified in (a), (b), or (c) of this subsection. This "vacuum jurisdiction" provision applies when the child has no home state, there is no convenient American forum, no state has any substantial witnesses or evidence about custody, and the child has no significant connection to any other state. Such a situation would leave the parties in a jurisdictional vacuum. RCW 26.27.201 (d) applies when "No court of any other state would have jurisdiction...." If the Court finds no other basis for jurisdiction, it should apply this "vacuum jurisdiction" provision of the UCCJEA.
The Need for an Early Decision on CustodyMany things must be done by a parent prior to departure from Japan. They will have to notify the military whether they will be traveling alone or with the child; make plane reservations; contact the new school and day care; and set up the necessary residential arrangements. The State with the most significant connections, more convenient forum, or "vacuum jurisdiction," must resolve these issues before travel plans can be made. If the parties agree and can articulate minimal grounds for jurisdiction, the Courts should be amenable to taking jurisdiction. If the parties don't agree, it may essentially boil down to a race to the court house. However, courts with competing grounds for jurisdiction when no prior custody order has issued are required to consult with each other under the UCCJEA before making a decision.
"Vacuum Jurisdiction" Allows Difficult Custody Issues to be DecidedRCW 26.27.201 (1) (d) was intended to resolve those cases where no other basis of jurisdiction is provided under the UCCJEA, but some state nevertheless must enter a Parenting Plan. This conclusion is supported by the following quote from Horenstein, Washington Practice, Volume 17, Family and Community Property Law, ? 24.11 (page 137): Washington Court may assume jurisdiction over a custody proceeding when it appears that no state is the child's home state, there is no state with which the child and a party have significant connections and no state is been determined to be the more appropriate forum by the child's home state. Thus, for example, if a couple meets while in the military while overseas and they come from different states they marry, conceive a child, the child is born and raised overseas, and then the couple separate in view of their respective discharges, this provision comes into play. The first party to file will often have a paramount claim to jurisdiction.
Service of ProcessNotice of a child custody case filed under the UCCJEA to "a person outside this state may be given by personal service [RCW 26.27.081(1)(a)] or certified mail [RCW 26.27.081(1)(b)]." It is often prudent to serve Respondent in both manners. Statutory notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court. RCW 26.27.081(3). Service by one of the statutory methods will normally suffice to establish personal jurisdiction to someone living outside of Washington State. See, e.g., Hudson v. Hudson, 35 Wn.App. 822, 670 P.2d 287 (1983); and In re Marriage of Tsarbopoulos, 125 Wn.App 273, 104 P.3d 692 (2004). Courts in Washington State may adjudicate child custody issues under the UCCJEA without acquiring personal jurisdiction over the absent party, as long as the absent party has been given adequate notice under all the circumstances. Hudson v. Hudson, supra.
Disclaimer(C)Bruce Clement. This Blog is provided for general educational purposes only. By using or participating in this site you agree and understand that there is no attorney client relationship between you and the attorney who wrote this Blog, and no attorney-client confidentiality. The law changes frequently, and varies from jurisdiction to jurisdiction. The information provided in this Guide is general in nature and may not apply to the factual circumstances described in your question. The applicable law and the appropriate advice may be different in the State or States where the relevant facts occurred. For definitive legal advice you should independently consult an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation. Your comment to this Legal Guide may be used for promotional or educational purposes.
IntroductionThis Legal Guide is a follow-up to the prior Guide, "Petitions for Custody by Grandparents and Non-Parents." In the current Guide, the following additional topics are covered: Independent custody investigations; non-parental custody when the parents are unfit; non-parental custody when the parents are not unfit; the best interests of the child; termination of parental rights; restrictions on visitation by the biological parents; domestic violence; and the definition of "parenting functions."
Independent Custody InvestigationsIn a non-parental custody case, the court can order an independent investigation and recommendation from a private or public source. In King County, for example, custody investigations are often conducted by Family Court Services (FCS). This county agency consists of professionals, mostly social workers, who conduct custody investigations and make custody recommendations to the judges. Their reports are authorized by RCW 26.10.130. The report must be mailed to counsel and any pro se party at least ten days prior to the court hearing. RCW 26.10.130(3). Any party may call the FCS investigator as a witness that the FCS investigator "and any person whom the investigator has consulted" for examination or cross-examination at trial. RCW 26.10.130(3). If the notice requirements of RCW 26.10.130(3) have been met, "the investigator's report may be received in evidence at the hearing."
