Amanda Orse (pellanda) v. Ryan Schwarder ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
February 7, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In Re the Matter of:
No. 48338-6-II
AMANDA LEANN PELLANDA (formerly Orse).
Appellant,
v.
RYAN GARRETT SCHWARDER, UNPUBLISHED OPINION
Respondent.
SUTTON, J. — Amanda Pellanda (fka Amanda Orse) appeals the trial court’s order denying
relocation and order establishing a 50/50 permanent residential schedule for her three minor
children.
We hold that the trial court erred in ruling that Amanda Pellanda was not the primary parent
and was not entitled to a rebuttable presumption favoring relocation. This error was compounded
when the trial court entered findings of fact on relocation which are not supported by substantial
evidence and further erred by denying her relocation petition. In addition, the trial court erred
when it entered a 50/50 permanent residential schedule based on findings of fact that are not
supported by substantial evidence. Thus, we reverse the trial court’s order denying relocation and
the final parenting plan order establishing a 50/50 permanent residential schedule and remand. On
remand, we require that this matter be assigned to a different trial judge and that the matter be
handled as expeditiously as possible. And we instruct the trial court to properly apply the primary
No. 48338-6-II
parent designation and rebuttable presumption under RCW 26.09.520, and enter a new permanent
residential schedule after considering all factors under RCW 26.09.187(3).
FACTS
I. BACKGROUND
Amanda Orse and Ryan Schwarder began a relationship in late 2005. They had three
children: R.S., A.S., and S.S.1 When the relationship ended in October 2013, Ryan2 told Amanda
to move out and take the children. Amanda and the children moved in with Amanda’s parents.
Amanda met Brendan Pellanda in August 2014. Amanda and Pellanda were married in
August 2015. Pellanda serves in the United States Army, and was transferred to Fort Sill,
Oklahoma. If he had declined the transfer, Pellanda would have been required to leave the military.
He earned $4500 a month.
Amanda and Pellanda found a home in Lawton, Oklahoma near Fort Sill where they hoped
to relocate. Amanda had been working as a dispatcher earning $15 per hour. Amanda and Pellanda
investigated Lawton, Oklahoma and believed that her job prospects were good because there was
a large military community.
II. PROCEDURAL HISTORY
A. NOTICE TO RELOCATE AND TEMPORARY PARENTING PLAN
In April 2015, Amanda filed a notice of her intent to relocate with the children to Oklahoma
to join Pellanda after their wedding. She proposed a parenting plan designating her as the primary
1
We refer to the minor children by their initials to protect their privacy.
2
For clarity, we refer to the parties by their first names and we mean no disrespect.
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parent, and provided Ryan with residential time every other Christmas, during spring break, and
for three weeks in July for the first summer with increasing summer residential time as the children
became older. She also agreed to make the children available when Ryan or other family members
came to visit. Although Ryan largely agreed with the parenting plan, he filed an objection to the
relocation based on the detrimental impact the relocation would have on the children.
Because the parties had not previously entered a residential schedule or parenting plan, at
the end of June, the trial court ordered a week on/week off (50/50) temporary residential schedule
and designated both parents as the custodial parents. This temporary residential schedule was in
effect until the relocation petition could be heard in early October.
B. RELOCATION HEARING
At the relocation hearing, the trial court heard the following testimony and evidence.
Amanda testified that during the relationship, she paid the rent and utilities, took the children to
their appointments, and did the grocery shopping. While Amanda worked during the day, Ryan
watched the children. Ryan did not contribute financially to the household.
When the relationship ended in October 2013, R.S. was six years old, A.S. was two years
old, and S.S. was three months old. The children lived with Amanda full time until the entry of
the temporary parenting plan order in June 2015. Ryan provided child care during the weekdays
because he did not have a job. Amanda dropped the children off at Ryan’s in the morning and she
picked them up in the evening after she finished work because he did not have a car. The children
were also scheduled to stay with Ryan every other weekend. Ryan began to refuse to watch the
children during the week, often giving short notice. As a result, in April 2014, Amanda enrolled
the children in full-time daycare and advised Ryan that she was doing so because he consistently
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refused to watch the children with little or no notice during times when Amanda was working. He
did not object to placing the children in full-time daycare and he did not contribute to the cost of
daycare.
