FILE
IN CLERKS OFFICE
IUPREME CCUiTf, STATE OF WASH1NCm111
~2013
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Parentage of
C.M.F.
No. 88029-8
STATE OF WASHINGTON,
En Bane
Plaintiff,
Filed DEC 1 9 2013
v.
JONATHAN GRAHAM FAIRFAX,
Alleged Father,
Respondent,
TRAVIS JAMES RIEHL, Presumed
Father,
Defendant,
and
AMANDA CLARE SIMPSON,
Mother,
Petitioner.
In re Parentage ofC.MF., No. 88029-8
J.M. JOHNSON, I.-Petitioner Amanda Simpson claims the court
erred when it treated respondent Jonathan Fairfax's petition to establish a
parenting plan as an initial "custody" proceeding under former RCW
26.26.375 (2002) instead of as a modification under RCW 26.09.260 and
.270. 1 Because the superior court previously entered a parentage order that
qualifies as a custody decree, we reverse the decision of the Court of Appeals
and remand for further proceedings. The court must find that there is adequate
cause and a change in circumstances as detailed in RCW 26.09.260 and .270
before it can change the custodial designation from Ms. Simpson to Mr.
Fairfax.
FACTS AND PROCEDURAL HISTORY
The State brought a paternity action in 2008 to establish the parentage
ofC.M.F. Mr. Fairfax was subsequently adjudicated C.M.F.'s father. In the
judgment and order determining parentage, the court designated Ms. Simpson
the "custodian solely for purpose of other state and federal statutes" and
allowed "[e]ither parent ... [to] move the Family Law Court ... to establish
a residential schedule under this cause number." Clerk's Papers (CP) at 46.
1
The legislature amended RCW 26.09.270 in 2011, adding gender neutral language. It
did not otherwise alter this statute. LAWS OF 2011, ch. 336, § 691. Accordingly, we cite
to the current version of the statute.
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In re Parentage ofC.MF., No. 88029-8
In December 2009, Mr. Fairfax petitioned the court to establish a
parenting plan for C.M.F. Trial began on January 11, 2011. After Mr. Fairfax
completed his case, Ms. Simpson moved the court to dismiss the petition
under CR 12(b )( 6) on the grounds that Mr. Fairfax had filed the wrong petition
and failed to establish that there was adequate cause to hold a modification
hearing. The court denied the motion, finding that the parentage order was
not a custody decree and that Ms. Simpson's motion was untimely.
Ms. Simpson presented her case, and the court created a final parenting plan
that has C.M.F. residing with Mr. Fairfax for the majority of the time and
designates Mr. Fairfax the "custodian of the child solely for purposes of all
other state and federal statutes .... " CP at 232. Ms. Simpson appealed and
the Court of Appeals affirmed the trial court.
ISSUES
(1) Whether a parentage order that designates the mother "custodian
solely for the purpose of other state and federal statutes" and the
primary residential parent is a custody decree that requires the
father, when filing a subsequent petition for a parenting plan that
would make him the custodian and primary residential parent, to
first show there is adequate cause to hold a modification hearing and
then, during the hearing, establish the statutory elements necessary
for custodial modification.
(2) Whether the parentage court in this case waived the adequate cause
and modification requirements by reserving a "residential schedule"
in its parentage order.
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In re Parentage ofC.MF., No. 88029-8
(3) Whether the 2011 amendments to former RCW 26.26.130(7)
(200 1) apply in this case to waive the adequate cause and
modification requirements.
(4) Whether Mr. Fairfax's improper use of a standard form should have
resulted in the case's dismissal.
(5) Whether Ms. Simpson's waiting until after Mr. Fairfax had
presented his case to bring her CR 12(b)( 6) motion to dismiss
waived the threshold requirement of adequate cause and the
application of the statutory standards for modification.
STANDARD OF REVIEW
"We review questions of statutory interpretation de novo." State v.
Morales, 173 Wn.2d 560, 567 n.3, 269 P.3d 263 (2012). We review de novo
a ruling on a motion to dismiss a claim under CR 12(b)(6). Reid v. Pierce
County, 136 Wn.2d 195, 200-01, 961 P.2d 333 (1998). Dismissal under CR
12(b)(6) is only appropriate if "it appears beyond a reasonable doubt that no
facts exist that would justify recovery." Cutler v. Phillips Petroleum Co., 124
Wn.2d 749, 755, 881 P.2d 216 (1994).
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In re Parentage ofC.MF., No. 88029-8
ANALYSIS
A. The Parentage Order is a "Custody Decree" as That Term is Used in
RCW 26.09.260 and .270
1. The Uniform Parentage Act of 2002 and the Parenting Act of 1987
In 2002, the legislature adopted the then-current version of the Uniform
Parentage Act of 2002 (UP A), chapter 26.26 RCW. The UP A governs all
determinations of parentage in this state. RCW 26.26.021(1). The UPA
provides detailed procedures for courts to follow, covering all facets of the
parentage determination process, including the establishment of child support
payments.
