by Samuel K. Darling, Bellevue Divorce Lawyer
This article – How to Move with the Children – is the first half of a two-part series on relocating with a parenting plan. The second is the flipside of the topic, How to Stop Your Ex from Moving with the Children. Both explain Washington State’s child relocation laws in detailed plain language.
Put simply, Washington’s Relocation Act requires you to notify your ex of your intent to move with the child(ren). If he or she doesn’t object, you can move, though you might be forced to return if you do it wrong. If your ex does object, a judge decides the outcome.
This step-by-step article includes insights and is probably the most detailed guide available. A detailed, step-by-step guide comes with a downside though – this article is long. You might prefer skipping to the information most relevant to your situation. There are five main sections:
1) Does the Relocation Act Apply to You,
2) Advance Planning,
3) Drafting and Serving the Relocation Notice and proposed parenting plan,
4) What to Do if the Other Parent Does Not Object to the Notice, and
5) What to Do if the Other Side Objects (Winning a contested case in court).
Understanding relocation procedures can be incredibly beneficial. If you follow them correctly, the court can approve your proposed move and a new parenting plan quickly and inexpensively. In other instances the procedure can be much more burdensome, but properly understanding the rules and norms increases your odds of success, especially if you plan in advance.
I. Does the Relocation Act Apply to You?
You can ignore the Relocation Act and this article if you fall under one of the following categories:
- You don’t have a parenting plan or similar order. The Relocation Act’s rules only apply if you have an order stating who gets the kids at which times, such as a temporary parenting plan, final parenting plan, custody order, or residential schedule. If you don’t have an order of this type, chances are there are no explicit rules you need to comply with in your relocation, assuming you aren’t kidnapping. Even if no rules apply to your intended relocation, you might think about how you’d appear in a court’s eyes if the other parent were to complain. For example, you’d probably look bad in a judge’s eyes if you absconded without notice to your highly involved ex. On the other hand, a judge might not think less of you for running with the child from an extremely dangerous ex. Notably, judges don’t usually perceive alleged emotional abuse as constituting extreme danger – the danger usually needs to be more tangible to justify absconding with a child.
- Your parenting issue isn’t governed by Washington law. If you have a Washington parenting plan, you’re probably subject to Washington law. Even if only one parent/party still lives here, Washington retains continuing jurisdiction. The exception is if both parties have moved from Washington.
- Your parenting plan (or similar order) allots you less than 45% of the residential time with the children per year on average, including holidays, special occasions, vacations, and the like. If this is your situation, no special rules apply. You can simply move unless a court order says otherwise. The parenting plan will remain as it is despite your relocation. If you believe your relocation should be basis to change the parenting plan, you can file a petition for minor modification. You would follow the rules regarding normal parenting plan modifications, not the Relocation Act. For example, you might want to petition for a minor modification of your parenting plan if your relocation makes it impractical for you to continue to exchange your child at the appointed times or places.
- You’re moving within the same school district. Because a move within the same school district has a minimal impact on most parenting arrangements, the Relocation Act’s detailed rules do not apply to this situation. You can simply move, though you must provide actual notice to the other side of your move and new address. No need to file anything with the court. Our firm recommends sending the other side a quick text or email, that’s it. We recommend text or email because it’s easy to prove you sent it after the fact.
- You’re only moving for a short period of time. A short period of time isn’t clearly defined in the statute or case law, unfortunately. The determination of whether a move is short or long likely depends on how much it impacts the parties’ ability to follow the parenting plan.
II. Advance Planning
Assuming none of those bullet points apply to you, let’s talk about what you can do in advance to increase your odds of winning a contested relocation.
1. Increase Your Time with Kid(s) Far Before the Relocation. There are several steps you can take years in advance that can increase your odds of being allowed to move with your child. First and foremost, you might try increasing your time with him or her. The more time you have with your child, especially the more time your parenting plan says you have, the better your chances of winning a relocation court case.
The court’s decision whether to allow a contested relocation often hinges upon the child’s emotional attachment to each parent. Judges typically infer this emotional attachment from the amount of each party’s parenting time. In other words, if you have significantly more parenting time than the other side, the court will probably find your relationship with the child is stronger than the opposing party’s, and the child should be with you regardless where you go.
