Dear Family Lawyer A column answering family law questions

"Dear Family Lawyer" is prepared by the Family Law Section of the Washington State Bar Association. 

Dear Family Lawyer: My client and his former wife have two children. The children reside with their mother the majority of the time, but my client sees his children every week and many weekends. His ex-wife was just admitted to graduate school in New Haven, Connecticut, and wants to move there. Can my client prevent that? -- Moved by my client's story

Dear Moved:

With our society seemingly becoming more mobile all the time, relocation cases are becoming more common. So common, in fact, that the Legislature passed a relocation act in the 2000 Legislative Session. The relocation act applies only to relocation of children –adults have a Constitutional right to move.

Under the relocation act, which appears at RCW 26.09.405 et seq., your client's ex-wife is required to provide written notice of the relocation to your client. Ordinarily, the notice must be provided sixty days in advance, and must include specific information, including addresses and telephone numbers, and, importantly, a proposal for a new parenting plan. The notice would ordinarily be given using the mandatory form. For specific requirements, you should review RCW 26.09.440. If your client's ex-wife fails to provide this notice, and your client wants to pursue the issue, she may be subject to sanctions, including contempt of court.

If your client is concerned about the relocation, he may be well served by objecting to the relocation whether or not he was given proper notice. To be effective, the objection must be filed with the court. The filed objection will commence an action under which the relocation and parenting plan will be adjudicated. Your client's objection should be on the mandatory form. If your client files within the prescribed period, and notes a motion for temporary orders to be heard within fifteen days from the date of service, your client's ex-wife may not relocate the children prior to the hearing. Court proceedings involving relocation are statutorily entitled to priority.

If your client does not object within thirty days of receiving notice from his ex-wife, the relocation is essentially deemed approved. At that time, either party may seek court approval on an ex parte basis for the residential schedule in your client's ex-wife's notice. Because of this provision of the act, your client should file an objection even if he agrees with the relocation but disagrees with his ex-wife's proposed parenting plan.

Although the statute contains a rebuttable presumption in favor of relocation, the court is required to weigh ten separate factors in deciding whether to allow the relocation. In appropriate cases, the court will restrain the relocation of the children.

Under the modification statute, RCW 26.09.260, a relocation is considered a "minor" modification. Although designated as "minor", most parents do not view a relocation as a minor proceeding, because it usually profoundly impacts each parent's involvement and even relationship with his or her children. While the ultimate effect on the children's well-being is debatable, there is no question that the children's relationships with normally involved parents will be significantly altered. For that reason, relocation cases require swift, considerate, and thoughtful action.

The facts of your case raise several questions you may want to explore. For instance, does your client's ex-wife have to go to school across the country, or are there better alternatives? If she will be attending a demanding professional or graduate program, will she have adequate time to care for the children? How much contact will your client be able to maintain with his children if his ex-wife relocates? What effect will relocation have on other aspects of the children's lives, such as their relationships with other relatives, friends, and extracurricular activities? How much involvement does your client want to have with his children in the future, including the possibility of becoming the primary parent?

In counseling your client, you may wish to ask him to consider the effect on the children if they were to be removed from the care of their mother, with whom they have primarily resided. You may also want to ask him to consider whether he is in a position of being able to move so that the ex-wife's graduate school plans can be accommodated while both parents continue to have access to their children.

You should also consider the effect of relocation on child support. If your client's ex-wife was formerly employed, you will need to analyze whether her return to school constitutes voluntary unemployment. If so, income will be imputed to her. There is a high likelihood that your client will need to incur long-distance transportation expenses to so he and his children can exercise residential time together. You should make certain that long-distance transportation expenses are covered in the Order of Child Support. If not, the Order of Child support will need modification. Currently, case law interpreting RCW 26.19.080 holds that is mandatory for the parents to share long-distance transportation expenses in the same proportion as the basic child support obligation.

When possible, it is generally preferable to settle instead of litigate parenting issues. As in many cases involving parenting issues, parents can lose perspective of the best interests of their children when they are focused on their own desires. When trying to negotiate a settlement, it is usually helpful if you remind the parents to focus primarily on the best interests of the children. Although almost all parents want the best for their children, it is only human for their focus to shift to themselves. Their decisions may be different when they are reminded to focus on their children's best interests. Some possible compromises may include having your client's former wife attend a graduate school that closer than a school in Connecticut. Another possible compromise might be an agreement where your client's ex-wife will return to Washington after she completes graduate school. Another possibility would be for your client to also move. It may be useful to try to steer your case into early mediation. Ultimately, your advice will have to depend on your professional and considerate judgment of the facts of the case and the personalities and needs of the parties.  

-- The Family Lawyer

If you have a question you want answered in this column, send it to "Dear Family Lawyer", WSBA Family Law Section, 2101 Fourth Avenue, Suite 400, Seattle, WA 98121-2330.

"Dear Family Lawyer" is prepared for De Novo by the Family Law Section of the WSBA. Nothing in this column is an official opinion of the Family Law Section. To learn more about or to join the Family Law Section, go to www.wsba.org/lawyers/groups/familylaw/.

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