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GOURAS & AMIS P.L.L.C.

Child Custody Information:
About Relocation

 

In our highly mobile society the issue of the primary residential parent relocating to a different area comes up frequently. Conflicting opinions had been issued by the different state Courts of Appeals on whether or not to permit relocations. The Washington State Supreme Court has also weighed in on the issue. Structure was placed upon the issue of relocation by the Washington State legislature and there is now a statutory set of procedures that must be followed in relocation cases.

Notice must be given when a child will be relocated outside of their school district and the non-residential party is entitled to object. When a relocation is to take place within the child�s same school district, notice must be given, but no objection to the relocation is allowed. RCW 26.09.450 provides as follows:

Notice -- Relocation within the same school district.

  • (1) When the intended relocation of the child is within the school district in which the child currently resides the majority of the time, the person intending to relocate the child, in lieu of notice prescribed in RCW 26.09.440, may provide actual notice by any reasonable means to every other person entitled to residential time or visitation with the child under a court order.
  • (2) A person who is entitled to residential time or visitation with the child under a court order may not object to the intended relocation of the child within the school district in which the child currently resides the majority of the time, but he or she retains the right to move for modification under RCW 26.09.260.

A relocation case is started by delivering a Notice of Intent to Relocate and a Proposed Parenting Plan on the non-primary residential parent (the parent with whom the child does not reside the majority of the time). Subject to exceptions set out in the statute, the Notice and Proposed Parenting Plan must be given 60 days in advance of the relocation. A specific warning must be used in the Notice, and it is advisable to use the mandatory form for the notice. RCW 26.09.440 provides as follows:

Notice -- Contents and delivery.

  • (1) Except as provided in RCW 26.09.450 and 26.09.460, the notice of an intended relocation of the child must be given by:
    • (a) Personal service or any form of mail requiring a return receipt; and
    • (b) No less than:
      • (i) Sixty days before the date of the intended relocation of the child; or
      • (ii) No more than five days after the date that the person knows the information required to be furnished under subsection (2) of this section, if the person did not know and could not reasonably have known the information in sufficient time to provide the sixty-days' notice, and it is not reasonable to delay the relocation.
  • (2)(a) The notice of intended relocation of the child must include: (i) An address at which service of process may be accomplished during the period for objection; (ii) a brief statement of the specific reasons for the intended relocation of the child; and (iii) a notice to the nonrelocating person that an objection to the intended relocation of the child or to the relocating person's proposed revised residential schedule must be filed with the court and served on the opposing person within thirty days or the relocation of the child will be permitted and the residential schedule may be modified pursuant to RCW 26.09.500. The notice shall not be deemed to be in substantial compliance for purposes of RCW 26.09.470 unless the notice contains 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."
  • (b) Except as provided in RCW 26.09.450 and 26.09.460, the following information shall also be included in every notice of intended relocation of the child, if available:
    • (i) The specific street address of the intended new residence, if known, or as much of the intended address as is known, such as city and state;
    • (ii) The new mailing address, if different from the intended new residence address;
    • (iii) The new home telephone number;
    • (iv) The name and address of the child's new school and day care facility, if applicable;
    • (v) The date of the intended relocation of the child; and
    • (vi) A proposal in the form of a proposed parenting plan for a revised schedule of residential time or visitation with the child, if any.
  • (3) A person required to give notice of an intended relocation of the child has a continuing duty to promptly update the information required with the notice as that new information becomes known.

If the non-primary residential parent does not object within 30 days, the parent providing the Notice may enter their proposed Parenting Plan as a final order. If the non-primary residential parent does object, the must start a court case by filing an Objection to Relocation and Petition for Modification of Parenting Plan. If they fail to file their objection within thirty days, they may lose the case by default. RCW 26.09.480 provides as follows:

Objection to relocation or proposed revised residential schedule.

(1) A party objecting to the intended relocation of the child or the relocating parent's proposed revised residential schedule shall do so by filing the objection with the court and serving the objection on the relocating party and all other persons entitled by court order to residential time or visitation with the child by means of personal service or mailing by any form of mail requiring a return receipt to the relocating party at the address designated for service on the notice of intended relocation and to other parties requiring notice at their mailing address. The objection must be filed and served, including a three-day waiting period if the objection is served by mail, within thirty days of receipt of the notice of intended relocation of the child. The objection shall be in the form of: (a) A petition for modification of the parenting plan pursuant to relocation; or (b) other court proceeding adequate to provide grounds for relief.

