This case began as a parentage action brought by the state in 2008. The parentage order designated the mother as the custodian solely for purposes of other state and federal statutes and allowed either parent to request the family court to establish a residential schedule.
In 2009, the father brought an action to establish a parenting plan for C.M.F. After trial, the child was placed primarily with the father. The Court of Appeals affirmed. The Supreme Court, however, reversed, finding that the original parentage order constituted a “custody decree.” Thus, the court should have first determined that there was adequate cause and then, at the hearing, modified the custody decree only to the extent there were new facts and a substantial change in circumstances that necessitated modification.
Although the case was decided under the former statute, and RCW 26.26.130(7) was amended in 2011 to allow a parent to request entry of a parenting plan or residential schedule if one was not entered at the time the parentage order was entered, that process would only have been available to the father if the proposed parenting plan did not change the designation of the parent with whom the child spent the majority of time. As a result, the modification standards set forth in RCW 26.09.260 and RCW 26.09.270 had to be met.
To the extent that all parentage orders designate a parent the custodian in this manner or establish one parent’s residence as the primary residence, all parentage orders are custody decrees.
The court did note that the child had been residing with the father for at least the last few years. As a result, it reinstated the temporary orders in place in order to avoid displacement of C.M.F. from her home. The father, however, must meet the adequate cause threshold and the modification standards.
The dissent (two justices joining Justice Fairhurst) argued that once it is agreed that the court below had not adopted a parenting plan, it is problematic to then declare it to be a custody decree. When prior custody decrees are uncontested, it is difficult to make an assumption that all of the circumstances existing at the time were made known to the court and that sound discretion was exercised. The dissent noted that the record was clear that the custody provision of the parenting order was uncontested and that the court did not conduct an independent evaluation of relevant statutory factors.
Christina A. Meserve and Charles E. Szurszewski practice family law in Olympia, Washington with the law firm of Connolly Tacon & Meserve.