By Lisa DuFour
If your client wants to move to the Florida Keys and live on a boat with his children, can he do so if his parenting plan designates him as the primary residential parent? Does the relocation statute allow this?
What would your client, Sam, have to do to be able to spend the rest of the year drifting on bright, blue water? Of course, he should dock his boat before hurricane season. But can custodial parents move if they want to? Do they have to have a new job at the proposed location to be able to move? What does the court look at when deciding whether or not a custodial parent can move with the children?
The relocation statute is codified in RCW §§ 26.09.405-.560. When it was adopted in 2000, it significantly changed the rights of a custodial parent to be able to move with the children.
If a custodial parent wants to move, either permanently or for a protracted period of time, he now must give notice to the non-custodial parent. The court cannot stop the parent from relocating, but the court does not have to allow the parent to take the children with him when he moves.
So what does this mean for Sam since he has purchased a sailboat and is ready to sail down the coast to warmer waters with his children? Before he can pull out from the dock, he is required to give notice to every other person entitled to court-ordered residential time or visitation with the children.1 The notice has to be by personal service effected at least 60 days before he casts off or no more than five days after he knows the information that the Legislature has decided must be provided before a custodial parent can move.2
The statute is very specific about the information that must be provided to the non-custodial parent in the notice of relocation.3 Besides the reason for the move, the notice must contain the specific street address of the intended new residence (or if unknown, at least the city and state); the new mailing address and telephone number; the name and address of the children’s new school and daycare; the date of the intended relocation; and a proposed parenting plan for visitation with the children after the move.
In addition, the notice must contain the following statement:
The relocation of the child will be permitted and the proposed revised residential schedule may be confirmed unless, within thirty days, you file a petition and motion with the court to block the relocation or object to the proposed revised residential schedule and serve the petition and motion on the person proposing relocation and all other persons entitled by court order to residential time or visitation with the child.4
If Sam just wants to live on the boat and is not intending to leave the dock, and if the dock is within the same school district that the children have been attending, then Sam can give notice by any reasonable means and the non-custodial parent cannot object to the move. Nevertheless, the non-custodial parent can still move for modification under RCW § 26.09.260 if she thinks the move is not in the best interests of the children and is not necessary to serve the best interests of the children.5 If Sam casts off without telling anyone, he can be held in contempt.6
Sam can ask the court for an ex parte hearing to keep the name and dock location of his boat confidential if he is moving to protect his health or safety, or the health or safety of the children.7 The court may delay the notice requirement for 21 days if the court finds there is clear, immediate and unreasonable risk to the health or safety of a person or the child, or the court may require only partial disclosure.8
The court will look at the notice given to determine if there is substantial compliance with the notice requirements. A letter or email chain with the non-custodial parent might be substantial compliance if it contains all of the required information and Sam’s boat is docked just down the street from where he was living.9
If the children’s mother objects to the move onto the boat, then – as noted above – she must file an objection with the court within 30 days and serve Sam notice.10 The objection must be a petition for modification of the parenting plan because of the relocation or “other court proceeding adequate to provide grounds for relief.”11
Sam cannot move onto the boat pending the hearing.12 If the mom sees Sam fueling up the boat and taking on provisions for a long trip, then she can obtain a temporary order restraining relocation of the children if she was not given timely notice.13 If Sam sails away with the children, without proper notice, then the mom may be able to obtain an order requiring the children be returned.14
If the mother does not file an objection within 30 days after receipt of the relocation notice, then Sam can cast off.15 However, she is entitled to visitation per the proposed parenting plan that was required to be served with the relocation notice.16
If the mother files an objection with the court, the trial court is required to consider all of the 11 factors detailed in RCW § 26.09.520. Although there is a rebuttable presumption in favor of the intended relocation,17 it is mandatory for the court to consider all 11 factors and the court should make specific findings regarding each one.18 No one factor is more important than the rest.
To determine if the children should be allowed to move with the custodial parent, the court will look at: the nature and stability of the children’s relationship with each parent and sibling(s); prior agreements of the parties; and whether it would be more disruptive to the children to be away from the relocating custodial parent or more disruptive for the children to be away from the non-custodial parent.19 The court also has to consider the quality of life, resources and opportunities available to the children and the relocating party in the current and proposed locations.20
The court is required to examine the reasons for the move and the reasons for objecting to the move, and determine if there is good faith on both sides.21 The financial impact and logistics of the relocation or its prevention are also factors, along with the availability of alternative arrangements to continue the children’s relationship with the other parent.22 Finally, the age, developmental stage and needs of the children, and the likely impact the relocation or its prevention will have on their physical, educational and emotional development are all to be considered.23
In determining whether to allow the relocation of the children, the court may not consider whether the custodial parent will forego the relocation if the children are not permitted to relocate.24 Furthermore, the court can only consider evidence on whether the person opposing relocation will also relocate if the children are allowed to move, after the court decides whether or not to allow the relocation25.
The court in Momb v. Ragone held that the relocation statute did not violate the custodial parent’s right to equal protection by restricting his right to travel and relocate.26 Momb was the custodial parent and wanted to move with his child to Browns Valley, S.D. He argued that the relocation statutes were unconstitutional as applied because the court did not give additional weight to the presumption that he made the decision to relocate based on the child’s best interests.
The Momb court discussed weighing the detrimental effect of the relocation against the benefit of the change to the child and the relocating parent.27 The court also held that the Relocation Act did not violate the Commerce Clause and Due Process Clause of the U.S. Constitution even though the trial judge had some strong opinions about South Dakota.28 The court found that the trial court had examined all of the statutory factors and did not base its decision on a bias against Browns Valley’s rural location in denying the father’s request to move with the child.
The Relocation Statute presents challenges to both the custodial parent who wants to move and to the non-custodial parent who wants to protect her access to their children. The custodial parent is not restrained from moving, but may be forced to make the hard choice between moving or remaining the custodial parent.
Regardless of which party you represent, the complexity of a relocation argument requires effective discovery, a well-thought-out approach and a justifiable position.
1 RCW § 26.09.430.
2 RCW § 26.09.440(1).
3 RCW § 26.09.440.
4 RCW § 26.09.440(2)(a).
5 RCW § 26.09.450.
6 RCW § 26.09.470.
7 RCW § 26.09.460.
9 RCW § 26.09.470.
10 RCW § 26.09.480(1).
12 RCW § 26.09.480(2).
13 RCW § 26.09.510.
15 RCW § 26.09.500(1).
16 RCW § 26.09.500(2).
17 RCW § 26.09.520(1)-(11).
18 Bay v. Jensen, 147 Wn. App. 641, 196 P.3d 753 (2009).
19 RCW § 26.09.520(1)-(3).
20 RCW § 26.09.520(7).
21 RCW § 26.09.520(5) & (7).
22 RCW § 26.09.520(9) and (10).
23 RCW § 26.09.520(6).
24 RCW § 26.09.530.
26 132 Wn. App. 70, 130 P.3d 406, 411 (2006).
27 Id. at 79. The judge had referred to South Dakota as “hinder land.” He probably meant hinterland.