LEGAL GUIDE
Written by attorney Robert M. Hill | Nov 29, 2010

Family Law: Opposing a Relocation of Children in Washington State

The Other Parent of your Children is Planning to Move Away

The other parent of your children has informed you that he or she is planning to move away. If the proposed move is a long distance move, it will potentially have a profound impact on your relationship with your kids. But even a move of fifty or a hundred miles can have a significant impact on you and on your kids because of the difficulty in staying connected with their academics, their special events and their social lives.

Child relocation cases are widely regarded as being among the most difficult and challenging in family law, not only for parents but also for lawyers and judges. This is in part because the custodial parent often has a perfectly legitimate reason for moving, and yet in most cases, the impact on children of a move away from a parent is a negative one.

You Have a Right to Object.

In Washington, you as the non-custodial parent have a right to object to the proposed relocation of your children. And you should seek the advice of an attorney experienced in this area of law as soon as possible because even though the relocation law is simple on its face, the application of the law to your case is often not at all simple. There may be critical strategic decisions to be made in the very early stages of your case. For example, you may have a choice to file in the county of the original parenting plan or in the county in which the children currently reside if they are not the same county. Because judges approach relocation cases with differing biases and philosophies, the outcome of your case could very well be different from one county to another. And because you as the objecting parent have a right to file your objection even before the custodial parent files a formal notice of intended relocation, you may have control over the venue of the case if you act early.

The Challenge for a Parent Objecting to Relocation

Here are the three major legal disadvantages you are up against:

The law includes a presumption that the children be allowed to make the move, and YOU have to present evidence to overcome that presumption;

The law directs the court to consider the benefit of the move to the other parent, so even though you may well be able to show that the move will be detrimental to the kids (it almost always is), that in itself is usually not enough to overcome the presumption; and

The court is directed to make its decision about whether or not the kids move without considering the possibility that the other parent might decide not to move at all if the kids are not permitted to go with him/her. In other words, the court has to decide between having the kids move with the relocating parent or changing custody and having them reside with you. A decision simply directing the other parent not to move is not an option.

What Will the Court Consider in Deciding Whether to Allow the Relocation?

The relocation law identifies eleven factors that the court has to consider in deciding whether or not to permit the relocation of your kids. You can read them all in RCW 26.09.405. But even though the factors are not weighted, experience teaches that as long as the other parent’s proposed move is reasonable, the analysis boils down to whether it would be more damaging to the kids to move away from you or for the other parent to move away from them.

The question of whether the other parent’s move will be permitted might be answered best with this question: “Who is the judge?"

There are some situations which almost any judge would regard as reasonable, such as an involuntary job transfer of the other parent or of the other parent’s current spouse. But what if the other parent is marrying someone who already lives in another part of the country? What if the other parent already has a good job but wants to accept a promotional opportunity that requires relocation? What if the other parent suffers from depression and has been advised by a medical doctor to move to a sunnier climate? What if the other parent just prefers to live in a sunnier climate or wants to be closer to family that live elsewhere?

In these situations where the reasons for the move are more discretionary and less compelling, lots of other factors may come into play, not the least of which is the amount of time you currently spend and the quality of your relationship with your kids. If, for example, you are currently only visiting your kids a couple of times a month and have been inconsistent in exercising that visitation, the analysis of your case will be very different than it would be if your kids are spending 8 or 10 overnights a month with you and you are coaching the soccer team and helping with homework and taking them to their orthodontia appointments.

The Best of Times, The Worst of Times: A Tale of Relocation Cases in Two Counties

Compare these two actual cases.

In the first case, Mother seeks to relocate from Olympia to the mid-West. Father, who had agreed to a parenting plan under which Child spent just one night a week with him, had already petitioned the court for a modification of the parenting plan to increase his time with the child. In the course of litigating his case, he had raised issues about Mother, including her mental stability and misuse of prescription drugs. In the midst of this high conflict, Mother started applying for jobs out of state and got an offer that would increase her income marginally. At trial, though, she admits that one of the main reasons she wants to move out of state is to get the child away from Father.

In the second case, Mother’s high-paying job is in jeopardy because she has been underperforming in the work-from-home arrangement that her out of state employer had been permitting. The company asks her to relocate to the Southwest as a condition of her continued employment. The children, though initially reluctant to move, both tell the court-appointed Guardian ad Litem that they want to move with their mom and do not want to live with their dad, who had a generous visitation schedule with the children and attended many of their events but also had a history of anger problems and alcohol abuse. An expert witness testifies that the financial impact to Mother’s family of remaining in Thurston County will be about $500,000. Another expert testifies that the schools in the proposed new location are superior to local schools and offer gifted programs that would benefit the children that are not available to them locally. The Guardian ad Litem testifies to the court that the children should remain in the custody of Mother, where ever she may be.

The relocation was permitted in the first case and denied in the second. Why? Because of where the cases were tried and the judges who decided them. In the case of the mother who admitted she wanted to move to get away from the father, the law was arguably correctly applied and certainly within the broad discretion of the court. In the case of the mother who had been asked by her company to relocate in order to keep her job, the law was incorrectly applied by the trial judge, but by the time the Court of Appeals could correct the decision, it was too late to change the outcome, since the mother had since elected not to move and the job was no longer available to her. So the Judge’s incorrect decision stood.

The Importance of Competent Local Counsel

These examples illustrate the difficulties of litigating and predicting outcomes of relocation cases in Washington. The good news for a parent objecting to a relocation is that even though the law favors the relocating parent in most cases, the law is written so vaguely and the trial judge has such broad discretion that the presumption in favor of permitting the move is often overcome. Perhaps more than in any other kind of family law case, it’s important for you to get good advice from a lawyer familiar with the judges and customs in your area as early as possible in the process because you may have to make decisions right away that can have a major impact on how your case proceeds.

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