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  • Writer's pictureScott Semrau

Moving after divorce - Can I take my kids?

Time for a New Start! You and the kids hit the road!

This article was written by Scott Semrau for the King County Bar Association, Bar Bulletin. July, 2018

Moving is a great adventure but it could also be a bumpy ride if you are not the primary physical custodian. That's the take-a-way from the newest case to address the Washington State Child Relocation Act. Seriously, if you are not clearly the parent who has the children the majority of the time, then the prospect of a smooth relocation is less likely than ever thanks to the recent Court of Appeals decision, In Re the marriage of Jackson and Clark, Washington Court of Appeals, No. 35027-4-III, June 28, 2018.

In Re Jackson and Clark is a simple case but it opens a big can of worms. Its holding is that in the context of a parental relocation action, the parent with whom the child actually spends the majority of time is a question of fact for the trial court to decide. The agreements reached in mediation or labels written into the parenting plan, such as custodial parent or 50/50 custodial sharing are no longer the most important fact. From now on, neither party can rest on the language of the parenting plan, because what really matters is who actually has the kids more.

Where the children reside a majority of the time is an important fact because if the children’s primary physical custodial decides to move, then they will enjoy a presumption that moving is in the best interest of the children. Sure, the non-custodial parent can object, but the objecting parent has the burden of showing that the move is more detrimental than beneficial to both the custodial parent and the child.

RCW 26.09.405 - .560, also know as the Child Relocation Act gives a presumption to the primary custodial parent, shifting the analysis away from only the best interest of the child to a presumption that if relocation is in the best interest of the custodial parent, then it is also in the best interest of the child. Said another way, “a fit parent will do what is in the best interest of the child.”

Looking at the facts of this case, Rhonda Clark and David Jackson agreed in their parenting plan that Rhonda would be the primary custodian and enjoy a majority of the residential time with their two young children. But, they did not follow their parenting plan, and instead they split the children’s residential time 50/50. Ms. Clark even sent a text message to her ex-husband, admitting “we have 50/50.”

This was all fine until Ms. Clark was offered a big promotion, better pay and a brighter future if she would only move to Reno, Nevada. Coincidentally, her boyfriend also happened to live in Reno, Nevada, making the offer too good to pass up. She then sent notice to her ex-husband of her intended relocation and relied on the case of In re Marriage of Fahey, 14 Wn. Ap. 42, 262 P.3d 128 (2011) for the proposition that the parenting plan’s designation of her as the custodial parent entitled her to the presumption that relocation will be permitted. Fahey, decided just six years ago, was a strong case for Ms. Clark’s position because in Fehey the Court granted the presumption to the custodial parent named in the parenting plan even though there was considerable evidence that the non-custodial parent was in reality the parent with whom the children resided almost exclusively.

Back to Jackson and Clark, having received notice, Mr. Jackson objected to the move and objected to Ms. Clark’s enjoyment of the presumption that the move was in the best interest of the children. He claimed they had a 50/50 parenting split and Ms. Clark should not enjoy a presumption that the move was in the best interest of the child even though she was designated the primary physical custodian in their parenting plan. Note that in the absence of a presumption, the best interest of the child standard is applied, see RCW 26.09.260. The trial court took testimony on the issue of who in fact was the primary physical custodian and ruled that Ms. Clark was not entitled to the presumption, ultimately denying her request for relocation.

Ms. Clark appealed, but the Court of Appeals, choosing substance over form, disfavored the majority in Fahey, and instead sided with the sole dissenting voice in Fahey, holding that the clear language of the statute awards the presumption to the parent with ‘whom the child resides a majority of the time,” not with the parenting plans designation of whom the child resides a majority of the time.

Thus, which parent if either is the primary custodian is now clearly a question of fact to be determined by the trial court. Additional take-a-ways are to keep good records, actually be the “primary custodian” if you are in fact so designated, and if the parenting plan says 50/50 split, try to make it in reality a 51/49 split in your favor. Final message, the presumption is really helpful if you want to move and really tough to beat if your aren't the primary custodial parent. If you plan to stay put, make sure to at least get a 50/50 split.



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