The Parenting Act of 1987, chapter 26.09 RCW, "fundamentally
changed the legal procedures and framework addressing the parent-child
relationship in Washington." State v. Veliz, 176 Wn.2d 849, 855, 298 P.3d 75
(20 13 ). The act mostly did away with the concepts of "visitation" and
"custody" as they tended to "treat children as a prize awarded to one parent
and denied the other." ld. (citing DRAFTING COMM., 1987 PROPOSED
PARENTING ACT: REPLACING THE CONCEPT OF CHILD CUSTODY cmt. at 2
(sponsored by Wash. State Rep. Appelwick) (on file with Wash. State
Archives)). Instead, the act promotes the child's relationship with both
parents by requiring courts to establish parenting plans.
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In re Parentage ofC.MF., No. 88029-8
A parenting plan's overriding purpose is to do what is in the best
interest of the child. RCW 26.09.002; see RCW 26.09.184(1) (detailing the
specific objectives of a parenting plan). The legislature specifically
recognized that the child's best interests are normally 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.
Accordingly, in the interest of stability, the legislature allows a court to
modify a parenting plan or custody decree pursuant only to RCW 26.09.260
and .270. RCW 26.09.260(1) reads as follows:
[T]he court shall not modify a prior custody decree or a parenting
plan unless it finds, upon the basis of facts that have arisen since
the prior decree or plan or that were unknown to the court at the
time of the prior decree or plan, that a substantial change has
occurred in the circumstances of the child or the nonmoving
party and that the modification is in the best interest of the child
and is necessary to serve the best interests of the child.
(Emphasis added.) RCW 26.09.270, in turn, requires a party seeking to
modify "a custody decree or parenting plan [to] submit together with [the]
motion, an affidavit setting forth facts supporting the requested order or
modification .... " A court is required to deny the motion unless it finds that
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In re Parentage ofC.MF., No. 88029-8
"adequate cause for hearing the motion is established by the affidavits, in
which case it shall set a date for hearing on an order to show cause why the
requested order or modification should not be granted." !d. (emphasis added).
These procedures protect stability by making it more difficult to challenge the
status quo. 2 See In re Parentage of Jannot, 149 Wn.2d 123, 127-28, 65 P.3d
664 (2003) (noting that extended litigation can be harmful to children and that
children have a strong interest in finality).
Notably, the UPA requires courts to make residential provisions for
children in a parentage action "[ o]n the same basis as provided in chapter
26.09 RCW." Former RCW 26.26.130(7). Moreover, the UPA requires
courts wishing to change parenting plans and residential provisions
2
Accordingly, Washington case law is fairly uniform in erring on the side of requiring a
party seeking to change a custody decree or a parenting plan to show adequate cause and
then meet the statutory requirements for modification. See, e.g., In re Parentage of MF.,
141 Wn. App. 558, 572, 170 P.3d 601 (2007) (holding that it is an abuse of discretion for
a court to ignore the specific requirements ofRCW 26.09.260); In reMarriage o.fWatson,
132 Wn. App. 222, 238-39, 130 P.3d 915 (2006) (holding that after the family law court
had dismissed a modification petition for lack of proof it had no authority to make its own
modifications); In re Custody of Halls, 126 Wn. App. 599, 608, 109 P.3d 15 (2005)
(holding that a petition's failure to comply with any of the procedural requirements of
RCW 26.09.270 meant the court did not have jurisdiction to modify the parties' parenting
plan); In reMarriage o.f Lemke, 120 Wn. App. 536, 541-42, 85 P.3d 966 (2004) (holding
that a court does not have discretion to grant a modification hearing if there is no adequate
cause shown); In re Marriage of Shryock, 76 Wn. App. 848, 852, 888 P.2d 750 (1995)
(holding that procedures relating to the modification of a prior custody decree are
statutorily prescribed and mandatory).
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In re Parentage ofC.MF., No. 88029-8
established in parentage orders to use the same procedures found in chapter
26.09 RCW. RCW 26.26.160(3).
In the present case, both parties concede that no parenting plan was
established at the time of the parentage action. Thus, if the parentage order in
this case is a custody decree, then the court did not conduct the parenting plan
hearing in accordance with the proper statutory framework. Mr. Fairfax never
submitted the affidavits required by RCW 26.09.270, and the court never
made a finding of adequate cause. Similarly, during the hearing, the court did
not make the necessary finding that there was a substantial change in Ms.
Simpson or C.M.F.' s circumstances that would necessitate modification. See
RCW 26.09.260.
2. Custody Decree Defined
Neither the UPA nor the Parenting Act of 1987 expressly defines
"custody decree." Listing "custody decree" and "parenting plan" separately,
the legislature unmistakably recognized that these are two separate and
distinct types of orders. See RCW 26.09.260(1); Veliz, 176 Wn.2d at 861
("[T]he legislature has distinguished between parenting plans and [UPA]
custody orders that include ... residential provisions.").
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In re Parentage ofC.MF., No. 88029-8
When a statutory term is undefined, we apply the term's "'plain and
ordinary meaning unless a contrary legislative intent is indicated."' State v.
Jones, 172 Wn.2d 236, 242, 257 P.3d 616 (2011) (quoting Ravenscroft v.
