Supreme Court Overturns Kitsap Rulings in Custody Relocation Case

The Washington Supreme Court ruled Thursday that when parents share a phased-in parenting plan, courts deciding a child relocation dispute must measure each parent's residential time based on the phase in effect when the relocating parent serves notice of the intended move, not on the plan as a whole.

The 5-4 decision in In re Marriage of Hauk, filed August 6, reverses a split Court of Appeals ruling and sends a Kitsap County custody dispute back to the superior court for further fact-finding.

The case arose from the dissolution of the marriage of Arynn Hauk and Brandon Wuesthoff, whose daughter, identified in court records as T.W., was two years old when Kitsap County Superior Court entered a parenting plan following the couple's divorce trial. 

The plan phased in the father's residential time in four stages, culminating in an equal 50/50 split of overnights once the child started kindergarten.

Nearly two years after the plan was entered, Hauk filed notice of her intent to move with the child to Virginia, proposing to live near her fiancé's children from a previous marriage and citing a lower cost of living and better job opportunities there. 

At that point the parties were in the plan's third phase, under which Wuesthoff had six of every 14 overnights, about a year and four months before the scheduled increase to equal time.

The dispute turned on Washington's Child Relocation Act, which gives a parent proposing relocation a rebuttable presumption that the move will be permitted. 

That presumption disappears when the parents share "substantially equal residential time," defined as each parent having at least 45 percent of the child's time.

At trial, Hauk argued she was entitled to the presumption because she had 57 percent of residential time under the current phase. 

The trial court instead calculated residential time over the entire life of the plan through the child's 18th birthday, found that Wuesthoff would have 46.9 percent of overnights, and concluded the presumption did not apply. 

After weighing the statutory factors, the court denied relocation, though it noted that if the presumption had applied, Wuesthoff may not have overcome it. 

After Hauk informed the court she still intended to move, the court entered a modified plan, which remains in place, under which T.W. spends school years with her father in Washington and summers with her mother in Virginia. 

The Court of Appeals affirmed in a split decision, with Judge Veljacic dissenting.

Writing for the majority, Justice Colleen Melody said the statute's use of present-tense language directs courts to the family's current circumstances rather than "speculation about the future." 

The majority also reasoned that counting future, not-yet-spent time would frequently nullify the relocation presumption in phased plans and would create problems in plans where increased residential time is conditioned on requirements such as domestic violence treatment or supervised visitation, a concern raised by amici including the Northwest Justice Project and the King County Bar Association's Domestic Violence Legal Advocacy Project.

Justice G. Helen Whitener dissented, joined by Justices Charles Johnson, Sheryl Gordon McCloud, and Salvador Mungia. 

The dissent argued that a parenting plan is a forward-looking court order and that courts should calculate residential time across the entire plan, including automatic future phases. 

Whitener warned the majority's rule could freeze a presumption in one parent's favor even if notice were served a day before a phase change, calling such a result unjust.

The majority acknowledged the trial court's findings that T.W. was "extremely well-bonded with both parents" and that the parenting from both was exceptional.

The ruling does not decide whether Hauk may ultimately relocate with her daughter. The Supreme Court found the record incomplete, noting it does not show the date Hauk served her relocation notice, and that the trial court never determined whether Wuesthoff crossed the 45 percent threshold under the current phase once holiday time was counted, as he argued. 

The case returns to Kitsap County Superior Court to make those findings. 

If the presumption applies, the justices directed the trial court to hold a new fact-finding hearing based on the child's current circumstances, given the time that has passed on appeal.