BP BHEAD INT S [atlas:bill]

AN ACT Relating to relocation under parenting plans; amending RCW 26.09.260; and adding a new chapter to Title 26 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

PART I

GENERAL PROVISIONS

NEW SECTION. Sec. 101. DEFINITIONS. The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.

(1) "Change of residence address" means a change in the primary residence of an adult.

(2) "Child" means a person under eighteen years old.

(3) "Person entitled to residential time with a child" means a person so entitled by virtue of a court order or by an express agreement that is subject to court enforcement.

(4) "Principal residence of a child" means:

(a) The location designated by a court to be the primary residence of the child;

(b) In the absence of a court order, the location at which the parties have expressly agreed that the child will primarily reside; or

(c) In the absence of a court order or an express agreement, the location, if any, at which the child, preceding the time involved, lived with the child's parents, a parent, or a person acting as parent for at least six consecutive months and, for a child less than six months old, the location at which the child lived from birth with the child's parents, a parent, or a person acting as a parent. A period of temporary absence of any of the named persons counts as part of the six-month or other period.

(5) "Relocation" means a change in the principal residence of a child for a period of sixty days or more, but does not include a temporary absence from the principal residence.

NEW SECTION. Sec. 102. APPLICABILITY. (1) This chapter applies to an order regarding residential time with a child issued:

(a) After the effective date of this section; and

(b) Before the effective date of this section, if the existing parenting plan or enforceable agreement does not expressly govern the relocation of the child or there is a change in the primary residence address of an adult affected by the order.

(2) To the extent that this chapter conflicts with an existing parenting plan or enforceable agreement, this chapter does not apply to the terms of that plan or agreement that govern relocation of the child or a change in the primary residence address of an adult.

PART II

NOTICE OF RELOCATION OR CHANGE OF RESIDENCE ADDRESS

NEW SECTION. Sec. 201. NOTICE OF PROPOSED RELOCATION OF CHILD. Except as provided in section 205 of this act, a person who has the right to establish the principal residence of the child shall notify every other person entitled to residential time with the child of a proposed relocation of the child's principal residence as required in section 203 of this act.

NEW SECTION. Sec. 202. NOTICE OF INTENDED CHANGE OF RESIDENCE ADDRESS OF ADULT. Except as provided in section 205 of this act, an adult entitled to residential time with a child shall notify every other person entitled to residential time with the child of an intended change in the primary residence address of the adult as required in section 203 of this act.

NEW SECTION. Sec. 203. MAILING NOTICE OF PROPOSED RELOCATION OR INTENDED CHANGE OF RESIDENCE ADDRESS. (1) Except as provided in section 205 of this act, notice of a proposed relocation of the principal residence of a child or notice of an intended change of the primary residence address of an adult as provided in sections 201 through 208 of this act must be given by:

(a) Personal service or certified mail in a form requiring a return receipt;

(b) No later than:

(i) The sixtieth day before the date of the intended move or proposed relocation; or

(ii) The tenth day after the date that the person knows the information required to be furnished under subsection (2) of this section, if the person did not know and could not reasonably have known the information in sufficient time to comply with the sixty-day notice, and it is not reasonably possible to extend the time for relocation of the child.

(2) Except as provided in section 205 of this act, the following information, if available, must be included with the notice of intended relocation of the child or change of primary residence of an adult:

(a) The intended new residence, including the specific address, if known;

(b) The mailing address, if not the same as that of the intended new residence;

(d) The date of the intended move or proposed relocation;

(e) A brief statement of the specific reasons for the proposed relocation;

(f) A proposal for a revised schedule of residential time with the child, if any; and

(g) A warning to the nonrelocating parent that an objection to the relocation must be made within thirty days or the relocation will be permitted.

(3) A person required to give notice of a proposed relocation or change of residence address under this section has a continuing duty to provide a change in or addition to the information required by this section as that information becomes known.