Wash. Water Power Co., 136 Wn.2d 911, 920-21, 969 P.2d 75 (1998)).
Webster's defines "custody" as "control of a thing or person with such actual
or constructive possession as fulfills the purpose of the law or duty requiring
it." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 559 (2002).
Webster's defines "decree" as "an order set forth by one having authority."
!d. at 588. Thus, a "custody decree" is an authoritative order placing the minor
child in the care of someone who has the duty to comply with state law
regarding care of a child.
According to this plain language definition, it appears that a parentage
order is a custody decree. A parentage order is issued by a court with the
authority and responsibility, pursuant to former RCW 26.26.130(7), to entrust
the child with some person or persons who will care for the child as required
by law. Using this same definition, however, it is also possible to define a
parenting plan as a custody decree. Therefore, the plain language definition
is inadequate unless we assume the legislature was being redundant. See In
re Dependency of J. WH., 106 Wn. App. 714, 721-22, 24 P.3d 1105 (2001)
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In re Parentage ofC.MF., No. 88029-8
(explaining that an ambiguous statute must be interpreted within the context
of the entire statutory framework so that none of its language is rendered
meaningless or superfluous), rev'd on other grounds, 147 Wn.2d 687,57 P.3d
266 (2002). Fortunately, other sections in chapter 26.09 RCW shed further
light on this term.
"Custody decree" is somewhat defined in RCW 26.09.285. RCW
26.09.285 deems the parent with whom the child is scheduled to reside a
majority of the time the custodian. The statute makes it clear that this
designation has no effect upon the respective parents' duties and rights under
the parenting plan and is "[s]olely for the purposes of all other state and federal
statutes which require a designation or determination of custody .... " Id.
Since Washington has basically done away with "custody" as that term was
previously employed, RCW 26.09.285 seems to be an attempt to allow the
Parenting Act of 1987 to successfully work in conjunction with the other
federal and state statutes that continue to require a "custody" designation.
Obviously, a court has to apply the factors found in RCW 26.09.187, which
are intended to protect a child's best interests, to designate a parent the
primary caregiver and, therefore, the custodian.
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In re Parentage ofC.MF., No. 88029-8
Thus, a "custody decree" is an order that designates one parent a
custodian, "[ s]olely for the purposes of all other state and federal statutes," as
that term is used in RCW 26.09.285. This parent will usually be the parent
who has the child in his or her home the majority of the time.
Consequently, the fact that the parentage court in this case did not enter
a parenting plan does not mean that it did not enter a custody decree. All the
court had to do to make its order a custody decree was to designate Ms.
Simpson's residence C.M.F.'s primary residence (which by virtue of RCW
26.09.285 would make Ms. Simpson the custodian) or simply declare Ms.
Simpson the custodian "solely" for the purposes of other statutes. Here, the
parentage court did both.
a. The Parentage Order is a "Custody Decree"
In the judgment and order determining parentage, the parentage court
declared that "[t]he primary residence of the child shall be with the mother,
who is designated custodian solely for the purpose of other state and federal
statutes." CP at 63 (emphasis added). Thus, the parentage order was a
custody decree. The court should have first determined that there was
adequate cause and then, at the hearing, only modified the custody decree to
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In re Parentage ofC.MF., No. 88029-8
the extent there were new facts and a substantial change in circumstances that
necessitated modification of the custody decree in C.M.F. 's best interests.
Mr. Fairfax argues that the order's qualification of the custodial
designation as being "solely for the purpose of other state and federal statutes"
means that the parentage order is not a custody decree. Resp't's Suppl. Br. at
12-13. To support this argument, Mr. Fairfax cites In reMarriage ofKimpel,
122 Wn. App. 729, 94 P.3d 1022 (2004).
In Kimpel, the custodial parent moved for a mmor parenting
modification under RCW 26.09.260, and the noncustodial parent asked the
court to switch the custodial designation because, as a result of the
modification, he would have the children for more time than the mother. Id.
at 731. The court refused his request despite the requirement found in RCW
26.09.285 that the court designate the custodial parent to be the one with
whom the children spend the most time. I d. The Court of Appeals upheld the
superior court because this was a minor modification proceeding, the current
arrangement had been in place for six years, the record lacked facts, and it
thought that the trial court had broad discretion in this area. Id. at 734-35.
The court further explained that the custodial designation found in RCW
26.09.285 was "'[s]olely for the purposes of all other state and federal
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In re Parentage ofC.MF., No. 88029-8
statutes,'" which meant it simply helped facilitate the administration of the
food stamp program, the criminal code (e.g., kidnapping), federal regulations
issued on veterans' benefits, Social Security, and statutes related to juvenile
justice regarding missing children. I d. at 734 & n.l (quoting RCW
26.09.285).
Mr. Fairfax argues that Kimpel shows that the custody designation is
detached from a parent's status as the primary residential caretaker, so
modification is unnecessary in this case despite the fact that the parentage
court made Ms. Simpson's home the primary residence. CP at 63. See
Resp't's Suppl. Br. at 12. Mr. Fairfax's argument, however, ignores the fact
that he not only petitioned the court to make him the primary residential
parent, but also asked to be custodian. See CP at 76. Moreover, despite the
holding in Kimpel, it is far from clear that the courts in this state have the
authority to contradict RCW 26.09.285 by making the parent who is not the
primary residential parent the custodian. Kimpel is also distinguishable on the
grounds that it was preserving a six-year status quo.
