Unintended Barrier to Relocation
Parents seeking to craft a parenting plan often focus on a relatively short window of time in their lives, without proper and due consideration to how the plan may change in the future. A final parenting plan, once entered, is expected to remain in place until the last child turns 18—subject only to substantial changes in circumstance along the way. Parents must focus on the changes ahead, through seasons of life, as they develop their proposed residential schedule.
In the recent published Washington Court of Appeals case Hauk v. Wuesthoff, the Court reminds us of another potentially significant cost of focusing on the short term, without due consideration for how the plan may impact the parents and the children down the road.
Case Background.
Hauk and Wuestroff had one child together, who was two (2) years old at the time of the divorce. The parenting plan designated Hauk as the primary residential parent and awarded Wuestroff a graduated schedule with the child, starting with 3 out of every 14 overnights. The schedule would later increase to 4 out of every 14 overnights. Eventually, the graduated schedule would end with residential time divided equally (50/50).
The Lawsuit.
A few years later, Hauk sought to move out of state for a variety of good faith reasons, including availability of family to help in raising the child, lower cost of living, and better job opportunities. With this notice, Hauk filed a proposed parenting plan where the child would reside with her for the majority of the school year and spend summers and select holidays with Wuesthoff. At the time Hauk sought to relocate, the current parenting plan had not yet graduated to a 50/50 schedule. Wuesthoff filed an objection to the move and the lawsuit ensued.
In large part, the outcome of this case hinged on which legal framework the Court would apply to evaluate Hauk’s relocation request.
Hauk argued she was the primary residential parent with more than 55% of residential time under the current phase of the Parenting Plan. Washington’s child relocation act provides a rebuttable presumption to the primary residential parent in favor of a proposed relocation. This means the burden shifts to the objecting parent to prove why the relocation should not take place and the Court must evaluate certain statutory factors set forth in the relocation act. Those statutory factors include consideration of evidence related to the parent’s needs, in addition to the impact of the move on the child. Both the rebuttable presumption and these statutory factors only apply when the primary parent has more than 55% of residential time.
Wuesthoff argued the Court was required to take a wholistic read of the Parenting Plan to determine the residential time percentage and not focus only on the current phase of the graduated plan. The standard for a relocation is different (and often more challenging) if both parents have substantially equal residential time (arrangements with 45% or more of the child’s residential time spent with each parent). In those circumstances, a moving parent is not entitled to the rebuttable presumption, and they must demonstrate the move is in the best interest of the child—rather than the statutory factors (e.g., the Court cannot consider the needs of a parent in favor of the move).
Both the Trial Court and the Court of Appeals agreed with Wuestroff. At trial in this case, the Court took a wholistic view of the plan and calculated Wuestoff’s residential time as 46.9%. Each parent’s residential time is calculated based on the amount of time designated in the parenting plan, not just the current phase or a portion of the plan. Hauk and Wuestoff were found to have substantially equal residential time, the rebuttable presumption in favor of relocation did not apply, and ultimately, Hauk’s relocation request was denied.
Key Takeaways
When crafting a parenting plan, give due consideration to the long-term implications which may arise in the seasons of life. Legal representation can help you identify potential legal ramifications of the schedules proposed and develop creative solutions to fit your goals.
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