Is child relocation a “slam dunk” for primary residential parents?
Washington’s statute on relocation of a child heavily favors permitting the child’s relocation with the primary residential parent. Many clients ask if it is even worth objecting to the relocation. The answer, unfortunately, is “it depends.” An important distinction to remember, however, is the court cannot prevent a parent from relocating. The court can only restrain a parent’s ability to take the child with them.
RCW 26.09.405 et. seq. requires that the “person with whom the child resides a majority of the time” shall provide notice to the other parent (or anyone entitled to residential time with the child) if they intend to relocate with the child. This has been interpreted to mean the parent who is designated as the primary residential parent in the Parenting Plan, but can also mean the person who actually has residential time with the child for more than 50% of the time. That is to say, the designation in the Parenting Plan will not, per se, carry the day.
Indeed, in my first relocation trial, the court actually did an analysis of the amount of time spent with each parent and determined a percentage allocation of parenting time to each parent. I have found that the more time the child spends with the alternate residential parent, the more the court will closely examine the request to relocate.
The statute further provides that there is a presumption that the relocation will be permitted. RCW 26.09.520. In layman’s terms, this means that unless the objecting parent can show the harm to the child outweighs the benefit to the child, the relocation will be permitted. The court is required to evaluate ten statutory factors to decide whether to permit or deny the relocation:
(1) The relative strength, nature, quality, extent of involvement, and stability of the child’s relationship with each parent, siblings, and other significant persons in the child’s life;
(2) Prior agreements of the parties;
(3) Whether disrupting the contact between the child and the person with whom the child resides a majority of the time would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation;
(4) Whether either parent or a person entitled to residential time with the child is subject to limitations under RCW 26.09.191;
(5) The reasons of each person for seeking or opposing the relocation and the good faith of each of the parties in requesting or opposing the relocation;
(6) The age, developmental stage, and needs of the child, and the likely impact the relocation or its prevention will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child;
(7) The quality of life, resources, and opportunities available to the child and to the relocating party in the current and proposed geographic locations;
(8) The availability of alternative arrangements to foster and continue the child’s relationship with and access to the other parent;
(9) The alternatives to relocation and whether it is feasible and desirable for the other party to relocate also;
(10) The financial impact and logistics of the relocation or its prevention; http://apps.leg.wa.gov/rcw/default.aspx?cite=26.09.520
Those factors are not weighted such that one is more meaningful than another. Nor is there any instruction under the law regarding the required outcome where, for example, five factors weigh in favor of relocation and five factors weigh against relocation. There is also no indication that these factors are the exclusive factors for the court’s consideration. Ultimately the decision as to whether or not to permit the relocation of the child is within the significant discretion of the trial court.
Other information that may be pertinent, but not specifically outlined in these factors include:
• Distance between the proposed new location and the residence of the objecting parent, including any difference in time zones;
• Whether there are significant cultural differences or language barriers in the proposed new location;
• Whether or not the proposed location is a signatory to the Hague Convention;
• The ability of the parents to cooperatively parent prior to the proposed relocation;
• What impact new partners have on the relocation and whether the new partner facilitates and encourages the child’s continued relationship with the alternate residential parent;
• Even if neither parent was subject to restrictions (RCW 26.09.191) in the existing Parenting Plan, whether those issues need to be reevaluated (including substance abuse and mental health issues).
There are also various studies and professional publications on the risk factors and longitudinal impacts of relocation on the parent-child relationship, which are well briefed by Dr. Bernardo Mora in his article for the Journal of the American Academy of Psychiatry and the Law. http://www.jaapl.org/content/38/2/291.full. However, the way the Washington statute is currently written, the focus is more on the relocating parent, and less on the best-interests of the child sought to be relocated.
Given the many considerations, if a parent wishes to prevent the relocation of a child, it is often advisable to request the appointment of a parenting professional that is well versed in relocation actions. Also be prepared to spend considerable amounts of time and money in a relatively short period of time, as the determinations on relocation are expedited and require significant court and professional intervention.