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Bergerson: More on Relocation in 50/50 Plans
December 30, 2018

Not even a month ago, I wrote about Marriage of Snider, which addressed a parent’s desire to relocate when a 50-50 parenting plan applies to the child. See Snider: Relocating Children With 50-50 Parenting Plans. Snider held that the relocating parent has no legal avenue to modify the parenting plan to allow the parent to relocate with the child. Separated parents who continue to live in San Juan County commonly share equal residential time. 50-50 plans where only one parent lives in the county are usually not tenable even if one parent lives in a neighboring county, or even on a different island within the county. Snider‘s holding gives all of the power to the parent staying in the county no matter what the circumstances of the child and parents are.

Parents negotiating 50-50 parenting plans may desire to agree to language in the plan that gets around the Snider holding. One approach, which has been used in the county, is to agree that the Child Relocation Act (“CRA”), RCW 26.09.405 et seq., applies even though there is no parent with whom the child resides “the majority of the time.” These agreements typically modify the CRA only to stipulate that the relocating parent does not enjoy the CRA’s normal presumption that the child’s relocation would be allowed. These agreements may not be valid.

This month, the Court of Appeals decided Bergerson v. Zurbano, No. 77407-7-I (Wa. Ct. App. December 24, 2018). The facts in Bergerson are similar to those in Snider except that, in the child’s 50-50 parenting plan, the parents had agreed that the CRA applies to proposed relocations despite the fact that neither parent had the child “the majority of the time.”  Bergerson held that this agreement was not valid because the CRA is not designed to handle 50-50 plans.

There is some logic in the Bergerson decision. Under the CRA, a court considers a proposed relocation using 10 statutory factors. Several of those factors in the CRA–indeed the CRA itself–assumes that the decision by the parent with whom the child resides the majority of the time is a fit parent who is making the best choice for the child. Consequently, these factors are not designed for 50-50 plans where the non-relocating parent’s opposition to the proposed relocation should be given equal weight.

The Bergerson decision, like Snider, reinforces the importance of careful consideration of potential relocations when agreeing to a 50-50 parenting plan. One option may be to make it easier for a relocating parent to petition for a major modification of the parenting plan. Perhaps this could be done by agreeing that the court can consider the best interests of the child, and only the best interests of the child, when a parent proposes a relocation of the child. This agreement would remove the difficulty with seeking “major” parenting plan modifications discussed in the Snider article. It appears that the courts would allow such an agreement because the agreement waives protections for the parent, not the child. See Marriage of Adler, 131 Wn. App. 717 (2006). However, many parents wanting to stay in San Juan County would not want to make it easier for the other parent to relocate the child away from San Juan County.

As I explained in my post on Snider, the current state of the law is not ideal because it does not allow the courts to consider situations where the proposed relocation is in the best interests of the child. We shall have to wait for a fix to this problem from the legislature or perhaps the Washington Supreme Court.

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