In re the Marriage of Littlefield

Sanders, J.

(concurring) — I agree the trial court erred when it ordered Charissa Littlefield, Edmund Littlefield’s former wife, to move back to Washington. She had already established her California residence prior to trial and had violated no temporary order when she did so. At that point the trial court "must make parenting plan decisions which are based on the actual circumstances of the parents and of the children as they exist at the time of trial.” Majority at 57. I write separately to stress the narrow basis for today’s holding and to reject portions of the majority opinion which are both obiter dicta and legally erroneous.

The majority rightly holds the trial court was without authority under RCW 26.09.187(3)(b)(ii)(B) to order frequent but brief alternations in the place of residence of Edmund and Charissa’s daughter, Heather Littlefield, because the parties were not in geographic proximity. See Majority at 54 ("The safeguards required by the statute were not present in this case. . . . The trial court had no authority, under the facts of this case, to require the residential schedule it set forth in the parenting plan. This provision, requiring frequent, brief changes in residence, appears to be the basis for the trial court’s geographic restriction on the residence of the mother.”). The record shows the parties simply did not meet the statutory prerequisite for frequent, brief changes for lack of geographic proximity. Consequently, the trial court’s order that Charissa move to Washington to fulfill that portion of the parenting plan was error because this portion of the plan was itself invalid. This decides the case. All else is dicta.

*60 However the majority does not stop but renders an advisory opinion on other issues. The majority unnecessarily notes the trial court found no basis for any limitation or restrictions in the parenting plan. And it legally errs when it states the trial court has almost no ability to enter an order restricting a custodial parent’s ability to move. This conclusion is not only unnecessary but also error as it plainly contradicts the language and purpose of the Parenting Act which allows the trial court to impose such a restriction when it serves the best interest of the child.

The majority’s opinion is based upon the false assumption that nothing in the Parenting Act grants the trial court the power to issue geographical restrictions in the parenting plan. To the contrary the Parenting Act retains the trial court’s "broad discretion” in matters concerning the welfare of children. In re Marriage of Cabalquinto, 100 Wn.2d 325, 327 , 669 P.2d 886 (1983). The correct question is not whether the Act grants such power, but whether the Act takes it away. Nothing in the Act precludes the trial court from entering such a restriction if the court finds such a restriction is in the best interest of the child.

The majority pays scant regard to the directives of the Legislature. The legislative statement of policy raises one consideration above all others:

In any proceeding between parents under this chapter, the best interests of the child shall be the standard by which the court determines and allocates the parties’ parental responsibilities. . . . The best interests of the child are served by a parenting arrangement that best maintains a child’s emotional growth, health and stability, and physical care. Further, the best interest of the child is ordinarily served when the existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents or as required to protect the child from physical, mental, or emotional harm.

RCW 26.09.002 (emphasis added). Long before the Legislature passed the Parenting Act this court recognized the *61 vital importance that court decisions play on placing the best interest of the child above all other interests. See Kirby v. Kirby, 126 Wash. 530, 532 , 219 P. 27 (1923) ("In cases of this kind, the matter of first importance is the welfare of the child.”); Nedrow v. Nedrow, 48 Wn.2d 243, 250, 292 P.2d 872 (1956) (quoting Kirby). The New York Court of Appeals recently explained why the best-interest-of-the-child standard is paramount in custody and residency disputes:

While the respective rights of the custodial and noncustodial parents are unquestionably significant factors that must be considered ... it is the rights and needs of the children that must be accorded the greatest weight, since they are innocent victims of their parents’ decision to divorce and are the least equipped to handle the stresses of the changing family situation.

Tropea v. Tropea, 87 N.Y.2d 727 , 665 N.E.2d 145, 150 , 642 N.Y.S.2d 575, 580 (1996) (emphasis added).

The majority correctly notes:

Prior to the enactment of Washington’s Parenting Act, this court recognized that a trial court, applying a "best interests of the child standard,” had authority to prohibit a custodial parent from relocating without notice to the other parent, when such a restriction was in the best interests of the child, and when the restriction was subject to modification.

Majority at 49 (citing Kirby and Nedrow). The Parenting Act, however, contains no language which impairs the trial court’s authority to impose geographic restrictions. "[Sjtatutes must be construed with reference to the common law, for it must not be presumed that the legislature intended to make any innovation on the common law without clearly manifesting such intent.” Green Mt. School Dist. No. 103 v. Durkee, 56 Wn.2d 154, 161 , 351 P.2d 525 (1960). If anything, the Legislature’s Parenting Act reinforced the emphasis on the best interest of the child already present in this State’s common law.

*62 The Legislature specifically stressed its paramount concern for the best interest of the child in exactly those sections of the Parenting Act at issue here. RCW 26.09.187(3)(a) directs the trial court to make residential provisions for each child which encourage each parent "to maintain a loving, stable, and nurturing relationship with the child . . . .” Most importantly, RCW 26.09.191(3)(g), relied upon by the majority to limit the trial court’s authority to enter geographical restrictions, expressly provides that the trial court may preclude or limit any provision of the parenting plan if it finds "factors or conduct. . . adverse to the best interests of the child.”

This section does not limit the trial court’s broad discretion to protect the best interest of the child. The statute is clear: A trial court may preclude or limit any provision of the parenting plan if the court finds the provision is adverse to the best interests of the child. Yet the majority holds this section "requirefs] more than the normal distress suffered by the child because of travel, infrequent contact of a parent, or other hardships which predictably result from a dissolution of marriage.” Majority at 55. Why? Upon what portion of the statute is this conclusion based? There is no hint of this in the cited section. Nor is there hint in this section that a geographical restriction need be justified by any more than the trial court’s determination that a move away from the noncustodial parent is not in the best interests of the child. By implication the majority’s dicta seem to say the best interest of the child is secondary to the interest of one of the parents.

How would the majority deal with the custodial parent who moves from the jurisdiction in violation of a court order to spite the other spouse at the expense of the child’s interest to maintain a loving and nurturing relationship with the absent parent? I think the majority underestimates the depravity, wickedness, and meanspiritedness of some (not Charissa) who would injure their own child to deprive the other parent of his or her natural and fundamental right to maintain a relationship with their *63 own child. The statute says the court must act to protect the child—and grants it ample legal authority to do just that.

The majority’s ipse dixit decision restricting the scope of the trial court’s broad discretion to protect the child finds no basis in the language or policy of the Parenting Act. The majority states, "[tjhere is nothing in this state’s Parenting Act that gives a trial court the authority to alter the physical circumstances of the parties in order to create an environment that is, in the trial court’s opinion, more desirable for the child than that which exists.” Majority at 56. Poppycock. The trial court has the explicit authority to alter the physical circumstances of the parties to create any environment which is in the best interests of the child. RCW 26.09.191(3)(g). To the extent In re Marriage of Schneider, 82 Wn. App. 471, 478 , 918 P.2d 543 (1996), and In re Marriage of Sheley, 78 Wn. App. 494, 502 , 895 P.2d 850 (1995) recognize the trial court has the statutory authority to restrict a residential parent from relocating the child outside a certain determined area they both remain an accurate statement of the law. But ordering a parent to move from a lawfully established residence is a different matter.

For these reasons, I concur in result.