Even more significant, the court PRESUMES you should be allowed to relocate with your child if you have him or her at least 55% of the time in your parenting plan or similar order. The opposing party can attempt to rebut the presumption, but it is an uphill task to say the least. The party objecting to the relocation bears the burden of proving the relocation’s harmful impact upon the child (one person) outweighs the relocation’s benefits to child and you (two people). In a sense, it’s two against one in favor of relocation. This results in the vast majority of contested relocations being approved when the requesting party has at least 55% of the residential time.
Now you’re probably wondering how to increase your residential time. Offer to watch your child overnight when your ex goes on dates or just seems to need a break. Offer to take your child to events your ex doesn’t enjoy, such as doctor and dentist visits, piano lessons, and scout outings. Offer to have your child live with you without child support if the child and the other party are fighting. Make sure to document any increased time you have, such as by sending your ex contemporaneous confirmation emails or texts.
Even if you only informally increase your time with the child – meaning the increased time is not reflected in your parenting plan – you will have enhanced your chances in an ensuing relocation battle. Better yet, an informal increase in your parenting time can be basis to formally modify the parenting plan. That is, if you create a new informal status quo that stays in place for a significant period of time (at least 3-6 months minimum) and petition for modification of the parenting plan, the court will usually change the parenting plan to match the status quo. Our firm has another article on parenting plan modifications and the process of obtaining them.
2. Increase Your Child(ren)’s Attachment to the Location You Intend to Move to. Another long-term strategy is to increase your child’s attachment to the target location. The Relocation Act emphasizes a child’s relative connection to his or her current location compared to your proposed one. You can increase the child’s connection to your target destination a number of ways. Vacation there. If you have family or friends in the location, have your child interact with those people as much as possible in-person, over the phone, and in writing. Help your child develop interests in the unique activities and/or schools there. Have your child attend camps or summer schools there.
If your child has special needs, find ways those needs can be met at the target location. Identify experts there, locate treatment centers there, and sign your child up for remote or in-person services with them if possible.
Similarly, increase your own connection to the target destination. Find a good job there, spend time there, and increase your interaction with family and friends there.
III. Drafting & Serving the Relocation Notice (& Proposed Parenting Plan).
At least 60 days prior to your intended relocation, you should draft and serve a relocation notice upon the other parent.
1. Drafting the Notice. The notice should be on the Washington State mandatory form, currently called a Notice of Intent to Move with Children. The exact name and content of the notice change from time to time, but the gist remains the same. Moreover, the exact web addresses for this and related forms sometimes change, but you should always be able to find them on the Relocation section of the Washington Court Form’s website.
If you don’t yet know the information called for in the form, provide as much as you are able. For instance, if you haven’t decided where exactly you’ll live within the target location, give as much location information as you can, such as “someplace near South Beach, Florida”. Then supply the exact address soon as you have it, and promptly update any information that changes. You only need to provide a brief statement of the reasons for your relocation – no point in writing a novel or attaching exhibits as proof. You will have the chance to provide more detail and evidence if the opposing party later objects to the relocation notice.
Beware, it is generally considered bad faith to relocate for the purpose of keeping the child from the other parent or making it difficult for the other parent and child to be together regularly. Be careful in how you word your reasons for wanting to move.
2. Drafting a Proposed Parenting Plan. If your intended relocation would warrant a change in the parenting plan, you should draft a proposed parenting plan to be served along with the Notice of Intent to Move. After all, if you’re moving to Florida and your ex lives in Washington, you probably won’t want to continue conducting weekly child exchanges – you’ll generally need a long-distance parenting plan instead of the standard variety. Click the link in this sentence for parenting plan templates and general guidance in drafting a parenting plan. For guidance on completing a parenting plan when parents live far apart, see our firm’s article on long-distance parenting plans.
