The United States has always been a very mobile society. Often families have to move due to employment changes or health or educational issues. However, dissolution and legal separation by their very nature require a change of residence of only one parent (if the parents have lived together).
How do families that have - until very recently - lived under one roof handle the transportation and travel issues that arise in a divorce? What advice can the legal practitioner give to his or her clients in such situations?
Residential Exchange Issues
When parents move into separate residences, the child will need to be transported between the homes.1 If a parenting plan, temporary or otherwise, is not yet in place, the parties should communicate in writing and set up an agreed schedule and location for exchanges. It is important that this agreement be in writing, even if it just consists of exchanged emails, as it may be useful in court at a later date in determining the parents' historical practice regarding exchanges.
A proposed plan should be very specific regarding exchanges. It is usually best for the parent who has the child to drop off the child, rather than having the other parent pick up the child. This way, the other parent is not left waiting while the child tries to find his or her shoes and backpack, for example. However, if the parent who has the child is time-challenged, the receiving parent may want to do all of the pickups and drop-offs so the child is transferred in a timely manner.
It also is beneficial to set out exact exchange locations and times, and to require each parent to be prompt, including consequences for late return and/or failure of the receiving parent to appear at the exchange location. For example, the parenting plan can include a provision that the other parent only has to wait with the child for 15 minutes. Attention to detail on this issue can save much headache and potential litigation later.
Failure to Return a Child
What if a child is not returned after a visitation? A parent's options are very situation-specific. First, is the parent's name on the child's birth certificate? In paternity cases, if the father's name is not on the birth certificate, then the father has no legal rights to the child. The father would have to file a petition to establish paternity and request a parenting plan.
In same-sex relationship cases, the same issue arises. A parent who is not named on the birth certificate can file a petition to establish maternity or paternity. The Uniform Parentage Act applies equally to parents of either sex and the parent-child relationship can be established by several means.2
If the child has been residing with a relative or friend and the parent takes the child and will not return the child to the third-party custodian, it is necessary to have a court order stating that the child shall reside with the third-party custodian. The third party would have to file a petition to establish a third-party custodianship over the child. The third party would have to prove detriment to the child if the child remained with the parent.3
If two parents are on the birth certificate and they have not filed for legal separation or dissolution, not much can be done without filing a court action if one fails to return the child. Police typically are not willing to intervene in a custody dispute.
A parent can call Child Protective Services if abuse is suspected, or file a petition, a motion for temporary orders and a motion for an ex parte order to have the child returned. Even after the action is filed and an order obtained, however, the police will typically decline to become involved without a writ of habeas corpus. The police may instead simply ask the other parent if he or she is willing to return the child. If there is no clear danger to the child, the police usually will not remove the child without a writ.
The parent must consider the consequences on the child of obtaining a writ and forcibly removing him or her from the other parent's home. In one of our cases, a SWAT Team was sent in to forcibly remove a child. This was, of course, very traumatic for the child. Therefore, as in any family law proceeding, the parent has to consider the best interests of the child and the impact on the child of remaining in the current environment until the issue can be resolved in court.
However, if the other parent is mentally ill, the child is believed to be in imminent danger, the other parent is moving repeatedly across the county to hide or is trying to disappear with the child, then, as in the case above, a SWAT Team may be the necessary response.
Vacation Travel Issues
On a lighter note, if one parent wants to take a vacation with the child, the vacation provisions of the parenting plan have to be followed. Drafting detailed vacation allocations is worth the effort. Allocating a specific amount of time to each parent is simple, but what happens if the parents' requested vacation dates conflict? It helps to require each parent to submit proposed vacation dates in writing at least 60 days in advance of the proposed vacation or to simply provide that vacation dates shall be exchanged by May 1.
A parenting plan provision that allocates a date to the first parent to claim it is problematic. This often creates a "race" between the parents to claim dates well in advance and even before travel plans have been formalized. A better practice is to provide that one parent shall have priority in odd years and the other in even years, and that if no notice is given by the chosen date, that parent will lose priority for that year. This solves the problem of one parent waiting until the last second to submit a vacation request after the other parent has already purchased airline tickets.
It also is important that both parents are able to reach the children if needed while they are on vacation. For domestic vacations, it is usually sufficient to state in the parenting plan that the vacationing parent shall provide the names, addresses and phone numbers where the child will be each evening and contact information for the traveling parent.
For international travel, in most cases both parents must sign the child's passport application. The parenting plan should require that the parties cooperate in obtaining the child's passport, and state which parent shall hold the passport and that it should be exchanged in a timely manner based on the needs of each parent.
