Relocation Presumption in Phased Parenting Plans: Residential Time Is Measured at Service of Relocation Notice

1. Introduction

In re Marriage of Hauk addresses a recurring problem under Washington’s Child Relocation Act (CRA), RCW 26.09.405-.560: how to calculate “residential time” to decide whether the relocating parent receives the CRA’s rebuttable presumption in favor of relocation when a parenting plan uses a phased-in schedule.

Petitioner-mother Arynn Kyla Hauk sought to relocate with the parties’ child, T.W., from Washington to Virginia. Respondent-father Brandon Jeffrey Wuesthoff objected. Their dissolution parenting plan provided four phases of increasing residential time for Wuesthoff, ultimately reaching a 50/50 schedule beginning at kindergarten. When Hauk served her relocation notice, the family was in phase three (6 out of 14 overnights for Wuesthoff, with the next increase still more than a year away).

The key legal issue was whether “substantially equal residential time” (at least 45% for each parent under RCW 26.09.525) should be measured (a) across the entire future life of the parenting plan (including future phases) or (b) at the phase in effect when the relocating parent serves the notice of intent to relocate.

2. Summary of the Opinion

The Supreme Court of Washington reversed the Court of Appeals and held: for purposes of deciding whether the CRA relocation presumption applies, courts calculate residential time at the point when the notice of intent to relocate is served—meaning, in a phased plan, the phase in place when notice is served.

Because the trial court had calculated residential time across T.W.’s entire childhood (finding 46.9% for Wuesthoff) and did not make the necessary factual findings under the correct timing rule (including the notice service date and whether holiday allocations push Wuesthoff over 45% in the operative phase), the Supreme Court remanded. It further directed that if the presumption applies, the trial court should consider conducting a new fact-finding hearing due to the passage of time, consistent with In re Marriage of Little.

3. Analysis

3.1 Precedents Cited

• In re Marriage of Littlefield, 133 Wn.2d 39 (1997)
  Cited for the emotional nature of relocation disputes and, historically, for questioning the authority to restrict relocation without notice. The CRA expressly “supersede[d]” Littlefield, underscoring that relocation questions are now governed by statutory structure rather than pre-CRA common-law approaches.
• In re Marriage of Pape, 139 Wn.2d 694 (1999)
  Pape held a relocating primary residential parent must show a bona fide reason and emphasized custodial continuity (“status quo”). The opinion treats Pape as a critical foil: the legislature superseded it, replacing continuity-based presumptions with the CRA’s relocation presumption (and its defined exception for “substantially equal residential time”).
• In re Marriage of Horner, 151 Wn.2d 884 (2004)
  Serves two roles: (1) confirms the CRA “shift[s] the analysis away from only the best interests of the child to an analysis that focuses on both the child and the relocating person,” and (2) requires trial courts to consider each of the 11 CRA factors and enter specific findings or articulate their application.
• In re Marriage of Worthley, 198 Wn. App. 419 (2017)
  Noted to explain legislative response: after Worthley suggested the CRA did not apply when residential time is equal/substantially equal, the legislature clarified in 2019 that the CRA does apply, though the presumption may not.
• Wrigley v. Dep't of Soc. & Health Servs., 195 Wn.2d 65 (2020)
  Provides an interpretive analogy: verb tense (present/present perfect) can confine an inquiry to existing conduct rather than future speculation. The court uses Wrigley to support reading RCW 26.09.525 as focused on current circumstances.
• State v. A.M.W., 5 Wn.3d 147 (2025)
  Reinforces that present-tense statutory phrasing indicates a time-bounded factual inquiry.
• In re Marriage of Wilcox, 3 Wn.3d 507 (2024) and In re Marriage of Zandi, 187 Wn.2d 921 (2017)
  Cited for the de novo standard of review for statutory interpretation in family-law contexts.
• Blomstrom v. Tripp, 189 Wn.2d 379 (2017); Five Corners Fam. Farmers v. State, 173 Wn.2d 296 (2011); Burton v. Lehman, 153 Wn.2d 416 (2005)
  Establish the interpretive sequence: plain meaning from text/context; ambiguity exists when two reasonable readings are possible; only then do canons and legislative history become appropriate.
• Nelson v. P.S.C., Inc., 2 Wn.3d 227 (2023) and Burnside v. Simpson Paper Co., 123 Wn.2d 93 (1994); In re Adoption of T.A.W., 186 Wn.2d 828 (2016)
  Used for purposivist principles: interpret statutes to further, not frustrate, their purposes; and to read operative provisions consistently with stated legislative objectives.
• Porter v. Kirkendoll, 194 Wn.2d 194 (2019) and Koenig v. City of Des Moines, 158 Wn.2d 173 (2006)
  Support the court’s refusal to create different interpretive rules for “conditional” versus “unconditional” phased plans absent statutory language distinguishing them, emphasizing a consistent statutory scheme.
• In re Marriage of Little, 96 Wn.2d 183 (1981)
  Supplies the remand principle: when time has passed during appeal, custody-related determinations should be reconsidered based on “present circumstances” to ensure children’s best interests are served.