NEW SECTION. Sec. 204. STANDARD COURT ORDER REQUIRING NOTICE. After the effective date of this section, an order issued by a court directed to a person entitled to residential time with a child must include the following terms:

Each party in this action is ordered to notify every other party to this action of a proposed relocation of the child or change of primary residence address and the following information:

(1) The intended new residence, including the specific address, if known;

(2) The mailing address, if not the same as that of the intended new residence;

(3) The home telephone number, if known;

(4) The date of the intended move or proposed relocation;

(5) A brief statement of the specific reasons for the proposed relocation of a child, if applicable; and

(6) A proposal for a revised schedule of residential time with the child, if any.

Each party is ordered to give notice of the proposed relocation or change of residence address on or before the sixtieth day before a proposed change. The notice shall be by personal service or certified mail in a form requiring a return receipt. If you do not know and could not have reasonably known of the change in sufficient time to provide sixty days' notice, you are ordered to give notice of the change on or before the tenth day after the date that you know of the change.

The obligation to furnish this information to every other party continues as long as a party is entitled to parenting time with a child covered by this order.

Failure to obey the order of this court to provide every other party with notice of information regarding the proposed relocation or change of residence address might result in further litigation to enforce the order, including contempt of court. A finding of contempt might be punished by state law regarding penalties for contempt.

In addition, failure to notify of a relocation of the child may be taken into account in a modification of parenting provisions. Reasonable costs and attorneys' fees also may be assessed if there is failure to give the required notice.

If the nonrelocating parent does not file a proceeding seeking a temporary or permanent order to prevent the relocation within thirty days after receipt of notice of the intent of the other party to relocate the residence of the child, relocation is authorized.

NEW SECTION. Sec. 205. NONDISCLOSURE OF RELOCATION INFORMATION IN EXCEPTIONAL CIRCUMSTANCES. (1) On a finding by the court that the health, safety, or liberty of a person or a child would be unreasonably put at risk by the disclosure of the required identifying information in conjunction with a proposed relocation of the child or change of residence of an adult, the court may order:

(a) That the specific residence address and telephone number of the child or of the adult and other identifying information not be disclosed in the pleadings, other documents filed in the proceeding, or the final order, except for an in-camera disclosure;

(b) That the notice requirements provided by this chapter be waived to the extent necessary to protect confidentiality and the health, safety, or liberty of a person or child; and

(c) Any other remedial action that the court considers necessary to facilitate the legitimate needs of the parties and the best interest of the child.

(2) If appropriate, the court may conduct an ex parte hearing under this section.

This section shall not be construed to deprive the nonrelocation party of the opportunity to object in advance of the relocation.

NEW SECTION. Sec. 206. FAILURE TO GIVE NOTICE OF RELOCATION OR CHANGE OF RESIDENCE ADDRESS REQUIRED BY STATUTE. The court may consider a failure to provide notice of a proposed relocation of a child as provided in sections 201 through 204 of this act as:

(1) A factor in making its determination regarding the relocation of a child;

(2) A factor in determining whether residential time should be modified;

(3) A basis for ordering the return of the child if the relocation has taken place without notice; and

(4) Sufficient cause to order the person seeking to relocate the child to pay reasonable expenses and attorneys' fees incurred by the person objecting to the relocation.

NEW SECTION. Sec. 207. FAILURE TO OBEY COURT ORDER TO GIVE NOTICE OF RELOCATION. In addition to the sanctions provided in section 206 of this act, the court may make a finding of contempt if a party violates the notice requirement in section 204 of this act and may impose the sanctions authorized for disobedience of a court order.

NEW SECTION. Sec. 208. Sections 201 through 207 of this act apply only if a temporary or permanent parenting order is entered.

PART III

OBJECTION TO RELOCATION

NEW SECTION. Sec. 301. FAILURE TO OBJECT TO NOTICE OF PROPOSED RELOCATION. The person entitled to residential time with a child may relocate the principal residence of a child after providing notice as provided in sections 201 through 207 of this act unless a parent entitled to notice files a proceeding seeking a temporary or permanent order to prevent the relocation within thirty days after receipt of the notice.