3. Exceptions to the Notice Rules. The Relocation Act contemplates exceptions to the rules regarding 60 days’ advance notice. If you cannot give notice 60 days in advance, such as if you have to move on short notice because of an unforeseen emergency, you must provide the notice within five days of when you learned of your need to relocate. You can provide the notice a mere 39 days in advance of your intended relocation if moving to a domestic violence shelter or to avoid a substantial safety risk to you or your child. If extenuating circumstances require you to move with less than 30 days’ notice, you’ll need court permission. You can attempt to get that permission by filing a Motion for Immediate Order Allowing Move with Children (the State updates the name of the form periodically). Washington has a template ex parte motion for this, which you can find on the Washington Court Forms Website under Family Law > Move With Children (Relocation) > Notice of Intent to Move With Children (Relocation). Ex parte means one party presents the motion directly to the court without being pre-scheduled and sometimes without giving any advance notice of the motion to the opposing party. The exact means of presenting a motion ex parte varies from county to county. If you need to present the order without the help of an attorney, you might consider consulting with the relevant county’s family law facilitators’ office, which is typically located in the county’s superior court building.
In addition to the notice timeframe, the contents of the Notice of Intent to Move can be modified by court order if necessary to protect your child or you. Washington State also has a template for this motion, which you can currently find on the Washington Court Forms Website under Family Law > Move With Children (Relocation) > Notice of Intent to Move With Children (Relocation). Again, you might consider consulting with the courthouse’s family law facilitators’ office for help in properly presenting an ex parte motion.
If the court grants your motion, it can relieve you of the need to provide the other side with your intended relocation date or target address. It can even do away with the need for advance notice to the other side entirely. That is, the court can give you permission to relocate first and provide notice to the other side afterward. Obtaining a waiver of advance notice comes with a downside though. The other side can still object to your relocation within 30 days of being served, which means you end up moving without knowing whether your ex will contest. Some good news – your ex is less likely to win a contested relocation proceeding if the relocation has already taken place. The disruption associated with the move will have already occurred, and the court will want to avoid further disruption to the child.
4. Serving the Documents. The time period for the Notice of Intent to Move begins when you serve it (and your proposed parenting plan, if any) on the other parent. Service typically means:
- Having an adult other than you hand the document(s) directly to the other parent; or
- Mailing the document(s) to the opposing party by any form of mail requiring a return receipt.
It is unclear under the law whether you can mail the document(s) by certified mail or whether someone else must do it. Usually you’ll elect to effect service by having an adult other than you send the Notice of Intent to Move (and proposed parenting plan, if any) to the other parent by certified mail. This formula is inexpensive, easy, and reduces the risk of a judge construing ambiguities in the law against you. Whoever serves the document(s) should complete and sign a document proving service. A template for proving service by mail is available by clicking the link in this sentence.
5. Filing with Court Optional. At this step in the process, you do not need to court file the Notice of Intent to Move, your proposed parenting plan, or proof of service. You can file them if you want though, and you probably will need to file them eventually. Regardless whether you file them, save copies of the documents for your records. You’ll may need them at some point.
6. Time Limit for the Other Party to Object to Your Proposed Relocation (and Parenting Plan, if Any). If you properly served the Notice of Intent to Move (and the proposed parenting plan, if any), the other parent will have 30 days to object to your proposal. That 30-day timeframe does not begin immediately if the documents were served by mail. Instead, the documents are deemed served three days after mailed to allot time for the mail carrier to do his work. When the third day falls on a non-court day, the third day is extended until the next court day. For example, if the third day falls on the Sunday before Labor Day, the 30 days would not begin until the day after Labor Day, for a total of 35 days from the date of mailing.
IV. What to Do if Other Party Fails to Object Within 30 Days?
1. Get An Immediate Ex Parte Order. If the other side fails to object within 30 days, you should rush to the courthouse and obtain an immediate ex parte order allowing you to relocate (and adopting your proposed parenting, if any). The other party generally loses all ability to oppose your relocation once you obtain such an order. The templates for the motion and supporting documents are available on the Washington Court Forms Website under Family Law > Move With Children (Relocation) > Entering the Relocating Party’s Proposed Parenting Plan When No Objection Is Filed. As before, the family law facilitators at the courthouse can assist you with the process of presenting the ex parte motion for the order. Along with your motion, you should file your Notice of Intent to Move, proposed parenting plan, and proof of service of the notice and proposed parenting plan, if you haven’t already. You probably do not need to provide the other side any further notice of your motion if he or she did not object to your Notice of Intent to Move.
