Review of New Court Decision on Relocation of a Child after Divorce

A recent Court of Appeals opinion, In re the Matter of the Marriage of Jamie D. Miksch and Mindy R. Miksch, demonstrates a situation where an actual parenting practice took precedence over their parenting plan and the Washington Relocation Act.

The Facts

 When Jamie and Mindy divorced, they agreed to a parenting plan for their daughter which designated the mother as the primary custodian. Based on the father’s work schedule which required him to work 4 days, followed by 4 days off, the parties agreed to a plan where the child would reside with her father every other 4 days off period.  However, for the next 7 years the parents equally shared residential time with their daughter, as the child resided with her father every 4 days he had off work. Then the mother filed a notice of intent to move more than 200 miles away for a new job. The father objected to the relocation. During the course of the legal proceedings, the mother did move by herself, while the daughter continued to reside with her father on the days he was off work, and she resided with a family friend on the days he had to work. The parties agreed to a temporary parenting plan which provided that the daughter would primarily reside with her father, and the mother would receive visitation every other weekend.

The Procedure

The family law court denied the mother’s petition to relocate finding that the Relocation Act did not apply when the parents have a 50/50 parenting plan. The superior court affirmed that ruling.  The mother appealed to the Court of Appeals. The Court of Appeals Division Three affirmed the trial court.

The Issue Before the Court

Whether the language of the parenting plan that named the mother as primary parent controls when it conflicts with the parents’ actual practice of equally sharing parenting time.

The Law Applied

Washington’s Relocation Act requires the primary parent to notify the other parent if they want to relocate.  The other parent can object and the matter proceeds to trial. The law grants a rebuttable presumption in favor of permitting the relocation, so the person objecting can only stop the move by proving that the detrimental effect of the relocation outweighs the benefit of the change to the child.

The Ruling of the Court

The presumption in favor of relocation is only granted to a parent with whom the child actually resides with primarily, not to the parent named in the parenting plan as the primary parent.  This decision conflicts with a ruling on the same issue made by the Court of Appeals in Division Two, but it has not been addressed by Division One, in Seattle.

The Impact on the Family

The mother’s relocation resulted in a significant change to the mother’s residential time with her daughter, which has been reduced to visitation every other weekend.  The child’s time with her father remains the same, which should not disrupt the child’s school plan.

What If?  

Numerous factors may have changed the outcome of this case. For example, in any relocation situation it is essential to follow the Relocation law for providing notice or objection, or rights can be lost.  The Bellevue family law lawyers at The Offices of Molly B. Kenny can assist you and help protect your rights whenever a post-divorce relocation issue arises.

Molly B. Kenny
Founder and Principal Divorce Attorney
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