Mr. Fairfax additionally argues that the court's reservation of a
"residential schedule" means that the parentage order is not a custody decree.
CP at 46. Assuming the reservation is valid, there is no indication that the
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In re Parentage ofC.MF., No. 88029-8
existence of a reservation necessarily means that the parentage order is not a
custody decree. The court may have intended to reserve a parenting
plan/residential schedule so long as the moving party does not wish to switch
the primary residential parent/custodial designation. 3 A reservation of a
residential schedule does not change the fact that Ms. Simpson was designated
custodian in the order. 4
In sum, if a custody decree is an order that designates a parent custodian
"solely" for the purposes of other statutes, and Ms. Simpson was appointed
by the court to be custodian "solely" for the purposes of other statutes, then
making Mr. Fairfax custodian "solely" for the purposes of other statutes
would require modification. 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.
3
See infra part B.
4
Admittedly, the superior court's order lacks the findings of fact that should probably
accompany an analysis of the factors in chapter 26.09 RCW. Mr. Fairfax, however, did
not directly petition the court for a parenting plan, nor did he contest its designation of Ms.
Simpson as custodian at the time of the order.
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In re Parentage ofC.MF., No. 88029-8
B. The Court Did Not Waive the Adequate Cause and Modification
Requirements by Attempting To Reserve a "Residential Schedule"
Mr. Fairfax argues that the court allowing either party to later "move ...
to establish a residential schedule under this cause number" reserved the
issues of C.M.F. 's custody and residence for later, allowing him to avoid the
adequate cause and modification requirements. Resp't's Suppl. Br. at 19; CP
at 63. In support of his argument that there was a reservation, Mr. Fairfax
points to the court's failure to expressly analyze the factors in RCW
26.09.187. Id. To show that the court had the power to make this reservation,
Mr. Fairfax cites In reMarriage of Possinger, 105 Wn. App. 326, 19 P.3d
1109 (2001); In re Marriage of Adler, 131 Wn. App. 717, 129 P.3d 293
(2006); and In reMarriage ofTrue, 104 Wn. App. 291, 16 P.3d 646 (2000).
In Possinger, 105 Wn. App. at 329, the court adopted the father's
parenting plan but provided for review after one year. At the end of the year,
the court modified the residential provisions applying the standards found in
RCW 26.09.187 instead of .260. Id. at 331-32. The Court of Appeals upheld
the family law court's decision, holding that the Parenting Act of 1987 does
not preclude the court from "exercising its traditional equitable power derived
from common law to defer permanent decision making with respect to
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In re Parentage ofC.MF., No. 88029-8
parenting issues for a specified period of time following entry of the decree
of dissolution of marriage." Id. at 336-37.
In Adler, 131 Wn. App. at 724-26, the Court of Appeals held that
divorcing parents could defer entry of a final custody decision and residential
schedule by agreement. The parents had agreed that for one year either could
request a review of the parenting plan without having to show adequate cause
but that during such a review, the court would apply the modification
procedures found in RCW 26.09.260. Id. at 720-21, 725. When the father
requested review and it resulted in a modification, the mother challenged the
modification on the grounds that there was no finding of adequate cause. !d.
at 721-22. She argued that an agreement that waives adequate cause is
contrary to public policy as it could potentially be adverse to the interests of
the affected children. Id. The court upheld the family law court's
modification on the grounds that the children's best interests were adequately
protected by the family law court's application of higher standards found in
RCW 26.09.260. Id. at 725.
In True, 104 Wn. App. at 294, both parents agreed to a temporary
parenting plan that reserved many issues and established a date, roughly a year
in the future, for the final resolution of all issues. After the parties signed the
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In re Parentage ofC.MF., No. 88029-8
plan, the father asked the court to retain jurisdiction over the case for several
months beyond the date that the issues were set to be decided, and the court
agreed. Id. at 295. The mother objected, but the Court of Appeals upheld the
retention of jurisdiction explaining that a "court may retain jurisdiction over
the matter for a limited period of time in order to review the efficacy of its
decision and to maintain judicial economy following its order." I d. at 298.
The Court of Appeals explained that unlike a modification, a reservation is
not subject to a threshold determination. Id.
Mr. Fairfax argues that Possinger, Adler, and True make it clear that it
was not error for the court to reserve the residential schedule to be evaluated
under RCW 26.09.187, as an initial action, instead of under RCW 26.09.260,
as a modification. 5 Certainly, superior courts have broad discretion over
matters involving the welfare of children. In reMarriage of McDole, 122
Wn.2d 604,610,859 P.2d 1239 (1993) (citing In reMarriage ofKovacs, 121
5 Mr. Fairfax also makes much of an agreement predating his petition that he and Ms.
Simpson signed that allegedly permanently designates Mr. Fairfax as the primary
residential parent. CP at 88; Resp't's Am. Responsive Br. at 24. Mr. Fairfax argues that
even if the parentage court's order was a custody decree, that designation changed when
Ms. Simpson signed the agreement. !d. This argument fails not only because RCW
26.09.260 and .270 only allow custody changes after a showing of adequate cause and
then proof of the modification elements, but also because our case law makes it clear that
such agreements are nonbinding. See, e.g., In reMarriage of Littlefield, 133 Wn.2d 39,
58, 940 P.2d 1362 (1997) (holding that a private agreement can be a factor but is not
enforceable).