2. What if the Opposing Party Doesn’t Necessarily Object But Still “Appears”. It is possible the court would require you to provide the other side with notice of your motion if the other party “appeared” in the relocation case, even if the party did not object per se. An appearance is when a party indicates his or her decision to participate in the case, such as by filing a Notice of Appearance. A party informally appears if he or she does anything indicating a desire to participate in the proceeding or disagreement with the proposal in your legal document(s) (i.e., the Notice of Intent to Move and Proposed Parenting Plan), such as by sending you or your attorney a letter saying “You’ll have to take me to court if you want to move with our child.” Your ex parte motion should inform the court of any appearance by the opposing party.
3. Option to Move Without Court Order if Opposing Party Does Not Object – Allowable But Not Usually Advisable. Though our firm recommends immediately obtaining an order permitting you to relocate, the order is not necessary. Washington’s statutory law specifically says you can relocate and follow your proposed parenting plan as soon as the 30 days pass without objection, regardless whether you obtain an ex parte order confirming it. Our firm’s recommendation provides you with additional protection. Until the court has entered an order, the other side can still object to your relocation (and parenting plan). Contrary to some of the wording in RCW 26.09.500(1), the objecting party does not even need to show an excuse for failing to object on time. Case law makes clear, a late objection to relocation is considered timely so long as it occurs before the court enters an order permitting the relocation.
Similarly, if you relocate without having the court adopt your proposed parenting plan, the other party can use your relocation as basis for a modification of the parenting plan. It is even possible the other side could use your relocation as basis for a major modification. Unlike a minor modification, a major modification can change who has the majority of the residential time with the child. Normally a modification, and especially a major modification, is hard to obtain largely because of the “adequate cause” determination. The Relocation Act waives the adequate cause determination in parenting plan modification proceeding brought about by a parent’s relocation. In essence, relocating without having the court sign your proposed parenting plan leaves you more vulnerable to a custody battle.
Assuming you obtained an ex parte order permitting you to relocate (and had the court sign into effect your proposed parenting plan, if any), you should be able to relocate without much worry of being forced to return. There are always exceptions, however. The main exceptions are when the opposing party lacked actual notice of the relocation case or had a good excuse for not being able to participate. For example, you probably won’t get away with moving if you sent your Notice of Intent to Move while the other party was on an extended vacation. In rare instances of that sort, the opposing party can ask the court to set aside the order permitting the relocation (and the new the parenting plan, if any).
V. What to Do if Opposing Party Objects within 30 Days?
If the other side properly objects to your proposed relocation or parenting plan, it initiates a unique court case commonly called a relocation action. Ultimately the relocation action leads to a determination of a) whether to allow the relocation with the child and b) what the parenting plan should be if you are allowed to relocate with the child. A judge who denies your request to relocate with the child can also implement a new parenting plan if you elect to relocate without primary care of your child.
A relocation action typically entails five stages:
1) Temporary Orders (optional),
2) Response to Objection,
3) Discovery (optional),
5) Request Trial Date,
5) Alternative Dispute Resolution (mediation), and
What to Do if Opposing Party Objects Improperly? Sometimes there’s a step before stage one of the relocation action. For the court case to begin, the other side must at a minimum object using the proper court form (or a prior version of the form) and supporting documents, file them with the court, and pay the court filing fee. The proper court forms are the ones listed on the Washington Court Forms Website under Family Law > Move With Children (Relocation) > Objection About Moving With Children (Relocation) (Objecting Party). Sometimes the other side objects but fails to meet these minimum requirements. In that instance, the court case often cannot proceed, and you might feel like you’re in limbo, unable to get the court to weigh in. You have two basic choices when this happens.
A. First Choice: Go Without Court Permission. You could simply relocate and follow the new parenting plan without obtaining explicit permission from the court. Statutory law arguably allows this. As the adage goes, sometimes it’s better to beg forgiveness than ask permission, and many attorneys believe the adage applies in this situation. If the court decides the relocation action before the child has moved, the judge’s desire to provide the child with stability militates against relocation. But if the child has already moved and settled in before the court is asked to make a decision on the relocation, the court might favor keeping the child in the new location rather than cause further instability.
