DocketNumber： 7411-1-III
Citation Numbers： 737 P.2d 1319, 48 Wash. App. 196, 1987 Wash. App. LEXIS 3680
Judges： Thompson, Green, Munson
Filed Date： 6/11/1987
Status： Precedential
Modified Date： 10/19/2024
David Wayne Swofford appeals an order modifying the joint custody provisions of a dissolution decree by awarding sole custody of his daughter to Kristie Murphy, the child's mother. We affirm.
David and Kristie were married in 1979. One child, Lindsey, was born in 1980. On January 11, 1984, the marriage was dissolved and the decree of dissolution awarded the parents joint custody with the physical residence of the child alternating every week between the parents. Neither parent was to leave the state with the child for-more than 24 hours without prior written permission of the other. On June 25, 1984, the mother moved to Portland, Oregon, taking Lindsey with her and failing to notify the father of her whereabouts for several weeks.
On August 30, the mother successfully moved for modification of custody and was awarded sole custody of Lindsey with reasonable visitation to the father. The father appeals,
The mother's attorney withdrew and she has not filed a brief in this appeal; thus, our review is limited to examining the appellant's brief to determine if it presents a prima facie showing of error. Aquarian Found. v. KTVW, Inc., 11 Wn. App. 476, 523 P.2d 969 (1974).
The court in its memorandum opinion observed that the standards to be followed in custody modification proceedings are set forth in RCW 26.09.260:
This statute directs that modification shall not occur unless the Court finds (1) "That a change has occurred in the circumstances of the child or his custodian" and (2) "That modification is necessary to serve the best interests of the child." For the purposes of this case, the statute then provides that in applying the two standards above, the Court should retain the custodian established by the prior decree unless "the child's present environment is detrimental to his physical, mental or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child."
RCW 26.09.260(1) (c) permits modification of custody only if there is sufficient evidence to support a finding: (1) there has been a change in circumstances; (2) the present environment is detrimental to the child's physical, mental or emotional health; (3) the harm caused by a change is outweighed by the advantage of the change; and (4) the best interests of the child will be served by the modification. In re Marriage of Roorda, 25 Wn. App. 849, 852, 611 P.2d 794 (1980); Anderson v. Anderson, 14 Wn. App. 366, 368, 541 P.2d 996 (1975), review denied, 86 Wn.2d 1009 (1976).
The court initially noted that RCW 26.09.260 makes reference to "the custodian established by the prior decree", and concluded that in the context of joint custody, the inquiry under the statute is whether there has been a change in the circumstances of the "joint custodians as
The court found neither arrangement to be an acceptable custodial situation, and both in fact detrimental to the child's welfare, particularly where the child was approaching school age. The court's determination that the "present environment" was detrimental to the child referred to the continuing joint custodial arrangement following the mother's remarriage and move to Oregon. Although the court did not expressly rule on whether the harm caused by the change was outweighed by the advantage of the change, that factor was implicit in the remainder of the court's modification analysis.
The court next engaged in a determination of the best interests of the child, noting at the threshold that under the unique joint custody arrangement the statutory "custodian established by the decree" could not reasonably be retained. Since both parties had a similar "custodial" status, the court looked to RCW 26.09.190 factors involving an initial custody award to determine the best interests of the child in the modification.
Guided by the RCW 26.09.190 "best interests of the child" test, the court examined the wishes of the parents, the wishes of the child, evidence as to the child's interaction with each parent, the child's adjustment to home, school and community, and the mental and physical health of those involved. It concluded that, although both parents were fit and maintained a good relationship with the child, under all the circumstances, the interests of Lindsey would be better served by awarding custody to the mother. The father was granted extensive visitation rights, including one
Although we concur with the trial court that the final determination as to the custody of Lindsey presented "one of the most difficult custody determinations", substantial evidence supports the trial court's decision. Under these facts the court was faced with the problem of applying a single custodian modification standard to a joint custodial situation and properly concluded the changed circumstances rendered joint custody unworkable and detrimental. The mother's initial move to Oregon in violation of the original decree should not be condoned and could have resulted in sanctions, but it should not be the controlling consideration as to whether modification under this unique joint custodial arrangement would be allowed. It would be inappropriate to sacrifice the best interests of the child based on the misconduct of one parent, although, depending on the nature of the misconduct, it could under appropriate facts, in effect control the court's judgment as to who is best qualified to be the custodial parent. In this case the court chose not to let the mother's misfeasance be the controlling consideration, and that judgment will not be disturbed on appeal absent a showing of an abuse of discretion.
Finally, we reject Mr. Swofford's contention and the dissent's assertion the trial court's ruling was improperly based on Mr. Swofford's religious beliefs. The court validly expressed concern for the relationship between the mother and child following her "disfellowship" from the father's church, as reflected by the testimony concerning the moral obligation of church members to disassociate themselves with her. We conclude the trial court properly examined the entire set of circumstances which included the father's attitude toward the mother. We find no constitutional deprivation inherent in the court's determination:
I want to make it clear to all parties that I intend no criticism of their religion or the doctrine they follow; it is*201 neither my place nor purpose to so criticize. The church members have every right to declare the doctrine applicable to their members including that of disfellowship. It is the potential, if not almost certain, effect upon the child that causes me the concern.
It is clear that under church doctrine, members are disfellowshipped in public and other members encouraged to have no association with disfellowshipped members.
It is also clear that respondent considers petitioner properly disfellowshipped and as an "immoral person."
It is within this atmosphere that the child's relationship with her mother would have to exist.
There is little question that it is a valuable right of the child to continue a relationship with both parents; indeed it is the duty of each parent to foster and encourage a good and loving relationship between the child and the other parent. It is also the right of each parent to expect the same encouragement from the other.
Without intending to suggest that I feel the respondent or other church members would deliberately and maliciously disparage the mother, the fact remains that the fostering of a good and enduring relationship with the mother would encounter clear obstacles along the way.
I do not mean to suggest that awarding the mother custody will eliminate this difficulty; at best, the difficulty may be lessened. Although the above concern is not the sole and determinative factor, it is, in my view, one of the appropriate factors for the Court to consider.
A prima facie showing of error has not been made in this case; thus, we affirm the trial court.