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In re Parentage ofC.MF., No. 88029-8
Wn.2d 795, 801, 854 P.2d 629 (1993)); In reMarriage ofCabalquinto, 100
Wn.2d 325, 327-28, 330, 669 P.2d 886 (1983)). These cases, however, are
distinguishable because the family law court in each case retained jurisdiction
for only about a year after the entry of the parenting plan. In none of the cited
cases is there an open-ended reservation.
To allow a "reservation" of final residential placement to extend
indefinitely runs contrary to the overriding policy considerations identified in
RCW 26.09.002. At any moment, the noncustodial parent can bring a motion
and thereby upset the stability of the child's situation. 6 See McDole, 122
Wn.2d at 610 ("Custodial changes are viewed as highly disruptive to children,
and there is a strong presumption in favor of custodial continuity and against
modification."). Because the court's reservation of a residential schedule in
this case was open ended, it exceeded the authority provided by former RCW
26.26.130(7) and the common law.
Former RCW 26.26.130(7) required the court to make residential
provisions pursuant to chapter 26.09 RCW at the time it entered its parentage
order. The court's open ended reservation is improper, so the court did not
6
Mr. Fairfax's own petition was brought roughly a year and a half after entry of the
parentage order. CP at 68.
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In re Parentage ofC.MF., No. 88029-8
reserve the custody and primary residence issues for a later date despite the
lack of RCW 26.09.187 findings in the record. Regardless, even if the
reservation were proper, the court only reserved a "residential schedule"
which, as explained above, does not necessarily reserve the custodial
designation.
C. The 2011 Amendments to Former RCW 26.26.130(7) Do Not Apply to
This Case and Do Not Waive the Adequate Cause and Modification
Requirements for Changing a Custody Decree
We presume that statutory amendments apply prospectively, not
retroactively. Hale v. Wellpinit Sch. Dist. No. 49, 165 Wn.2d 494, 507, 198
P.3d 1021 (2009) (citing In re F.D. Processing, Inc., 119 Wn.2d 452, 460,
832 P.2d 1303 (1992)). "However, where no constitutional prohibition
applies, an amendment may act retroactively if the legislature so intended or
if it is curative." I d. at 508 (citing F. D. Processing, 119 Wn.2d at 460). An
amendment is "curative only if it clarifies or technically corrects an
ambiguous statute." F.D. Processing, 119 Wn.2d at 461. Here, there is no
indication that the legislature intended these amendments to apply
retroactively. Because these amendments were passed in April, they did not
become effective until July. LAws OF 2011, ch. 283, § 58.
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In re Parentage ofC.MF., No. 88029-8
Furthermore, this amendment is not simply curative. The legislature
changed former RCW 26.26.130(7) in 2011 to read as follows:
On the same basis as provided in chapter 26.09 RCW, the
court shall make residential provisions with regard to minor
children of the parties, except that a parenting plan shall not be
required unless requested by a party. If a parenting plan or
residential schedule was not entered at the time the order
establishing parentage was entered, a parent may move the court
for entry of a parenting plan or residential schedule:
(a) By filing a motion and proposed parenting plan or
residential schedule ... : PROVIDED, That at the time of filing
the motion less than twenty-four months have passed since entry
of the order establishing parentage and that the proposed
parenting plan or residential schedule does not change the
designation of the parent with whom the child spends the
majority oftime; or
(b) By filing a petition for modification under RCW
26.09.260 or petition to establish a parenting plan, residential
schedule, or residential provisions.
RCW 26.26.130(7) (new language underlined); LAWS OF 2011, ch. 283, § 9.
The amendment makes a substantive change by automatically reserving the
issue of a parenting plan/residential schedule for a specific time following
entry of the parentage order. Moreover, former RCW 26.26.130(7) is not
ambiguous. The court had to make residential provisions in the order but did
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In re Parentage ofC.MF., No. 88029-8
not have to enter a parenting plan unless a party asked for one. In sum, the
amendment appears to have only prospective application. 7
D. Mr. Fairfax's Improper Use of the Standard Forms Should Not Have
Resulted in His Case's Dismissal
Mr. Fairfax filed a RCW 26.26.375 petition to establish a residential
schedule/parenting plan. CP at 68. Under RCW 26.26.375, the petitioner
does not have to show adequate cause or meet the statutory requirements for ,
modification because the statute presumes that there is no existing parenting
plan or custody decree. Additionally, RCW 26.26.375 requires the petitioner
to be an "acknowledged" parent as that term is used in RCW 26.26.330.
