Background
Arynn Hauk and Brandon Wuesthoff’s parenting plan established four phases that progressively increased Wuesthoff’s residential time with their daughter, T.W. The final phase, beginning with kindergarten, provided an equal division of overnights. Nearly two years after the plan was entered, while the parties were in phase three, Hauk gave notice that she intended to relocate with T.W. to Virginia. At that point, Wuesthoff had six of every 14 overnights, although he argued that holiday time brought his share above 45 percent.
The superior court calculated residential time over the entire parenting plan through T.W.’s eighteenth birthday and found that Wuesthoff would receive 46.9 percent of the overnights. It therefore treated the parents as having substantially equal residential time and declined to apply the Child Relocation Act’s rebuttable presumption favoring relocation. After considering the statutory factors, the court denied relocation and entered a modified plan under which T.W. would spend school years with Wuesthoff in Washington and summers with Hauk in Virginia. A divided Court of Appeals affirmed.
The Court’s Holding
The Washington Supreme Court reversed. It held that, when a parenting plan contains phased residential schedules, courts determine whether the relocation presumption applies by calculating residential time under the phase in effect when the relocating parent serves notice of intent to relocate. Courts may not include residential time assigned in future phases that have not yet taken effect.
The court reasoned that the statutory text focuses on present circumstances and that measuring the current phase gives weight to the judgment of the parent then providing most of the child’s care. A single current-phase rule also avoids counting contingent future residential time that may never occur. Although the court recognized that relocation can disrupt the nonrelocating parent’s expectations, it concluded that the legislature chose a rebuttable presumption favoring relocation except when the parents currently have substantially equal residential time.
The record did not establish the date Hauk served notice or whether Wuesthoff reached the 45 percent threshold after holidays were included in the applicable phase. The Supreme Court therefore remanded for factual findings and a determination whether the presumption applies. If it does, the trial court should conduct a new fact-finding hearing addressing T.W.’s best interests under current circumstances.
Key Takeaways
- For a phased parenting plan, residential time is measured under the phase in effect when notice of intent to relocate is served.
- Future phases that have not taken effect are excluded, whether the phased plan is conditional or unconditional.
- The 45 percent threshold determines whether the parents have substantially equal residential time and whether the rebuttable relocation presumption applies.
- Even when the presumption applies, it remains rebuttable, and the court must consider the Child Relocation Act’s 11 statutory factors.
Why It Matters
The decision establishes a uniform timing rule for Washington relocation cases involving phased parenting plans. It prevents anticipated residential time from future phases from eliminating the relocation presumption before that time has begun.
The ruling does not decide whether Hauk may relocate with T.W. It returns the case to the superior court to determine the parties’ residential-time percentages at the legally relevant point and, if necessary, reconsider relocation in light of current circumstances.