More importantly, the parenting plan should consider where the parent may be traveling with the child. The Hague Convention on the Civil Aspects of International Child Abduction mandates the return of a "habitually resident" child wrongfully removed from the child's home country. However, not all countries have signed the Hague Convention and, if a given country is not a signatory, then a parent is limited to working through diplomatic channels if they want the child returned.
A list of signatories to the Hague Convention can be accessed at: http://travel.state.gov/abduction/resources/congressreport/congressreport_1487.html. It is prudent to include language similar to the language below in any parenting plan when foreign travel to a non-Hague country is even a remote possibility:
International Travel: Express written permission is required from the other parent if either parent wishes to travel internationally with the child. The parent wishing to travel internationally must advise the other parent in writing at least one month in advance, providing a proposed itinerary and contact information for each day out-of-country. Unless the parent receives written authorization, neither parent may travel with the child to a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. In the absence of express written permission from the other parent to travel internationally, the child may not travel internationally. If written permission is given to travel internationally, both parents shall cooperate with obtaining the child's passport and any necessary visas. The U.S. is the habitual residence of the child and a refusal to return the child to the U.S. by either parent shall be conclusively deemed wrongful under the Convention.
You should also remember that the Division of Child Support will not allow a parent to be issued a passport if they owe back child support over $2,500.4 Therefore, parents should be aware that even if they obtain the child's passport, they may not be issued a passport (or allowed to renew) if they owe back child support.
The designation of the primary custodian under section 3.12 of the plan can be of great importance if one parent wants to relocate. Under RCW 26.09.520, there is a rebuttable presumption allowing the relocation of the child with the primary custodian. If a parent wants to avoid this presumption, language stating that the presumption does not apply can be added. If there is more than one child, the plan can state that each parent is the primary parent of one or more children or alternate the primary custodian status when the child is with each parent.
If a parenting plan is already in place, however, and the primary custodian wishes to move, he or she must give notice under the statute and follow the legal requirements for the move. If the plan has a shared residential arrangement, the law is unclear as to what notice requirements are mandated.
The relocation statute does not specifically address situations where parents share time equally with the children. During debate on the relocation statute, the following colloquy was listed in the legislative record: "Under such circumstances the notice requirements apply to both parties and the presumption to neither."
Although legislative clarification may ultimately be necessary for shared custody arrangements, a joint workshop of the Family Law Executive Committee of the Washington State Bar Association and the Washington State Superior Court Judge's Association, formed to address this issue, has urged the approach adopted in the colloquy.5 Further, the Court of Appeals has recently stated that by the plain language of the relocation statute the notice requirements are triggered by the intended relocation of the person "with whom the child resides a majority of the time."6 This suggests that if neither parent so qualifies, then neither can invoke the relocation statute and receive a presumption in favor of his or her move. However, as noted above, the case law is not specific and additional clarification is needed.
In the absence of a shared custody arrangement, however, the primary custodian has a presumption in favor of allowing his or her relocation. The Court of Appeals has found that the relocation statute does not violate a custodial parent's right to equal protection by restricting his or her right to travel, and does not violate the Commerce Clause or Due Process Clause of the U.S. Constitution.7
In order to legally relocate the child, the parent must give specific notice of his or her intent to relocate pursuant to RCW 26.09.440. If the other parent objects, he or she must file a notice of objection with the court within 30 days and serve notice on the custodial parent.8 The objecting parent also should simultaneously file a motion to restrain the relocation under RCW 26.09.510 pending trial on the issue.
In deciding whether to allow the relocation, the court must consider 11 specific factors outlined in RCW 26.09.520 and make specific findings on each factor.9 The court shall not consider whether the custodial parent would forego the intended move entirely if the child was not permitted to move.10
Although your client may tell you that it would be tons of fun for them to pack up the child and take off in the RV, you need to make sure the client has the ability to do so without risking legal consequences. It may not be in their best interests to go roaming with the child if they do not have the legal authority to do so.
Authors Lisa Dufour (firstname.lastname@example.org) and Kim Schnuelle (email@example.com) are senior associates with McKinley Irvin, PLLC (www.mckinleyirvin.com). They focus on complex family law cases and welcome topic suggestions or requests for future columns.
1 We will refer to one child here to simplify the discussion.
2 Uniform Parentage Act, RCW 26.26.101.
3 See RCW ch. 26.10.
4 U.S.C. 22.51.60(a)(2).
5 See 20 Washington Practice, Family and Community Property Law, ch. 33, Appendix 33-1.
6 Marriage of Farley, 164 Wn. App. 42, 58–59 (2011).
7 Momb v. Ragone, 132 Wn. App. 70 (2006).
8 RCW 26.09.480.
9 Bay v. Jensen, 147 Wn. App. 641 (2009).
10 RCW 26.09.530.