7
Regardless, it is doubtful the amendment would assist Mr. Fairfax. Part (a) of the
amendment requires a modification petition if the petitioning party, petitioning within 24
months of the entry of the parentage order, wants to change who the child is residing with
the majority of the time. Former RCW 26.26.130(7)(a). Part (b), which applies after the
24-month period post entry of the parentage order, allows a party to file a standard
nonmodification petition. When the statutory scheme is read as a whole, however, it
becomes clear that a modification petition would be required under part (b) if the
petitioner wanted to change the primary residence/custodial designation. Former RCW
26.26.130(7)(b); see State v. Gonzalez, 168 Wn.2d 256, 263, 226 P.3d 131 (2010) (noting
that the court will examine a statute as a whole). It would be inconsistent with the policy
rationale underlying the statutory scheme for the legislature to require a modification
hearing if a parent seeks to change the primary residence within the first 24 months after
the entry of the parentage order, but not require a modification hearing for the same type
of change sought after two years. See McDole, 122 Wn.2d at 610 (noting that custodial
changes are highly disruptive to children and the strong presumption against
modification).
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In re Parentage ofC.MF., No. 88029-8
Mr. Fairfax is not an "acknowledged" parent. The record does not
contain an "acknowledgement" as it is defined in RCW 26.26.305. 8
Mr. Fairfax concedes that his relationship with C.M.F. was established by
adjudication. Resp't's Am. Responsive Br. at 9; see former RCW
26.26.101(2)(c) (2002). In order to file his RCW 26.26.375 petition,
Mr. Fairfax changed or ignored the requirements found in the standard form.
See CP at 68. RCW 26.26.375 was not the proper basis for his action.
Ms. Simpson argues that it was Mr. Fairfax's use of the wrong statutory
basis and accompanying form that caused the court to set the matter for a
hearing without first inquiring into whether there was adequate cause to
modify the custody decree. 9 Br. ofPet'r at 14. Mr. Fairfax counters that both
8
Among other requirements, to be an acknowledged parent, a valid acknowledgment
must be filed with the state registrar and signed by both parents under penalty of perjury.
RCW 26.26.305(1)(b), (e).
9
Ms. Simpson additionally argues that because the court never went through the adequate
cause analysis required for modification, that the court lacked subject matter jurisdiction
over the action. Br. of Pet'r at 9, 17-18. Ms. Simpson is mistaken. This court has
recognized that
"the superior courts of this state are courts of general jurisdiction and have
power to hear and determine all matters legal and equitable in all
proceedings known to the common law, except in so far as those have been
expressly denied; that the jurisdiction of a court of equity over the persons,
as well as the property, of infants has long been recognized; and that the
right of the state to exercise guardianship over a child does not depend on a
statute asserting that power."
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In re Parentage ofC.MF., No. 88029-8
the 2011 amendment to former RCW 26.26.130(7) and the court's reservation
of a "residential schedule" allow him to avoid the adequate cause and
modification requirements by bringing a standard petition for a parenting plan.
Resp't's Suppl. Br. at 17-19; Resp't's Am. Responsive Br. at 24-25. For the
reasons discussed above, Mr. Fairfax is mistaken. Even assuming the
parentage order was not a custody decree or that the issue of custody was
reserved, Mr. Fairfax should not have filed his petition under RCW 26.26.375.
The statutes requiring the use of standard forms, however, are clear that
a court should not dismiss a case because a petitioner uses an improper form.
RCW 26.18.220(3) ("A party's failure to use the mandatory forms or follow
the format rules shall not be a reason to dismiss a case, refuse a filing, or strike
a pleading."). Thus, it would have been improper for the trial court, and it
would be improper for this court, to dismiss this case solely because Mr.
Fairfax used an improper form.
In re Parentage of L.B., 155 Wn.2d 679, 697, 122 P.3d 161 (2005) (quoting In re
Welfare of Hudson, 13 Wn.2d 673, 697-98, 126 P.2d 765 (1942)). In other words,
the court had subject matter jurisdiction even if it proceeded under the incorrect
statutory framework.
-23-
In re Parentage ofC.MF., No. 88029-8
E. Ms. Simpson's Waiting Until After Fairfax Had Presented His Case in
Chief To File Her CR 12(b)(6) Motion Did Not Waive the Threshold
Requirements of Adequate Cause and the Application of the Statutory
Requirements for Modification
Mr. Fairfax argued to the court that by waiting until after his case to file
her CR 12(b)(6) motion, Ms. Simpson had waived any adequate cause and
substantial change in circumstances requirements. Verbatim Report of
Proceedings (Jan. 12, 2011) Excerpt of Proceedings at 8-9. In denying the
motion, the court agreed that it was untimely. Id. at 19.
Ms. Simpson's waiting until Mr. Fairfax had presented his case to make
the motion was certainly a waste of resources, but CR 12(h)(2) allows a party
to bring a motion to dismiss for failure to state a claim at trial on the merits.
Moreover, it would run contrary to the public policy embodied in chapter
26.09 RCW (i.e., protect the "best interests of the child") if the custodial
parent could waive a statutory requirement meant to protect the stability of
the child's life. See RCW 26.09.002; In reMarriage ofLemke, 120 Wn. App.