Moving without obtaining an order permitting it comes with risks though, as described in a previous section of this article. The opposing party might eventually get his or her paperwork straight and force you to return. The other side might use your relocation as basis to request a major modification of the parenting plan. And you might look bad in the court’s eyes if you relocate without permission and despite the other side’s objection.
B. Second Option: File a Motion. The second option might provide you with more finality and peace of mind, but it comes with additional procedure. Under the second option, you file a motion to have the court approve your relocation (and proposed parenting plan, if any), almost as if the other side had not objected. You use the same forms as described in the section IV(1) of this article. The only differences:
- Delete any reference to “ex parte”, and
- Note the motion on a full hearing calendar with full notice to the opposing party.
Here’s an article on how to file a motion. As before, a family law facilitator can help you ensure you follow the court’s local rules in noting your motion for a hearing. If the other side properly objects to your relocation prior to the court hearing on your motion, your motion will be denied. But you will be able to proceed with the relocation action (the court case to determine whether you should be allowed to move with the child). If the other side fails to properly object prior to the hearing, the outcome is even better for you. You win. The court will probably sign the order permitting you to relocate (and your proposed parenting plan, if any).
1. Motion for Temporary Orders. Assuming the other side properly objects to your Notice of Intent to Move, he or she is also supposed to file a Motion for Temporary Order Preventing Move with Children. The motion can result in a ban against you moving with the child during the pendency of the relocation action, or it can result in you being allowed to temporarily relocate with a changed parenting plan. The Relocation Act also instructs the other party to note the temporary order motion for a hearing date that will occur within 15 days of the objection. Should he or she properly set the motion, you are prohibited from moving until the court decides the motion for temporary orders.
Our firm has a separate article on how to respond to a motion. Speak with the court’s family law facilitator to learn the local rules regarding your response. Generally your response will entail filing a declaration stating your position and providing supporting declarations from third parties who can corroborate your factual positions. Click here for an article on how to write a declaration. The court is supposed to decide the motion for temporary orders by considering the eleven statutory relocation factors listed in RCW 26.09.520. If you have at least 55% of the residential time with the child, the court should afford you the presumption described in section II(1) of this article and in RCW 26.09.520. You do not receive any part of the presumption if you have less than 55% of the residential time. In that situation, the court will probably review the 11 statutory factors from the perspective of what would be in the best interest of the child and without consideration your interests. In other words, the court will probably err on the side of keeping the child where he or she has been living and has the most bonds. The law is somewhat unclear on this point, because the 55% rule is relatively new as of the writing of this article.
If the other side neglects to file a motion for a temporary order, you can file your own Motion for Temporary Order Allowing Move with Children. Find the forms on the Washington Court Forms Website under Family Law > Move With Children (Relocation) > Temporary Order Allowing Move with Children. As with other motions mentioned in this article, you should consult with the local family law facilitator regarding the court’s local rules and procedures.
The party who files the motion for temporary orders arguably gains a slight advantage at the temporary order hearing. Statutory provisions say the court should side with the party who filed the motion for temporary orders if he or she has a “likelihood” of prevailing at trial. In other words, it seems the party who filed the motion is given the benefit of the doubt, though that is debatable. This reading of the statute conforms with common sense and a broader reading of the Relocation Act. It makes sense that the court should err on the side of temporarily preventing the child from moving, thereby minimizing disruption to the child until the court makes its final decision on the relocation. But if the objecting party fails to follow the statutory instruction to immediately file a motion for a temporarily relocation ban, he or she loses the benefit of the doubt.
Generally jurists are reluctant to allow you to relocate with the child on a temporary order unless it is clear you will ultimately prevail in the relocation action. For that reason, some attorneys would advise you not to bother filing a motion for temporary permission to relocate if the other side hasn’t filed a motion for temporary orders. Those attorneys would instead instruct you to proceed to trial quickly as you’re able. Skipping the motion for temporary orders can save what would otherwise be wasted time and money.
