In re Custody of Osborne

• Decision Date: 17 November 2003
• Docket Number: No. 50956-0-I.
• Citation: In re Custody of Osborne, 79 P.3d 465, 119 Wash.App. 133 (Wash. App. 2003)
• Court: Washington Court of Appeals
• Parties: In re the CUSTODY OF Celeste Marie OSBORNE, DOB: 4/04/96, Laree E. Osborne, Appellant, v. Tawnya Osborne, Mother and Kenneth Osborne, Jr., Father, Respondents.

79 P.3d 465

119 Wash.App. 133

In re the CUSTODY OF Celeste Marie OSBORNE, DOB: 4/04/96,

Laree E. Osborne, Appellant, v. Tawnya Osborne, Mother and Kenneth Osborne, Jr., Father, Respondents.

No. 50956-0-I.

Court of Appeals of Washington, Division 1.

November 17, 2003.

John Russell Hickman, Attorney At Law, Tacoma, WA, for Appellant.

Sally A. Lanham, Mikkelborg Broz Wells & Fryer PLLC, Margaret Doyle Fitzpatrick, Margaret Doyle Fitzpatrick & Assoc., Seattle, WA, for Respondents.

KENNEDY, J.

One year after she agreed to entry of a parenting plan that provided significant visitation to her child's paternal great-grandmother Laree Osborne, Tawnya Osborne filed notice of her intent to relocate with the child, as required by Washington's Child Relocation Act, and proposed a modified parenting plan that provided for no visitation with the great-grandmother. Laree Osborne, who meets the conditions required by RCW 26.09.540, filed an objection to relocation of the child. Rather than conducting a hearing as directed by RCW 26.09.520, the trial court overruled the great-grandmother's objection solely on the basis of the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2059, 147 L.Ed.2d 49 (2000). The trial court concluded that Troxel rendered RCW 26.09.540 unconstitutional, and ruled that the great-grandmother simply had no remedy under the Act. We reverse and remand.

FACTS

Tawnya Osborne and Kenneth Osborne, Jr., were married in 1992, and had one daughter, Celeste Marie Osborne, who was born on April 4, 1996. When Tawnya and Kenneth divorced in December 1998, their agreed parenting plan provided that Celeste would primarily reside with Kenneth, and limited her residential time with Tawnya to certain vacations and holidays. Kenneth and Celeste, who was then two years old, were residing with Kenneth's grandmother, Laree Osborne, at the time of the dissolution. Celeste herself had been residing with her great-grandmother since she was six-months old.

On January 4, 2000, Tawnya petitioned for modification of the parenting plan based on a substantial change in circumstances. Specifically, she asserted in her petition that Kenneth had progressively restricted her contact with Celeste, had neglected his parenting duties due to serious drug and alcohol dependency, had turned over his parenting responsibilities to his grandmother, Laree Osborne, with whom Celeste was living, and, with his family, had "engaged in a persistent and escalating campaign to alienate the child from her mother." Clerk's Papers at 390. Following a threshold hearing on February 17, 2000, a court commissioner concluded that the petition, if proved, contained adequate cause to modify the parenting plan, entered a temporary parenting plan providing visitation for Tawnya, referred the case to Family Court Services for a parenting evaluation, and ordered Kenneth to complete a drug and alcohol evaluation.

On March 28, 2000, Kenneth moved out of his grandmother's home, leaving Celeste in her care.

On April 14, 2000, Laree filed a nonparental custody petition under RCW 26.10.030, seeking custody of her great granddaughter, Celeste. According to Laree's petition, Celeste had been living with Laree since October 1996, Kenneth had abandoned his parenting responsibilities altogether, and Celeste had had only sporadic contact with her mother, both prior to and following the dissolution of the parents' marriage. Kenneth failed to respond to Laree's petition and was eventually defaulted out of the third-party custody action. Tawnya responded, and, following hearings on May 31 and June 9, 2000, a court commissioner ruled that Laree's third-party custody petition could proceed. The commissioner entered a temporary parenting plan providing that Celeste would reside primarily with Tawnya, but spend Wednesday evenings and weekends with Laree. The temporary parenting plan limited Kenneth's contact with Celeste.

On September 13, 2000, the trial court consolidated Laree's petition for custody with Tawnya's petition to modify the original parenting plan, and set a trial date of March 5, 2001. The court also transferred the consolidated matter to Family Court Services for an additional parenting evaluation.

