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Posts Tagged ‘Parenting Plan’

The Court of Appeals, Division II, recently held that the provisions of a written agreement that usurp a trial court’s statutory duty to review modifications to a parenting plan are invalid. Marriage of Coy, 39690-4-II. The court further rejected the practice of one parent acting as an arbitrator for parenting plan disputes.

Mark and Kristine Coy entered a permanent parenting plan for their two-year-old daughter, in 2002. In 2008, mediation resulted in a handwritten CR 2A to increase residential time for Mr. Coy. The CR 2A provided that, if Mr. Coy complied with a set of added requirements, he would receive additional residential time. The parties assigned Ms. Coy complete discretionary authority to determine whether Mr. Coy complied with the requirements.

After several months, Ms. Coy felt that Mr. Coy had failed to meet these requirements. Mr. Coy sought review in binding arbitration. The arbitrator agreed with Ms. Coy and entered findings of fact and conclusions of law. Mr. Coy moved for de novo review of the arbitrator’s orders in the trial court. The trial court denied the motion, in part because the parties had used “binding arbitration of their own volition.”

At the appeals level, Mr. Coy argued that under statutory provisions and case law, he had the right to a new review by a trial court of any result of a parenting plan dispute resolution process. Ms. Coy asserted that a trial court should only review the arbitrator’s findings and conclusions for whether she had abused her discretion in denying Mr. Coy additional time.

The court did not rule directly on either issue. Instead, it invalidated the CR2A, holding that parties cannot stipulate to a process that eliminates the trial court’s considerations of parenting plan modifications under the best interests of the child standard.

The statute that governs modification of parenting plans, RCW 26.09.260, requires that a trial court consider and make any modifications to a parenting plan based on what is in the best interests of the child. The Court of Appeals held that trial courts cannot delegate this authority for parenting plan modifications, and that any agreement, no matter how minor, “requires an independent inquiry by the trial court.”

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Division III recently held that a court may modify a parenting plan based on facts previously before the court in unsuccessful petition to modify the parenting, or on facts that arose prior to entry of an agreed parenting plan.
In Marriage of Zigler and Sidwell, Dkt # 27378-4 (Div. III, 3/4/2010), the parties entered two modifications of the parenting plan by agreement. After each agreed modification, the father then attempted to modify the order again, via court action. The first time he was unsuccessful. The second time he was successful.
The timing of each parenting plan dispute was as follows:
• 2002: final parenting plan;
• April, 2004: agreed modified parenting plan;
• December, 2004: father filed petition to modify. Court denies petition;
• March, 2006: agreed modified parenting plan; and
• April, 2006: father files petition to modify. Court grants petition.

By law, parties to a parenting plan may modify it by agreement. Absent agreement, the moving party must demonstrate a substantial change of circumstances in the non-moving party or the child, based on facts unknown to the court at the time of entry of the existing parenting plan.
In addition, the moving party must demonstrate that the child’s current living situation is detrimental to his health and that the harm likely to be caused by change is outweighed by the advantage of change.
On appeal, the mother argued that evidence regarding the substantial change of circumstances the father used to support his unsuccessful petition to modify in 2004 was inadmissible because the commissioner had already considered it and denied the petition anyway.

The court of appeals disagreed, holding that all evidence after entry of the original parenting plan in 2002 was admissible.

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