Subsequent to the posting of this article, the legislature addressed the issues raised in Snider and in this article. See Legislature Fixes Relocation Problems for 50-50 Plans.
When separating parents argue over who should have their child the majority of the time, they are typically concerned with three issues: (1) time with the child, obviously, (2) child support, and (3) possible relocation of the child. The time and expense of travel to and from any island in San Juan County heightens the relocation concern. A parent may wish to prevent the child from moving off of the island, or may wish to move with the child off of the island. Just this month, the Court of Appeals has decided a case that impacts this issue significantly in so-called “50-50 parenting plans.”
The Child Relocation Act, RCW 26.09.405 et seq., allows the parent with whom the child resides the majority of the time—the “primary residential parent”–and only that parent, to relocate the child (changing school districts). The relocating parent must give the other parent adequate notice. The non-relocating parent may ask the court to restrain the move of the child or even to modify the parenting plan to become the primary residential parent. However, the Child Relocation Act makes it easier for the primary residential parent to relocate the child than for the other parent to restrain the move. Hence, being the primary residential parent is important when the child’s relocation is an issue.
In San Juan County, 50-50 plans are fairly common. Often, the parents remain on the same island so that the travel time between parents is minimal. The child can easily spend an equal amount of time living at each parent’s residence.
Until recently, the law’s position on relocations of children with 50-50 plans was unclear. Recent cases have provided some clarity. This month, the Court of Appeals decided Marriage of Snider and Stroud, No. 77583-9-I (Wn. App. 2018), taking this problem in a difficult direction. Parents devising parenting plans should pay close attention to this current state of the law.
In the 2017 case of Marriage of Ruff and Worthley, 198 Wn. App. 419 (2017), the Court of Appeals finally answered the question of whether the Child Relocation Act applies to 50-50 plans. Noting that the Act gives the “person with whom the child resides a majority of the time” the ability to relocate the child, and noting that there is no such parent in a 50/50 plan, the court held that the Act does not apply to 50-50 plans. A parent wishing to relocate the child must file for a modification of the parenting plan in order to relocate the child, which is difficult to do.
This month, Snider held that a relocating parent with a 50-50 plan cannot even seek a modification of the parenting plan as suggested in Ruff. Understanding why requires understanding the differences between a “major” and a “minor” modification of a parenting plan. In a minor modification, parents can move for “adjustments” in the residential schedule of a child when the circumstances of either parent or the child change. However, those adjustments cannot switch the primary residential parent, and they have other limits to the size of the change. A major modification, on the other hand, does not have these restrictions. However, a parent wanting a major modification must demonstrate a change in circumstance of the other parent or the child, and only extraordinary changes in circumstances will suffice. A change in the circumstances of the moving party cannot justify a major modification.
So if the Child Relocation Act does not apply, as held by Ruff, what type of modification should a parent seek to relocate a child subject to a 50-50 plan? Snider held that neither type of modification is available based on the relocation alone. A minor modification is not available because it would change the primary residence of the child from “none” (because the parents have equal time) to that of the relocating parent. But a major modification is not available because that requires a change in the non-moving parent’s or the child’s circumstances, not that of the relocating parent. Snider therefore held that there is no way for the relocating parent to modify the parenting plan simply because of the relocation.
While there is logic in the Snider decision’s interpretation of the statute, this is a poor result. There are circumstances when parents must relocate, and courts should be able to determine what is in the best interest of the child when that occurs. The Child Relocation Act only allows the primary residential parent to relocate the child, and it provides an analytical framework for determining the child’s best interest in that event. Having absolutely no way to bring the issue before the court is not serving the interests of children.
This result also heightens the need for separating parents to pay attention to potential relocation. 50-50 plans put parents who are certain to stay put in the driver’s seat. Conversely, a parent who may wish to relocate will have no way to relocate the child even if that relocation is clearly the best choice under the circumstances. As explained in another post, parents may not even be able to agree that the Child Relocation Act applies. See Bergerson: More on Relocation in 50-50 Plans.
No doubt this is not the last word on this issue. The legislature could change the Child Relocation Act to apply in at least some way to parents with 50-50 plans. Or perhaps the Washington Supreme Court will weigh in at some point. In the meantime, separating parents should take care.
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