Other attorneys would say you should always file your motion for temporary permission to relocate if the other side neglects to file its own motion for temporary orders. If you win, the court will allow you to move during the pendency case, and the trial court will be reluctant to force you to return. Statutory law tempers this latter approach by forbidding trial judges from considering the status quo established by temporary orders; but, as a practical matter, trial judges probably are reluctant to force a child to return after having already allowed the relocation on a temporary basis.
2. Response to Objection. If the other side properly files an objection and thereby starts a relocation action, you are required to file and serve a Response to Objection about Moving with Children and Petition about Changing a Parenting/Custody Order (Relocation). It’s a very long name for a document, so in this article we’ll simply call it a Response to Objection. You can find the current version of the form on the Washington Court Forms Website under Family Law > Move With Children (Relocation) > Objection About Moving With Children (Relocation) (Objecting Party). The form is fairly straight forward and mostly involves checking the appropriate boxes. Once completed, you should file the original with clerk of the superior court of the county where the relocation action is taking place. You should also send a copy to the other party and save a copy for yourself. Technically you should provide the other side’s copy by having an adult other than you deliver it or mail it, but email delivery is probably fine as well. Actual receipt is almost always good enough for a Response to Objection, regardless whether email delivery conforms with the rules.
You must file and serve the Response to Objection within 20 days of being served with the Objection. If you do not, the other side get a default order without any further notice to you. A default order prohibits you from participating in the relocation action, which almost always results in the other side winning.
3. Discovery. Discovery is the process by which you can force the other party to give you information relating to the case. The most common discovery devices in family law are interrogatories and requests for production, but depositions and mental health evaluations are other examples. Click the links in this sentence for articles on discovery and interrogatories and requests for production.
4. Requesting a Trial Date. Be warned – don’t request a trial date unless you’re ready. Court’s often assign dates on very tight timelines in relocation matters – sometimes less than a month out. The exact process of obtaining a trial date varies from county to county. For example, King County assigns trial dates at the beginning of the case – you don’t need to request one. In Snohomish County one of the parties usually needs to file a note for trial setting. Speak with the family law facilitator for help following the local procedures.
5. Alternative Dispute Resolution. In many counties parties are required to engage in alternative dispute resolution prior to most types of family law trials, including relocation actions. We have a separate article on the basics of the most common type of alternative dispute resolution, mediation. The article is called Divorce Mediation in Washington State: The Basics. It applies to all types of family law mediations, not just divorce.
6. Trial. If the parties cannot settle their case in mediation, the last stage of a relocation action is trial, where a judge decides the final outcome of the dispute. Like with discovery and mediation, a full explanation of trial would exceed the scope of this article. Our firm has a separate guide on the topic of family law trials in Washington.
Like all other family law cases, relocations entail bench trials – the judge makes all the decisions without a jury. The legal standard is essentially the same as at the temporary hearing stage. If you have at least 55% of the parenting time, the court presumes you should be allowed to relocate and considers your needs in addition to those of the child. If you have less than 55% of the residential time, you receive no presumption, and the court decides the case based on the best interest of the child alone. In making these determinations, the court considers the first 10 of the 11 statutory factors listed in RCW 26.09.520.
The trial judge is supposed to make his or her decision in two steps. First the trial judge determines whether to allow your child to relocate with you. In deciding whether to allow your relocation, the judge must not contemplate whether you might not move. That is, the court must assume you WILL relocate and, based on that premise, decide whether your child should relocate with you. If the judge allows the relocation, the court then adopts a new parenting plan, if he or she believes a new parenting plan is appropriate. If the court denies your relocation and you elect to move anyhow, the judge likewise determines what the new parenting plan should be, if any. In other words, if the court says you can’t move with the child, you can still move, though you’re probably going to lose most of your residential time with your child.
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1 thought on “How to Move with the Children | WA”
What would be my first step if you we have a Dispute resolution provision in current parenting plan? (If parents disagree, there should be mediation first).
In this case, do I need to serve Notice of intent to relocate or schedule a mediation first? And if meditation is first, what would be the process?