536, 540, 85 P.3d 966 (2004) (explaining that requiring a court to find
adequate cause prevents harassment). But see Adler, 131 Wn. App. at 721
(finding that the parents could waive the requirement of adequate cause by
agreement for a year after entry of the final parenting plan). Thus, Ms.
Simpson did not waive the adequate cause protections found in RCW
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In re Parentage ofC.MF., No. 88029-8
26.09.270 by waiting until halfway through trial to bring her motion. Instead
of dismissing the petition, the court should have required Mr. Fairfax to
submit the affidavits required by RCW 26.09.270 and meet his burden of
proof that there has been a substantial change in circumstances as required by
RCW 26.09.260.
CONCLUSION
We reverse the decision of the Court of Appeals and remand the case
to the superior court for further proceedings. The superior court's order is a
custody decree, there has been no waiver of the threshold requirement of
adequate cause or the application of the statutory requirements for
modification to that decree, and Mr. Fairfax's improper use of a standard form
does not result in the case's dismissal.
Custody can be taken from Ms. Simpson and transferred to Mr. Fairfax
only if the superior court finds that there is adequate cause and a change in
circumstances as detailed in RCW 26.09.260 and .270. 10
10
Accordingly, we deny Mr. Fairfax's request for attorney fees pursuant to RAP 18.1. At
the Court of Appeals, Ms. Simpson asked the court for fees pursuant to RAP 10.3(a)(5)
for her having to file a motion to strike. We grant her reasonable fees for her work done
in preparing and filing her motion.
-25-
In re Parentage ofC.MF., No. 88029-8
To hold that par~ntage orders of this type are not custody decrees would
potentially leave thousands of parents and children in relative uncertainty
contrary to the legislature's repeated intent. For many parents, the parentage
order designating them the primary caregiver is the only legal document
governing their relationship with their children and the other parent. If those
parentage orders are not custody decrees then these parents could be subjected
to petitions for the establishment of parenting plans and residential schedules
that change the custodial designation/primary residence of the children
involved without the protections found in RCW 26.09.260 and .270. Such
petitions could result in hearings (potentially years after the entry of the
parentage order) costing time and money, while disrupting the lives of
children. Undoubtedly, a disproportionate number of those affected would be
already impoverished women receiving state aid. Such parents rely on their
designation as "custodian" when acquiring day care services in conjunction
with receiving state and federal aid, using police and hospital services, and
when enrolling the children in neighborhood schools.
In keeping with the purposes of the Parenting Act of 1987, however,
we reinstate the temporary orders in place before the superior court.
Dismissing the case outright, with a determination that the parentage order is
-26-
In re Parentage ofC.MF., No. 88029-8
a custody decree, could result in C.M.F. being temporarily displaced from her
home of the last few years. We preserve the stability ofC.M.F. 's environment
until this case can be properly and fully resolved. Mr. Fairfax will be allowed
to file the affidavits required by RCW 26.09.270 and proceed to a
modification hearing governed by RCW 26.09.260 if the superior court finds
adequate cause.
Moreover, on remand, if the court finds there is adequate cause and
proceeds to conduct a modification hearing, the court will also need to review
Ms. Simpson's situation anew. The court should not review de novo the
original decree. Instead, the court must focus solely on the suitability of Ms.
Simpson's present environment and must maintain Ms. Simpson as C.M.F.'s
custodian, unless the court makes findings that modification is in C.M.F.' s
best interests.
-27-
In re Parentage ofC.MF., No. 88029-8
WE CONCUR:
-28-
In re Parentage ofC.MF., No. 88029-8
Fairhurst, J. (dissenting)
No. 88029-8
FAIRHURST, J. (dissenting)-This case presents the question of whether
Jonathan Graham Fairfax was required to follow the statutory procedures for
modifications, rather than for initial determinations, in seeking a parenting plan for
his and Amanda Clare Simpson's common child, C.M.F. The majority concludes
that because a prior order establishing Fairfax's parentage designated Simpson as
the custodial parent, Fairfax was required to follow the statutory procedures
governing modification of custody decrees. Because the majority fails to account
for the purposes of the modification statutes and this court's relevant precedent, I
respectfully dissent.
The majority correctly determines that the order establishing Fairfax's
parentage was not a "parenting plan" within the meaning of RCW 26.09.260(1).
However, the majority then determines that the parentage order was a "custody
decree" within the meaning ofRCW 26.09.260(1) and that Fairfax was required to
show adequate cause and substantially changed circumstances in his petition for a
parenting plan for C.M.F. It is certainly true that the parentage order could
1
In re Parentage ofC.MF., No. 88029-8
Fairhurst, J. (dissenting)
reasonably be deemed a "decree," and it most definitely includes a reference to
"custody" ofC.M.F. However, that does not end our inquiry.
"When interpreting a statute, our fundamental objective is to determine and
give effect to the intent of the legislature." State v. Sweany, 174 Wn.2d 909, 914,
281 P.3d 305 (2012). The reasons a party seeking to modify a prior custody decree
must show a substantial change in circumstances are twofold: "[T]o discourage
harassment of the parent who is awarded custody by the disgruntled parent who is
denied it and to assure as much stability as possible in the environment of the
child." In re Habeas Corpus of Rankin, 76 Wn.2d 533, 537, 458 P.2d 176 (1969).