When the Parents are UnfitThe court may award custody of a child to a nonparent when both parents are either unfit, or are unable or unwilling to care for the child. In re Custody of Shields, 157 Wn.2d 126, 136 P.3rd 117 (2006). See also In re Custody of SHB, 118 Wn. App. 71, 74 P.3rd 674 (2003); affirmed 153 Wn.2d 646, 105 P.3rd 991. Unfitness may be proved in a number of situations, including: drug addiction; alcoholism; abandonment; neglect; abuse; sexual molestation; failure to protect a child from abuse or neglect; failure to provide adequate food, shelter, clothing, education or medical care; emotional illness; or criminal activity.
When the Parents are FitThe court may award custody of a child to a nonparent when both parents are fit, but placement with a parent would result in actual detriment to the child. In re Custody of Shields, 157 Wn.2d 126, 136 P.3rd 117 (2006). See also In re Custody of SHB, 118 Wn. App. 71, 74 P.3rd 674 (2003); affirmed 153 Wn.2d 646, 105 P.3rd 991. A nonparent who has physical custody of a child can be awarded custody against a fit biological parent if placement with the parent would result in actual detriment to the child's growth and development. In re Custody of Shields, ibid, at 143. For example, non-parental custody has been granted against a father who was not unfit, but who did have a significant history of physical and emotional abuse, where the children were fearful of him, and were currently living with the non-parents in a stable, happy, nurturing environment. In re Custody of BJB, 146 Wn. App. 1, 189 P.3rd 800 (2008); review denied, 165 Wn.2d 1037, 205 P.3rd 191.
Constitutional Rights of Biological ParentsNon-parental custody cases are necessarily different from divorce or paternity cases. In the latter, the court is weighing who the better custodian would be as between two biological parents, who have constitutional rights to custody. In non-parental custody cases, the non-parents do not have a constitutional right to custody. A nonparent who has physical custody of a child can be awarded custody against a fit biological parent if placement with the parent would result in actual detriment to the child's growth and development. In re Custody of Shields, ibid, at 143. For example, non-parental custody has been granted against a father who was not unfit, but who did have a significant history of physical and emotional abuse, where the children were fearful of him, and were currently living with the non-parents in a stable, happy, nurturing environment. In re Custody of BJB, 146 Wn. App. 1, 189 P.3rd 800 (2008); review denied, 165 Wn.2d 1037, 205 P.3rd 191. When a child does not reside
Non-Parental Custody Does Not Terminate the Rights of the Biological ParentsUnlike a dependency or termination proceeding, a non-parental custody order does not terminate parental rights. In re Custody of SBH, supra, at 83. After a decree is entered, and custody is granted to a non-parent, it still remains the hope and expectation of the court that one or both of the biological parents will eventually be able to assume or resume custody of the children. For that reason, they can petition the court for custody at a later date when they are able to provide adequate parental care for the children. In such cases, the court will normally allow the parents to resume care of the children, unless the non-parental custodians can show actual detriment to the health and welfare of the children.
Restricting Visitations by the ParentsIn non-parental custody cases, the grandparents or other custodians often want to restrict visitation by the natural parents, especially if they are often prone to rages, violent outbursts, or high on drugs or alcohol. "Visitation with the child shall be limited if it is found that the parent seeking visitation has engaged in any of the following conduct: (i) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions; (ii) physical, sexual, or a pattern of emotional abuse of a child; (iii) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm; or (iv) the parent has been convicted as an adult of a sex offense. . . ." 26.10.160(2)(a).
Domestic Violence of the ParentsCertain sections of the divorce statute would seem to give guidance to judges in non-parental custody cases. For example, RCW 26.09.003 states that, "the legislature finds that the identification of domestic violence as defined in RCW 26.50.010 and the treatment needs of the parties to dissolution are necessary to improve outcomes for children." Certainly, the same can be said for dysfunctional parents in non-parental custody proceedings.
What Are "Parenting Functions"?In RCW 26.09.004(2) (another section dealing with custody in divorces) defines parenting functions to include: "those aspects of the parent-child relationship in which the parent makes decisions and performs functions necessary for the care and growth of the child. Parenting functions include: maintaining a loving, stable, consistent, and nurturing relationship with the child; attending to the daily needs of the child, such as feeding, clothing, physical care and grooming, supervision, health care, and day care, and engaging in other activities which are appropriate to the developmental level of the child and that are within the social and economic circumstances of the particular family; attending to adequate education for the child, including remedial or other education essential to the best interests of the child; assisting the child in developing and maintaining appropriate interpersonal relationships; [and] exercising appropriate judgment regarding the child's welfare..."