While relocation cases are expedited, each county handles the cases differently. In King County, for example, you will receive a trial before a judge in approximately four months. While this is considered to be very fast, it often will not address the question of where the child will reside during the four month wait. In general, unless the court grants permission, the relocating party is not permitted to move for the first 30 days. If the objecting party wants to restrain the relocating parent from moving prior to trial, they must note a motion to restrain the move within 15 days of the service of their objection. RCW 26.09.480(2) addresses this issue as follows:

(2) Unless the special circumstances described in RCW 26.09.460 apply, the person intending to relocate the child shall not, without a court order, change the principal residence of the child during the period in which a party may object. The order required under this subsection may be obtained ex parte. If the objecting party notes a court hearing to prevent the relocation of the child for a date not more than fifteen days following timely service of an objection to relocation, the party intending to relocate the child shall not change the principal residence of the child pending the hearing unless the special circumstances described in RCW 26.09.460(3) apply.

In deciding whether to grant a temporary relocation before trial, the court looks to the likelihood that the parent seeking to relocate would prevail at trial. The court may also temporarily restrain the relocation if proper notice was not given, there was a relocation without agreement, or the moving party would be unlikely to prevail at trial. RCW 26.09.510 provides as follows:

Temporary orders.

  • (1) The court may grant a temporary order restraining relocation of the child, or ordering return of the child if the child's relocation has occurred, if the court finds:
    • (a) The required notice of an intended relocation of the child was not provided in a timely manner and the nonrelocating party was substantially prejudiced;
    • (b) The relocation of the child has occurred without agreement of the parties, court order, or the notice required by RCW 26.09.405 through 26.09.560 . . .; or
    • (c) After examining evidence presented at a hearing for temporary orders in which the parties had adequate opportunity to prepare and be heard, there is a likelihood that on final hearing the court will not approve the intended relocation of the child or no circumstances exist sufficient to warrant a relocation of the child prior to a final determination at trial.
  • (2) The court may grant a temporary order authorizing the intended relocation of the child pending final hearing if the court finds:
    • (a) The required notice of an intended relocation of the child was provided in a timely manner or that the circumstances otherwise warrant issuance of a temporary order in the absence of compliance with the notice requirements and issues an order for a revised schedule for residential time with the child; and
    • (b) After examining the evidence presented at a hearing for temporary orders in which the parties had adequate opportunity to prepare and be heard, there is a likelihood that on final hearing the court will approve the intended relocation of the child.

In determining the final outcome of the case, there is presumption that a parent may relocate, but the presumption may be rebutted by the factors set forth in the statute. RCW 26.09.520 provides as follows:

Basis for determination.

The person proposing to relocate with the child shall provide his or her reasons for the intended relocation. There is a rebuttable presumption that the intended relocation of the child will be permitted. A person entitled to object to the intended relocation of the child may rebut the presumption by demonstrating that the detrimental effect of the relocation outweighs the benefit of the change to the child and the relocating person, based upon the following factors. The factors listed in this section are not weighted. No inference is to be drawn from the order in which the following factors are listed:

  • (1) The relative strength, nature, quality, extent of involvement, and stability of the child's relationship with each parent, siblings, and other significant persons in the child's life;
  • (2) Prior agreements of the parties;
  • (3) Whether disrupting the contact between the child and the person with whom the child resides a majority of the time would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation;
  • (4) Whether either parent or a person entitled to residential time with the child is subject to limitations under RCW 26.09.191;
  • (5) The reasons of each person for seeking or opposing the relocation and the good faith of each of the parties in requesting or opposing the relocation;
  • (6) The age, developmental stage, and needs of the child, and the likely impact the relocation or its prevention will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child;
  • (7) The quality of life, resources, and opportunities available to the child and to the relocating party in the current and proposed geographic locations;
  • (8) The availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent;
  • (9) The alternatives to relocation and whether it is feasible and desirable for the other party to relocate also;
  • (10) The financial impact and logistics of the relocation or its prevention; and
  • (11) For a temporary order, the amount of time before a final decision can be made at trial.

Many judges have publically stated that they find relocation cases to be some of their most difficult cases. While there is a rebuttable presumption that a parent can relocate, the courts are very well aware that a relocation of a child, especially one that is a substantial distance, will change the relationship of the parents with the child forever. It is often difficult to settle relocation cases as they pose an all-or-nothing proposition and there is often no middle ground.

A competent attorney should be found early in the case whether a parent is seeking to relocate or is seeking to object to the relocation. Gouras & Amis attorneys have been handling relocation cases both before and after the relocation statute went into effect.

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Also refer to:

INTERSTATE CUSTODY CASES

 

INTERNATIONAL CUSTODY CASES

 

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Gouras & Amis PLLC is a family law firm that practices exclusively in the area of family law. Gouras & Amis attorneys have over 25 years experience in both settling and litigating family law cases.

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Gouras & Amis PLLC
Family Law Attorneys
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Seattle-Tacoma, Washington area

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Kent, Washington 98032

 
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