After April 2014, Amanda and Ryan agreed that the children would spend every
Wednesday night with Ryan in addition to every other weekend. Amanda continued to provide
transportation for the children during Ryan’s residential time. During this period, if the children
were ill or if Ryan chose not to exercise his residential time for another reason, the children stayed
with Amanda. Amanda continued to pay for the children’s daycare. Pellanda testified that Ryan
cancelled his residential time on many Wednesdays and weekends, for Thanksgiving and
Christmas holidays in 2014, and for the 2015 Super Bowl.
Ryan’s employment history was sporadic–he worked an average of 30 hours a month from
2001-2013. In early 2007, he sustained a back injury on the job and filed a claim with the
Department of Labor and Industries. The claim was closed three months later due to Ryan’s lack
of medical follow-up. In 2011 and 2013, Ryan sought medical care for back pain. In early 2014,
Ryan had back surgery, and at the end of that year, he was released to return to work. At the time
of the hearing, Ryan had been working for three weeks.
Ryan has another child, D.C., from a prior relationship. Amanda met D.C. once in 2005.
R.S., A.S., and S.S. have never met D.C. D.C. was six years old when Ryan and D.C.’s mother
ended their relationship; at the time of the hearing, D.C. was age 15 and lived in Alaska. Ryan
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began dating his current girlfriend, Jenny Lee, 3 soon after he and Amanda ended their relationship.
Amanda’s parents, Pellanda’s mother, Ryan’s mother and her fiancé, and Lee all live within
Tacoma or a neighboring county. Amanda testified that the children’s extended family could visit
the children in Oklahoma and that she would encourage communication between the children and
Ryan and with the extended family.
C. TRIAL COURT’S ORDERS
1. Relocation Rebuttable Presumption and Order Denying Relocation4
At the fact-finding hearing, the trial court ruled that no parent was the primary residential
parent and Amanda was not entitled to the rebuttal presumption under RCW 26.09.520. III VRP
at 10.
The trial court found that
this is a 50/50 residential time situation.
....
[E]even if the petitioner is deemed the primary parent, which would create a
rebuttable presumption that the intended relocation would be permitted when the
primary residential parent is the person intending to relocate, the presumption has
been rebutted as the [c]ourt has addressed Factors I through 10 listed in RCW
26.09.520. Factor 11 is not addressed, as the trial is the final decision making
process.
Alternatively, if the relocation factors had applied, the [c]ourt finds in favor
of the respondent/father and that based upon the following factors, the detrimental
effect of allowing the children to move with the relocating person does outweigh
the benefits of the move to the children and the relocating person.
3
The trial court referred to Lee as Ryan’s fiancé, but the testimony at trial established that Lee was
Ryan’s girlfriend.
4
Order on Objection to Relocation/Modification of Custody Decree/Parenting Plan/Residential
Schedule (Nov. 6, 2015). CP at 29-36.
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No. 48338-6-II
Clerk Papers (CP). The trial court found that it was not in the children’s best interest to relocate
from Washington, given their relationship with Ryan and other nearby family members. The trial
court also found that denying the relocation will allow Amanda and Ryan to build and stabilize
their new relationships. Although the trial court found Ryan’s lack of a stable living arrangement
“not encouraging,” the court also found that Ryan had made the visitation arrangement work. III
Verbatim Report of Proceedings (VRP) at 7. Based on its findings of fact, the trial court denied
the petition to relocate.
2. Permanent Residential Schedule5
As to the permanent residential schedule, the trial court copied the findings of fact from
the relocation order and adopted them verbatim as the findings of fact for the residential schedule.
Compare CP at 30-32 with CP at 3-6. The trial court did not make separate findings of fact after
considering the factors under RCW 26.09.187(3). At the time of the hearing, the children were
ages 8, 4, and 2. The trial court found that
over the nine years, the parents’ involvement with caring for the children has been
conditional on circumstances in regards to their relationship, which dictated their
parental responsibilities. These circumstances included their work schedules and
their physical ability to work. The [c]ourt notes that the youngest child, [S.S], is
two years old, which means that most of these issues did not disrupt many years of
their union, as evidenced by three beautiful young [children].
Following the end of the parties’ relationship in October 2013 the children
resided with mother and spent every other weekend with father. Father provided
care during the day while the mother worked.