However, regardless of the particular factual scenario, the "primary concern" of
any court addressing a child custody issue "is always the welfare of the child." Id.
It would be unrealistic to assume that this concern [for the welfare of
the child] can be served as well by a court which does not hear
evidence and does not have an opportunity to observe both parents as
it can by one in which the right of one parent to custody is contested
by the other.
ld. Where a prior custody decree is contested, "it can be assumed that all of the
circumstances existing at that time were made known to the court and a sound
discretion was exercised." I d. (emphasis omitted). However, where a prior custody
decree is uncontested, "no such assumption can be indulged." ld. Thus the
purposes for the initial barriers to modification are no longer controlling. ld. at
537-38.
2
In re Parentage o.fC.MF., No. 88029-8
Fairhurst, J. (dissenting)
This court determined that one need not show changed circumstances to
modify an uncontested custody decree long before the original versions of RCW s
26.09.260-.270 were first enacted in 1973. LAWS OF 1973, 1st Ex. Sess., ch. 157,
§§ 26-27; see, e.g., White v. White, 24 Wn.2d 52, 57, 163 P.2d 137 (1945).
However, after these statutes were passed, we reaffirmed the rule that changed
circumstances need not be shown to modify an uncontested custody decree.
Timmons v. Timmons, 94 Wn.2d 594, 598-600, 617 P.2d 1032 (1980).
Rather, the individual seeking to modify the prior decree need only present
facts not considered by the court at the time of the prior decree, regardless of when
the facts arose, which demonstrate "that modification is 'necessary to serve the
best interests of the child[ren] "' and that the court should not "'retain the custodian
established by the prior decree' [based on a showing of] agreement, integration, or
detriment to health." Id. at 599 (first alteration in original) (quoting former RCW
26.09.260(1) (1973)). This rule applies whenever the prior custody decree was
uncontested, regardless of whether the decree was entered by default or agreement.
Id. at 598-99. Though the Court of Appeals suggested otherwise in dictum, it was
incorrect. In re Marriage of Shryock, 76 Wn. App. 848, 852 n.l, 888 P.2d 750
(1995).
Analogously, this court has also held that modification of child support
orders need not be supported by a showing of changed circumstances where the
3
In re Parentage ofC.MF., No. 88029-8
Fairhurst, J. (dissenting)
original order was not based on a court's independent evaluation of the statutory
factors. Pippins v. Jankelson, 110 Wn.2d 475, 480-82, 754 P.2d 105 (1988) (citing
Timmons, 94 Wn.2d 594).
It is clear from the record that the custody provision of the parentage order
here was uncontested, and the court did not conduct an independent evaluation of
the relevant statutory factors. The state of Washington filed the initial petition to
establish C.M.F. 's parentage, seeking "reimbursement for support or assistance
provided to the child for expenses incurred on behalf of the child." Clerk's Papers
(CP) at 8. The parentage order was entered upon the State's motion for summary
judgment. CP at 45. There is no indication in the record that this motion was
contested-the State's summary judgment motion stated C.M.F. 's custody was
undisputed, CP at 31, and the trial court's sole basis for its parentage order was the
State's motion, CP at 45, 61. There is no indication the trial court considered any
of the factors in RCW 26.09. 187(3), which guide the courts' decision making when
setting residential provisions. Therefore, under Timmons, Fairfax was not required
to show adequate cause and substantially changed circumstances.
While the statutes at issue have been modified since Timmons, the relevant
language has remained consistent. The statutory language considered in Timmons
provided, in relevant part:
4
In re Parentage ofC.MF., No. 88029-8
Fairhurst, J. (dissenting)
"The court shall not modify a prior custody decree unless it finds,
upon the basis of facts that have arisen since the prior decree or that
were unknown to the court at the time of the prior decree, that a
change has occurred in the circumstances of the child or his custodian
and that the modification is necessary to serve the best interests of the
child."
Timmons, 94 Wn.2d at 597 (quoting former RCW 26.09.260(1)). RCW
26.09.260(1) now provides, in relevant part:
[T]he court shall not modify a prior custody decree or a parenting plan
unless it finds, upon the basis of facts that have arisen since the prior
decree or plan or that were unknown to the court at the time of the
prior decree or plan, that a substantial change has occurred in the
circumstances of the child or the nonmoving party and that the
modification is in the best interest of the child and is necessary to
serve the best interests of the child.
Absent a showing that our settled precedent IS incorrect and harmful, our
interpretation of this consistent statutory language should remain consistent. State
v. Abdulle, 174 Wn.2d 411, 415, 275 P.3d 1113 (2012).
The purposes for requiring a showing of substantially changed
circumstances before modifying a prior custody decree do not control where the
prior custody decree was uncontested. The prior custody decree at issue here was
uncontested. I respectfully dissent.
5
In re Parentage ofC.MF., No. 88029-8
Fairhurst, J. (dissenting)
:5~/7·
#trril p1
6
In re Parentage of C.M.F.
Combined Opinion