NEW SECTION. Sec. 302. OBJECTION TO RELOCATION OF CHILD. (1) A parent entitled by court order or written agreement to residential time with a child may file a proceeding objecting to a proposed relocation of the principal residence of a child and seek a temporary or permanent order to prevent the relocation or to seek a temporary or permanent order to modify the parenting plan based on the relocation.

(2) If relocation of the child is proposed, a nonparent entitled by court order or written agreement to residential time with a child may file a proceeding to obtain a revised schedule of residential time, but may not object to the proposed relocation or seek a temporary or permanent order to prevent the relocation.

(3) A proceeding filed under this section must be filed within thirty days of receipt of notice of a proposed relocation.

(4) Except as otherwise specifically provided in this chapter, a party seeking to prevent a proposed relocation must provide notice by personal service.

NEW SECTION. Sec. 303. PLEADINGS AND AFFIDAVITS REGARDING RELOCATION. (1) The party seeking an order to prevent the relocation of a child must accompany the pleading with an affidavit setting forth the specific factual basis supporting a prohibition of the relocation.

(2) The party proposing to relocate the child may respond to an affidavit objecting to the proposed relocation by filing a counter-affidavit setting forth facts in support of the relocation.

PART IV

ORDER PERMITTING OR RESTRICTING RELOCATION

NEW SECTION. Sec. 401. TEMPORARY ORDERS. (1) The court may grant a temporary order restraining the relocation of a child, or ordering return of the child if a relocation has previously taken place, if the court finds:

(a) The required notice of a proposed relocation of a child as provided in sections 201 through 207 of this act was not provided in a timely manner and the parties have not presented an agreed-upon revised schedule for residential time with the child for the court's approval;

(b) The child already has been relocated without notice, agreement of the parties, or court approval; or

(c) From an examination of the evidence presented at the temporary hearing there is a likelihood that on final hearing the court will not approve the relocation of the primary residence of the child.

(2) The court may grant a temporary order permitting the relocation of the child pending final hearing if the court:

(a) Finds that the required notice of a proposed relocation of a child as provided in sections 201 through 207 of this act was provided in a timely manner and issues an order for a revised schedule for residential time with the child; and

(b) Finds from an examination of the evidence presented at the temporary hearing there is a likelihood that on final hearing that the court will approve the relocation of the primary residence of the child.

NEW SECTION. Sec. 402. PRIORITY FOR HEARING. A hearing on a pleading filed under this chapter must be accorded appropriate priority on the court's motion calendar and trial docket.

NEW SECTION. Sec. 403. EVIDENTIARY HEARING. On the request of a party, the court shall hold a full evidentiary hearing before issuing a final order, unless either party's position is found to be frivolous.

NEW SECTION. Sec. 404. PROPOSED RELOCATION AS A FACTOR FOR MODIFICATION. A proposed relocation of a child must be a factor in considering a change of residential time.

NEW SECTION. Sec. 405. FACTORS TO DETERMINE CONTESTED RELOCATION. In reaching its decision regarding a proposed relocation during a pending dissolution or subsequent to a dissolution, the court shall consider the following factors:

(1) The nature, quality, extent of involvement, and duration of the child's relationship with the person proposing to relocate and with the nonrelocating person, siblings, and other significant persons in the child's life, and whether either parent is subject to limitations under RCW 26.09.191;

(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child;

(3) The logistics and financial impact of the relocation, and the effect on the frequency of the contact between the child and the nonrelocating parent;

(4) The wishes of the child if the child is sufficiently mature to express reasoned and independent preferences as to his or her residence schedule;

(5) Whether there is an established pattern of conduct by any party, either to promote or thwart the relationship of the child and any other party;

(6) Whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the relocation and the child, including, but not limited to, financial or emotional benefit or educational opportunity;

(7) The reasons of each person for seeking or opposing the relocation; and

(8) Any other factor affecting the best interest of the child.