In April 2014 mother placed the children in full-time daycare and father
continued to see the children every other weekend and began seeing them every
5
Findings of Fact and Conclusions of Law on Petition for Residential Schedule/Parenting Plan
or Child Support (Nov. 6, 2015). CP 1-6.
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No. 48338-6-II
Wednesday. This schedule continued until June 2015 when the court entered a
temporary order.
....
The [c]ourt finds the present alternating week-on and week-off residential
schedule creates brief and substantially equal intervals of time. The parties’
parenting relationship was and has been a substantially equal-time parenting
residential schedule, essentially a 50/50 residential time split situation, and case
law indicates that an exact mathematical precision is not determinative.
CP at 4-5 (emphasis added).
The trial court concluded that “this is a 50/50 residential time situation where both parties
are the custodians of the children.” CP at 6. The trial court adopted a 50/50 permanent residential
schedule based on its earlier findings and the temporary residential schedule. Amanda appeals.
ANALYSIS
I. STANDARD OF REVIEW
We review a trial court’s decision to deny relocation and to enter a residential schedule in
a permanent parenting plan for an abuse of discretion. In re Marriage of McNaught, 189 Wn.
App. 545, 552, 359 P.3d 811 (2015), review denied, 185 Wn.2d 1005 (2016); see also In re
Marriage of Horner, 151 Wn.2d 884, 893, 93 P.3d 124 (2004). An abuse of discretion occurs
when a decision is manifestly unreasonable or based on untenable grounds or untenable reasons.
In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012). “‘A court’s decision is
manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the
applicable legal standard; it is based on untenable grounds if the factual findings are unsupported
by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do
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No. 48338-6-II
not meet the requirements of the correct standard.’” Horner, 151 Wn.2d at 894 (quoting In re
Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997)).
We review a trial court’s findings of fact to determine if they are supported by substantial
evidence. In re Marriage of Raskob, 183 Wn. App. 503, 510, 334 P.3d 30 (2014). Substantial
evidence is that which is sufficient to persuade a fair-minded individual of the truth of the matter
asserted. Katare, 175 Wn.2d at 35. The party challenging the findings of fact has the burden of
demonstrating that substantial evidence does not exist. In re Marriage of Grigsby, 112 Wn. App.
1, 9, 57 P.3d 1166 (2002).
We review de novo whether the trial court’s findings of fact support the trial court’s
conclusions of law. Raskob, 183 Wn. App. at 510. We do not reweigh evidence on appeal. In re
Marriage of Kim, 179 Wn. App. 232, 244, 317 P.3d 555, (2014). We review a trial court’s
application of the law de novo. In re Marriage of Wehr, 165 Wn. App. 610, 613, 267 P.3d 1045(2011).
II. RELOCATION
A. LEGAL PRINCIPLES
Washington’s Child Relocation Act (CRA), RCW 26.09.405-.560, adopts a rebuttable
presumption to allow relocation of the parent “with whom the child resides a majority of the time.”
RCW 26.09.430, .520; see In re Parentage of R.F.R., 122 Wn. App. 324, 330, 93 P.3d 951 (2004);
see also Horner, 151 Wn.2d at 895. The CRA shifts the analysis away from the best interests of
the child to an analysis that focuses on the interests of the child and the relocating person. Horner,
151 Wn.2d at 895. The CRA incorporates and relies upon the traditional presumption that a fit
parent acts in his or her child’s best interest, including when that parent relocates the child. Horner,
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No. 48338-6-II
151 Wn.2d at 895. Rather than focusing on the child’s best interests, RCW 26.09.520 gives import
to the “interests and circumstances of the relocating person:”
[C]onsideration of all the factors is logical because they serve as a balancing test
between many important and competing interests and circumstances involved in
relocation matters. Particularly important in this regard are the interests and
circumstances of the relocating person. Contrary to the trial court’s repeated
references to the best interests of the child, the standard for relocation decisions is
not only the best interests of the child.
Horner, 151 Wn.2d at 894 (footnote omitted).
The CRA requires a trial court to analyze eleven factors to determine if relocation should
be permitted. Horner, 151 Wn.2d at 887-88. The eleven relocation factors are:
(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.
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RCW 26.09.520. The factors are equally important because they are neither weighted nor listed in
any particular order. RCW 26.09.520. Of these eleven factors, four factors focus on the child’s
interest. Horner, 151 Wn.2d at 894 n.9. A trial court must document its consideration and enter
specific findings of fact on each factor under RCW 26.09.520. Horner, 151 Wn.2d at 895-96.