DisclaimerDISCLAIMER: This Legal Guide is provided for general educational purposes only. By using or participating in this site you agree and understand that there is no attorney client relationship between you and the attorney author. The law changes frequently, and varies from jurisdiction to jurisdiction. The information provided in this Legal Guide is general in nature and may not apply to the factual circumstances in your situation. The applicable law may be different in the State or States where the relevant facts occurred. For a definitive solution to your situation you should seek legal advice from an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation. (C) Bruce Clement
1. The Washington State Relocation Act.RCW 26.09.520 provides: "The person proposing to relocate with the child shall provide his or her reasons for the intended relocation. There is a rebuttable presumption that the intended relocation of the child will be permitted. A person entitled to object to the intended relocation of the child may rebut the presumption by demonstrating that the detrimental effect of the relocation outweighs the benefit of the change to the child and the relocating person, based upon the following factors. The factors listed in this section are not weighted." The eleven factors to be considered by the court are listed in a previous Legal Guide. They may be summarized as the child's relationship with each parent, prior agreements, detrimental effects, serious parenting problems, good faith of the parties, the needs of the child, resources available to the child and the relocating party, alternative options, whether both parents can relocate, the financial impact, and the need for a speedy decision.
2. Legislative History.The relocation statute was adopted by the Washington State legislature in 2000. Before that, a custodial parent who wanted to relocate had to file a petition to modify the Parenting Plan. Trial could take a year or more. The caselaw made it difficult for the custodial parent to justify relocation. The legislative hearings were intense. Custodial parents (most often women) did not want to be blocked from relocating for important family or employment reasons; non-custodial parents (most often men) did not want to have their relationships with their children disrupted by moves to distant locations. Important compromises were made by both sides: relocation cannot be based on trivial reasons; notice must be given; and an early trial date is required. The court must consider the detrimental effect of relocation to both the child and the relocating parent. Finally, the court must consider the detriments and benefits of relocation for the both the child and the relocating parent.
3. In Re Horner.In In re Marriage of Horner, 151 Wn.2d 884, 93 P.3d 124 (2004), the non-custodial father objected to relocation by his former wife with their child. The mother notified the father that she intended to relocate from Vancouver, Washington, to Edmonds so that she could care for her ill parents. The State Supreme Court reversed the trial court's decision blocking the relocation: "The CRA [Child Relocation Act] shifts the analysis away from only the best interests of the child to an analysis that focuses on both the child and the relocating person. RCW 26.09.520. The CRA creates a rebuttable presumption that relocation will be permitted. Id. To rebut this presumption, an objecting party must demonstrate "that the detrimental effect of the relocation outweighs the benefit of the change to the child and the relocating person..." The Court held that "Particularly important ... [in the Horner case] are the interests and circumstances of the relocating person. Horner, at 894.
4. In re Osborn.
5. In Re Fahey.In In re Marriage of Fahey, 164 Wn. App. 42 (2d Div. 2011), rev. den. 164 Wn. 2d 42, the custodial mother's move to Omak, Washington was allowed over the father's objection. The Court of Appeals held that "...the trial court did not err when ruling that Lisa was Nichole and Shannon's primary residential parent under the 2002 permanent parenting plan, applying the child relocation statutes, applying the rebuttable presumption in favor of Lisa's relocation decision, and approving the children's relocation to Omak. We also hold that, under the facts of this case, the trial court did not discriminate against Lawrence based on his disability or gender. Finally, we hold that the trial court's decisions to impose limitations on Lawrence's visitation rights under the new parenting plan and to deny the appointment of a GAL, after entering its final orders were not based on untenable grounds. We affirm."
6. In re RFR.In In re Parentage of RFR, 122 Wn.App. 324,__ P.3d __ (Div. II 2004), a father objected to the proposed relocation of his child by the mother. No parenting plan was in place. The Court stated, "...[T]he relocation act requires proof that the decision of a presumptively fit parent to relocate with the child ... will in fact be so harmful to a child as to outweigh the presumed benefits of relocation to the child and relocating parent. Osborne, 119 Wn.App. at 146-47.... Here, [the father] has not met his burden of showing that the statute violates his substantive due process rights... Osborne suggests that the ... objecting parent's ability ... to prevent the relocation ... is limited by the right of the relocating parent ... to care for the child in the manner in which he or she sees fit. In this situation, the trial court was required to intervene and necessarily choose between the parents' competing interests." In re Parentage of RFR, supra at 332-333.
7. ConclusionThe language of the Relocation Act, its legislative history, and most of the appellate cases indicate that relocation with a child will normally be allowed if the relocation is in good faith, and no serious harm can be demonstrated to the child. At the trial level, however, the judges still tend to block relocation whenever they perceive that relocating is not in the child's best interest.
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