NEW SECTION. Sec. 406. FACTORS NOT TO BE CONSIDERED. (1) If the court has issued a temporary order authorizing a party seeking to relocate a child to move before final judgment is issued, the court may not give undue weight to the temporary relocation as a factor in reaching its final decision.

(2) The court may not consider whether the person seeking relocation of the child has declared that the person will not relocate if relocation of the child is denied.

NEW SECTION. Sec. 407. BURDEN OF PROOF. No party shall have the burden of proof under this chapter.

NEW SECTION. Sec. 408. POSTING SECURITY. If relocation of a child is permitted, the court may require the person relocating the child to provide reasonable security guaranteeing that the court-ordered residential time with the child will not be interrupted or interfered with by the relocating party.

NEW SECTION. Sec. 409. SANCTIONS FOR UNWARRANTED OR FRIVOLOUS PROPOSAL TO OR OBJECTION TO RELOCATION OF CHILD. (1) After notice and a reasonable opportunity to respond, the court may impose a sanction on a person proposing a relocation of the child or objecting to a proposed relocation of a child if it determines that the proposal was made or the objection was filed:

(a) To harass a person, to interfere in bad faith with the relationship between the child and another party, or to unnecessarily delay or needlessly increase the cost of litigation;

(b) Without being warranted by existing law or was based on frivolous argument; or

(c) Based on allegations and other factual contentions that neither had evidentiary support nor, if specifically so identified, could have been reasonably believed to be likely to have evidentiary support after further investigation.

(2) A sanction imposed under this section may include directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to another party of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.

NEW SECTION. Sec. 410. APPLICATION OF FACTORS AT INITIAL HEARING. If the issue of relocation is presented at the initial hearing to determine residential time with a child, the court shall apply the factors set forth in sections 401 through 409 of this act in making its initial determination.

Sec. 411. RCW 26.09.260 and 1991 c 367 s 9 are each amended to read as follows:

MODIFICATION OF PARENTING PLAN OR CUSTODY DECREE. (1) Except as otherwise provided in subsection (4) of this section, the court shall not modify a prior custody decree or a parenting plan unless it finds, upon the basis of facts that have arisen since the prior decree or plan or that were unknown to the court at the time of the prior decree or plan, that a substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child.

(2) In applying these standards, the court shall retain the residential schedule established by the decree or parenting plan unless:

(a) The parents agree to the modification;

(b) The child has been integrated into the family of the petitioner with the consent of the other parent in substantial deviation from the parenting plan;

(c) The child's present environment is detrimental to the child's 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; or

(d) The court has found the nonmoving parent in contempt of court at least twice within three years because the parent failed to comply with the residential time provisions in the court-ordered parenting plan, or the parent has been convicted of custodial interference in the first or second degree under RCW 9A.40.060 or 9A.40.070.

(3) A conviction of custodial interference in the first or second degree under RCW 9A.40.060 or 9A.40.070 shall constitute a substantial change of circumstances for the purposes of this section.

(4) The court may order adjustments to a parenting plan upon a showing of a substantial change in circumstances of either parent or of the child, and without consideration of the factors set forth in subsection (2) of this section, if the proposed modification is only a:

(a) Modification in the dispute resolution process; or

(b) Minor modification in the residential schedule that:

(i) Does not change the residence the child is scheduled to reside in the majority of the time; and

(ii) Does not exceed twenty-four full days in a calendar year or five full days in a calendar month; or

(iii) Is based on ((~~a change of residence or~~)) an involuntary change in work schedule by a parent which makes the residential schedule in the parenting plan impractical to follow.

(5) If the court finds that a motion to modify a prior decree or parenting plan has been brought in bad faith, the court shall assess the attorney's fees and court costs of the nonmoving parent against the moving party.

PART V

MISCELLANEOUS

NEW SECTION. Sec. 501. PART HEADINGS AND CAPTIONS NOT LAW. Part headings and captions used in this act are not any part of the law.

NEW SECTION. Sec. 502. CODIFICATION. Sections 101 through 410 and 501 of this act constitute a new chapter in Title 26 RCW.