Under the CRA, a person who resides a majority of the time with a child initiates the
relocation process by serving notice to all persons entitled to residential time or visitation with the
child. RCW 26.09.430. If a person who is entitled to residential time or visitation with the child
files an objection to the relocation, the person seeking to relocate the child may not do so without
court approval. RCW 26.09.480(2). Upon a proper objection, a trial court must conduct a fact-
finding hearing. Wehr, 165 Wn. App. at 612. To rebut the presumption, an objecting person must
demonstrate by a preponderance of the evidence “that the detrimental effect of the relocation
outweighs the benefit of the change to the child and the relocating person, based upon the [child
relocation] factors.” RCW 26.09.520; Wehr, 165 Wn. App. at 613.
B. PRIMARY PARENT DESIGNATION AND THE PRESUMPTION
The trial court erred in ruling at the relocation hearing that neither parent was the primary
parent of the children. The trial court based its ruling on the temporary residential schedule, and
its finding of fact that “this is a residential time situation where both parties are the custodians of
the children.” CP at 32 (FOF 2.3(vi)). The trial court’s findings of fact—that no parent was the
primary caregiver and that they shared equal parenting functions during their relationship—was
not supported by substantial evidence.
The temporary 50/50 residential schedule had only been in place for four months, from
June 2015 until the October 2015 relocation hearing. And the children had lived full time with
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No. 48338-6-II
Amanda for 21 months from October 2013 until June 2015, when the court entered the temporary
parenting plan. During this 21-month period, when the children were ill or when Ryan chose not
to exercise his time with the children, Amanda had to take time from work to care for the children.
Other times, Amanda’s parents provided child care. Amanda could not consistently rely on Ryan
to provide child care during the days she worked even though he was unemployed.
After April 2014, when she enrolled the children in daycare, Ryan was scheduled to see
the children every other weekend and every Wednesday night. But Amanda and Pellanda testified
that Ryan cancelled his residential time on many Wednesdays and weekends, and for some
holidays. At the relocation hearing, Amanda testified that she did not know where Ryan lived, but
that he had lived primarily with his mother and also claimed to stay with friends and with his new
girlfriend.
We hold that the trial court’s findings of fact are not supported by substantial evidence and
the findings do not support the trial court’s conclusion that Amanda was not the primary parent
with whom the children spent the majority of time under RCW 26.09.430. We also hold that the
trial court’s findings of fact do not support its conclusion that Amanda was not entitled to a
rebuttable presumption favoring relocation under RCW 26.09.520, as discussed below.
C. REBUTTING THE PRESUMPTION
By not designating Amanda as the primary parent entitled to a rebuttable presumption
favoring relocation, the trial court evaluated the relocation factors under RCW 26.09.520 using the
wrong lens. As the primary parent of the three children, Amanda was entitled to the presumption
favoring relocation including the traditional presumption that a fit parent acts in her children’s best
interest, including when that parent relocates with the children. Horner, 151 Wn.2d at 895
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No. 48338-6-II
The trial court improperly focused on the parties’ nine year relationship, which time period
included a majority of years before two of the three children were born. And the trial court further
erred by not properly evaluating the evidence in light of the relocation factors under RCW
26.09.520. A trial court must consider both the interests of the child and the interests of the
relocating parent. RCW 26.09.520; Horner, 151 Wn.2d at 895.
Ryan testified that the children need their father’s love, they need his kisses and hugs.
Other than stating that Amanda has never been to Oklahoma, Ryan did not produce any evidence
that the relocation would be detrimental to Amanda. See RCW 26.09.520; see also McNaught,
189 Wn. App. at 549. Ryan testified that the relocation would be detrimental to the children
because the schools in Oklahoma are not as good and the move would affect their stability in
school. But only the oldest child was school age. Ryan also testified that he would not be able to
do activities with them, the children will not get the care or bonding they need, and the children
will be away from their family. The trial court found that the schools in both states were
comparable.
The trial court made only one positive finding that indicates it considered Amanda’s
interest in relocating: “[Amanda] is now married to a service member and wants to relocate to
build what she sees as a more stable life for herself and the three [children].” CP at 34 (FOF 2.3.5).