3.2 Legal Reasoning

The court’s reasoning proceeds in four linked steps:

1. Identify ambiguity in the CRA as applied to phased schedules. RCW 26.09.525(2) tells courts how to calculate residential time (generally using the parenting plan, absent specified deviation conditions) but does not specify when to measure time when the plan changes over time.
2. Use statutory text and context—especially verb tense—to select the operative timing. The court emphasizes present and present perfect tense phrasing (“has,” “is spent,” “has been”) in RCW 26.09.525, and present-focused language throughout RCW 26.09.520. It reads this grammar as focusing on the family’s current circumstances rather than on time “anticipated by the parenting plan but not yet spent.”
3. Align timing with the CRA’s purpose and structure. The CRA is designed to (a) establish procedures for relocation and (b) implement a rebuttable presumption in favor of relocation unless the parents have “substantially equal residential time.” The court reasons that the presumption’s function is to give added weight to the judgment of the parent who currently provides more than 55% of care, because that judgment is tethered to the child’s current needs, routines, and developmental stage.
4. Avoid creating plan subtypes not recognized by statute; rely on statutory guardrails for bad faith. The court rejects carving out different rules for “conditional” phased plans (where increases depend on meeting conditions like treatment or completion of supervised visits) versus “unconditional” plans, because the CRA does not distinguish them. It addresses “gamesmanship” concerns by pointing to express statutory tools: RCW 26.09.520(5) (good faith) and RCW 26.09.550 (sanctions for harassment, bad-faith interference, or needless delay).

3.3 Impact

• Clear timing rule for phased plans. Trial courts now have a bright-line measuring point: the phase in effect when notice is served. This resolves the split reflected in the Court of Appeals majority and Judge Veljacic’s dissent.
• More predictable presumption analysis, potentially more presumption availability early in phased schedules. Parents in earlier phases (often when a child is younger) may more frequently qualify for the relocation presumption than they would under whole-plan averaging.
• Reduced reliance on speculative future compliance in conditional phase plans. The holding avoids counting time that may never occur due to unmet conditions—an issue raised by amici and treated as a practical problem with the “whole plan” approach.
• Trial practice consequences: service date and holiday allocations become pivotal facts. Because the measuring point is service of notice, parties should expect litigation over (a) proof of service date and (b) precise accounting of residential time within the operative phase, including holiday schedules.
• Remand framework emphasizes present circumstances when time has passed. The court’s directive to consider a new fact-finding hearing, citing In re Marriage of Little, highlights that relocation outcomes must track current realities, not merely historic evidence.
• Interaction with the dissent’s concerns. The dissent’s “whole plan” approach prioritizes the permanency and forward-looking nature of parenting plans and worries about strategic timing. The majority answers not by adopting a whole-plan calculation, but by relying on the CRA’s bad-faith factor and sanctions provision to manage strategic conduct.

4. Complex Concepts Simplified

• Child Relocation Act (CRA): A statute governing when a parent may move a child’s principal residence after a dissolution or parenting order, and how objections are litigated.
• Rebuttable presumption in favor of relocation (RCW 26.09.520): A starting advantage for the relocating parent: the court begins with the assumption relocation should be permitted unless the objecting parent proves that the harms outweigh the benefits to the child and relocating person.
• “Substantially equal residential time” (RCW 26.09.525): Defined as each parent having at least 45% of residential time. If this threshold is met, the presumption in favor of relocation does not apply, though the court still evaluates relocation under the 11 statutory factors.
• Phased-in (graduated) parenting plan: A schedule that changes over time (often as a child grows), increasing or adjusting one parent’s time in planned “phases.”
• Service vs. filing: The CRA requires the relocating parent to serve notice on the other parent; filing in court is not required. The presumption timing rule announced here keys off the date of service.
• “Best interests” factors under the CRA: Even when the presumption applies (or does not apply), the court considers 11 unweighted factors listed in RCW 26.09.520 (relationships, disruption, good faith, development, logistics, alternatives, etc.).
• Remand: The Supreme Court did not decide whether Hauk gets the presumption or whether relocation should be permitted. It sent the case back for factual findings (including the service date and the 45% calculation) and potentially a new hearing based on current circumstances.

5. Conclusion

In re Marriage of Hauk establishes a practical, uniform rule for phased parenting plans under the CRA: residential time for determining the relocation presumption is calculated as of the phase in effect when the relocation notice is served. The decision reinforces the CRA’s present-circumstances orientation, rejects subdividing parenting plans into statutory subtypes not recognized by the legislature, and places responsibility on trial courts to manage strategic conduct through good-faith analysis and sanctions where appropriate.

More broadly, the opinion clarifies that relocation doctrine in Washington is anchored in the CRA’s structured framework—designed to supersede the older common-law emphasis on custodial continuity—while still requiring a current, fact-intensive best-interests evaluation on remand.