As a result of the parenting evaluator's recommendations, Laree and Tawnya entered into an agreed final parenting plan incorporating most of those recommendations. On March 5, 2001, the trial court entered the agreed parenting plan, which designated Tawnya as the parent with whom Celeste would reside the majority of the time, and provided that Celeste would spend alternate weekends, every Wednesday evening to Thursday evening, and certain vacations with Laree. The agreed parenting plan provided supervised visitation for Kenneth, subject to his compliance with various conditions. The agreed parenting plan specifically referenced Washington's Child Relocation Act, and contained the provisions required to be included in parenting plans by RCW 26.09.490.

A year and a day later, on March 6, 2002, Tawnya filed notice of intent to relocate with Celeste, along with a proposed modification of the existing parenting plan that deprived Laree of any visitation with the child. On March 29, 2002, Laree objected to the relocation, moved for a temporary order restraining the relocation, requested the court to appoint a guardian ad litem for Celeste, and requested that the existing parenting plan remain in place. Kenneth did not file an objection to the proposed relocation of the child.

At a hearing on May 8, 2002, Commissioner Hollis Holman asked the parties, "[I]n light of the Troxel[¹] case—what authority does this court have to enforce [a parenting plan] awarding third party visitation?" Report of Proceedings 5/8/02 at 2. Following Laree's statement that she was entitled to object to the relocation under RCW 26.09.540, Tawnya argued that (1) RCW 26.09.540 may be unconstitutional under Troxel v. Granville, (2) the fact that the parenting plan was agreed rather than decided at trial on the merits undermined the court's ability to enforce it, and (3) absent a finding that Tawnya was an unfit parent, Laree had no right, following Troxel, to object to the relocation.

Concluding that "the court has no authority to award" any third party visitation, the commissioner stated, "I am going to overrule the [great-grandmother's] objection." Report of Proceedings 5/8/02 at 9. In response to Laree's question, "Are you finding that RCW 26.09.540 does not apply in this particular case?" the commissioner stated, "Correct that it has since been basically over-ruled by the United States Supreme Court." Report of Proceedings 5/8/02 at 10. The commissioner signed a written order denying Laree's motion for the appointment of a guardian ad litem, and granting Tawnya's motion for a temporary order permitting the relocation stating, "Based upon Troxel v. Granville, there is a likelihood that on final hearing the court will approve the intended relocation of the child." Clerk's Papers at 254. The commissioner also signed a temporary parenting plan that did not provide visitation for Laree, but allowed Kenneth supervised visits with Celeste, subject to conditions.

At a revision hearing on July 16, 2002, Judge Patricia Clark heard argument, stayed "the Commissioner's ruling ... that the parenting-plan is void under Troxel," and continued the matter pending a written opinion. Report of Proceedings 7/16/02 at 17. On July 22, 2002, Judge Clark ruled:

The court had the authority to sign off on an agreed parenting [plan], pursuant to a 3rd party custody petition and modification petition, providing for visitation by the grandmother. Pursuant to the relocation statute the grandmother received appropriate notice[;] however under Troxel she has no remedy. Therefore, this court has no basis for interfering with the mother's decision to relocate.

Clerk's Papers at 291.

Laree appeals.²

ANALYSIS

Since June 8, 2000, Washington's Child Relocation Act, codified as RCW 26.09.405.560, has provided notice requirements and standards for relocating children who are the subject of court orders regarding visitation or residential time.³ Under the Act, courts have the authority to allow or disallow relocation of the child. RCW 26.09.420; In re Marriage of Grigsby, 112 Wash.App. 1, 6, 57 P.3d 1166 (2002). A parent with whom the child resides the majority of the time, and who intends to relocate with the child, must notify every other person entitled to residential time or visitation with the child under a court-ordered parenting plan. RCW 26.09.430. A nonrelocating parent or another party having court-ordered visitation with the child may file an objection to the relocation of the child. RCW 26.09.480. However, the effect of third-party objections is limited by the following provision:

A court may not restrict the right of a parent to relocate the child when the sole objection to the relocation is from a third party, unless that third party is entitled to residential time or visitation under a court order and has served as the primary residential care provider to the child for a substantial period of time during the thirty-six consecutive months preceding the intended relocation.

RCW 26.09.540. It is undisputed that Laree meets the conditions contained in this subsection of the Act, in that she had been granted visitation rights under a court order and had served as Celeste's primary residential care provider for 15 of the 36 consecutive months preceding the intended relocation.

Following a timely objection by a party entitled to object, the Act provides for a hearing under RCW 26.09.520:

Basis for determination.

The person proposing to relocate with the child shall provide his or her reasons for the intended relocation. There is a rebuttable presumption that the intended relocation of the child will be permitted. A person entitled to object to the intended

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