The trial court made several findings criticizing Amanda (and her new husband) for thier decision
to relocate with the children. CP at 33 (FOF 2.3.1). None of the trial court’s findings criticizing
Amanda and her husband point to any reason why the relocation would not benefit Amanda and
her children given her interest in relocating to join her new husband. The trial court failed to
adequately address the children’s interests and Amanda’s interests when evaluating the relocation
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factors. Although we do not reweigh the evidence on appeal, we briefly discuss the trial court’s
findings under a few relocation factors.
1. Child’s Relationship
Under the first relocation factor, a trial court must evaluate “[t]he 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.” RCW 26.09.520(1). Instead of evaluating all
facets of this factor, the trial court’s findings of fact addressed (1) the parties’ nine year relationship
and the daily care by the parents, (2) that Amanda did not visit Oklahoma, (3) that she filed the
request to relocate and got married before a final decision by the court, (4) that she did not fully
investigate her benefits as a military wife, (5) Pellanda’s lack of prior experience as a parent; (6)
that the parties’ new relationships needed time to stabilize, and (7) Ryan’s inability to maintain
employment or have a stable living arrangement. CP at 33 (FOF 2.3.1).
But the trial court’s findings of fact did not specifically address each facet of the first
relocation factor—the strength, nature, quality and extent of involvement and stability of each of
the children’s relationship with Amanda and then with Ryan. See RCW 26.09.520(1). Nor did
the trial court address each of the children’s relationships with other significant persons in their
lives.6
6
The testimony established that Ryan’s mother and her fiancé lived near the children, but that the
rest of his family lived in Eastern Washington and that Ryan had little contact with them. The
children had never met Ryan’s oldest son who Ryan saw on average once a year. Pellanda’s
parents no longer planned to live in the area, and Amanda’s parents planned to visit Oklahoma if
the court granted the petition to relocate.
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2. Disrupting Contact
Under the third relocation factor, a trial court must evaluate “[w]hether 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.” RCW 26.09.520(3). The trial court found that disrupting contact between the
children and Ryan would be more detrimental than disrupting contact between the children and
Amanda. CP at 33 (FOF 2.3.3). This finding of fact is significant due to the court’s ruling denying
Amanda’s relocation petition.
But the trial court’s finding of fact under the third relocation factor is a conclusory
statement with no indication of how the trial court arrived at this finding or what evidence supports
this finding. Arguably, every relocation causes some disruption and a finding of disruption could
be made in every relocation even where a parent moves across town or to a nearby city. As
analyzed above, the trial court erred in finding that Amanda was not the primary parent. Thus, we
hold that substantial evidence does not support this finding of fact.
3. Impact of Relocation
Under the sixth relocation factor, a trial court is required to evaluate the impact of a
relocation considering “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.” RCW 26.09.520(6).
Here, the trial court found that the oldest child’s performance at school initially suffered
after the parties ended their relationship, but that the child’s performance improved and returned
to his previous performance. CP at 34 (FOF 2.3.6). The trial court expressly found that “remaining
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in Washington would be in the children[’s] best interest and would allow the children to continue
to thrive with the majority of the established family members while [Amanda] and [Ryan] build
and stabilize their new relationships.” CP at 32. The trial court also found that the “children’s
interests are best served by not allowing their lives at this time to be disrupted. Everything they
know and love is in Washington State.” CP at 34 (FOF 2.3.6).
But these findings of fact do not address the impact of the relocation as to each child’s age,
developmental stage, needs of the child, and likely impact on the child’s physical, educational, and
emotional development. And substantial evidence does not support these findings of fact.
The trial court also ruled that, even if the rebuttable presumption had applied, Ryan
rebutted the presumption by a preponderance of the evidence. But as analyzed above, we hold that
the trial court erred in concluding that Ryan had rebutted the presumption. See RCW 26.09.520;
McNaught, 189 Wn. App. at 549.
The trial court’s findings of fact, that the detrimental effects of the relocation to Amanda
and the children outweighed the benefits, are not supported by substantial evidence. Based on
these reasons, we hold that the trial court abused its discretion in denying relocation.
II. THE 50/50 PERMANENT RESIDENTIAL SCHEDULE
Trial courts must determine a residential schedule based on a child’s best interest after
considering all factors under RCW 26.09.187(3). RCW 26.09.187(3) provides:
(a) The court shall make residential provisions for each child which encourage each
parent to maintain a loving, sable, and nurturing relationship with the child,
consistent with the child’s developmental level and the family’s social and
economic circumstances. The child’s residential schedule shall be consistent with
RCW 26.09.191. Where the limitations of RCW 26.09.191 are not dispositive of
the child’s residential schedule, the court shall consider the following factors:
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(i) The relative strength, nature, and stability of the child’s relationship with
each parent;
(ii) The agreements of the parties, provided they were entered into knowingly
and voluntarily;
(iii) Each parent’s past and potential for future performance of parenting
functions as defined in *RCW 26.09.004(3), including whether a parent has
taken greater responsibility for performing parenting functions relating to the
daily needs of the child;
(iv) The emotional needs and developmental level of the child;
(v) The child’s relationship with siblings and with other significant adults, as
well as the child’s involvement with his or her physical surroundings, school, or
other significant activities;
(vi) The wishes of the parents and the wishes of a child who is sufficiently
mature to express reasoned and independent preferences as to his or her
residential schedule; and
(vii) Each parent’s employment schedule, and shall make accommodations
consistent with those schedules.
Factor (i) shall be given the greatest weight.
(b) Where the limitations of RCW 26.09.191 are not dispositive, the court may
order that a child frequently alternate his or her residence between the households
of the parents for brief and substantially equal intervals of time if such provision is
in the best interests of the child. In determining whether such an arrangement is in
the best interests of the child, the court may consider the parties geographic
proximity to the extent necessary to ensure the ability to share performance of the
parenting functions.
*Reviser’s note: RCW 26.09.004 was alphabetized pursuant to RCW 1.08.015(2)(k), changing
subsection (3) to Subsection (2).
RCW 26.09.004(2) defines “parenting functions” as “those aspects of the parent-child
relationship in which the parent makes decisions and performs functions necessary for the care
and growth of the child.” “Parenting functions” include:
(a) Maintaining a loving, stable, consistent, and nurturing relationship with the
child;
(b) Attending to the daily needs of the child, such as feeding, clothing, physical
care and grooming, supervision, health care, and day care, and engaging in other
activities which are appropriate to the developmental level of the child and that are
within the social and economic circumstances of the particular family;
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(c) Attending to adequate education for the child, including remedial or other
education essential to the best interests of the child;
(d) Assisting the child in developing and maintaining appropriate interpersonal
relationships;
(e) Exercising appropriate judgment regarding the child’s welfare, consistent with
the child’s developmental level and the family’s social and economic
circumstances; and
(f) Providing for the financial support of the child.
RCW 26.09.004(2). RCW 26.09.191(5) provides, “In entering a permanent parenting plan, the
court shall not draw any presumptions from the provisions of the temporary parenting plan.”
The trial court found that “the present alternating week-on and week-off residential
schedule creates brief and substantially equal intervals of time.” CP at 4. That schedule was
created by the temporary residential schedule. The trial court erred in drawing any presumption
from the temporary residential schedule.
When establishing a permanent residential schedule in a final parenting plan, a trial court
weighs the evidence against each of the criteria under RCW 26.09.187(3), giving the most weight
to the first criteria, the “strength, nature, and stability of the child’s relationship with each parent.”
RCW 26.09.187(3)(a)(i). In making its findings to support a 50/50 permanent residential schedule,
the trial court merely adopted verbatim the findings of fact from the relocation order and failed to
enter separate findings of fact as to each residential schedule factor as required under RCW
26.09.187(3). Based on its unsupported finding of fact that the parents equally shared parenting
duties, and without entering separate findings as to each residential schedule factor, the trial court
erred by ordering a 50/50 permanent residential schedule in the final parenting plan. Thus, we
reverse this order. Because we reverse the trial court’s order denying relocation, we order the trial
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court on remand to enter a new permanent residential schedule after evaluating all factors under
RCW 26.09.187(3).
CONCLUSION
We reverse the trial court’s order denying relocation and the final parenting plan order
establishing a 50/50 permanent residential schedule and remand. On remand, we require that this
matter be assigned to a different trial judge and that the matter be handled as expeditiously as
possible. And we instruct the trial court to properly apply the primary parent designation and
rebuttable presumption under RCW 26.09.520, and enter a new permanent residential schedule
after considering all factors under RCW 26.09.187(3).
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
MAXA, A.C.J.
WORSWICK, J.
18