In Re the Marriage of Timmons

Dolliver, J.

(dissenting) — I agree with the majority that in a custody modification proceeding RCW 26.09.260(1) allows consideration of predecree facts which were unknown to the court at the time of the prior uncontested dissolution. I do not agree, however, with the conclusion of the majority that the predecree facts provide substantial evidence for a change of custody. Therefore, I dissent.

RCW 26.09.260 states the court shall not modify a prior custody decree unless "a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the bests interests of the child." Custody shall not be changed unless one of three additional requirements has been met:

(a) The custodian agrees to the modification;.
(b) The child has been integrated into the family of the petitioner with the consent of the custodian; or
(c) The child's present environment is detrimental to his physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

(Italics mine.) RCW 26.09.260(1).

Clearly, Wendy did not agree to the modification and, therefore, RCW 26.09.260(1) (a) has not been fulfilled. The trial judge held that modification was necessary in the best interests of the children and could be justified under either RCW 26.09.260(1)(b) or (c).

RCW 26.09.260(l)(c) permits modification of custody only if the present environment of the children is detrimental to their physical, mental or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantages of a custody change. The trial judge concluded that the children's living situation *603with their mother and her husband, Moreton Rolleston III, was detrimental to the children's mental and emotional health. The record does not support this conclusion. As the majority noted:

The trial court found that Wendy had exhibited and was exhibiting some instability in that she had been engaged three times and had remarried, all in the year prior to trial, and on at least one occasion had attempted suicide. After observing the parties in court during a 2-day trial, the judge concluded that Wendy's testimony and actions at trial reflected an insecurity which was further evidence of her instability. Wendy failed to visit a child from a prior marriage, and she and her children were living in overcrowded conditions in Wendy's sister's house. Elmer and his present wife, in contrast, had provided and were providing a stable and loving atmosphere for the children and the children were happier there.

None of this evidence has been shown to be detrimental to the children's physical, mental or emotional health. There is no indication that the insecurity the trial judge detected in Wendy will continue or that it has had any negative effect on the children's physical or emotional health. It does not follow that Wendy could forget about her children merely because she is no longer in contact with a child from a previous marriage. Moreover, the living situation which concerned the court was only temporary until Wendy could join her husband in Georgia, and the fact that five children were sleeping in three beds has not been proven harmful to the children. Nevertheless, any concern the court might have had has been eliminated. Wendy's new home in Georgia will not be crowded. There are three bedrooms upstairs and room for more people downstairs. Rolleston is a pilot for Eastern Airlines and will provide adequately for the children. In addition, the children will be able to fly to Seattle several times a year for visitation with their father for a nominal fee.

In previous decisions, this court has been reluctant to disturb a custody disposition made by the trial court and will do so only if the trial court has abused its discretion. *604Dykes v. Dykes, 69 Wn.2d 874, 876, 420 P.2d 861 (1966). RCW 26.09.260(1), however, expresses a preference for the custodial parent even if the original decree was taken by default. Custodial changes are viewed as highly disruptive for a child and are to be discouraged. Changes in custody should not be made simply because the trial court prefers one parent to the other. Anderson v. Anderson, 14 Wn. App. 366, 541 P.2d 996 (1975), review denied, 86 Wn.2d 1009 (1976); see In re Marriage of Roorda, 25 Wn. App. 849, 611 P.2d 794 (1980). Rather, modification should be permitted only when the requirements of RCW 26.09.260 have been met. The trial court's conclusion that modification of custody was warranted under RCW 26.09.260(1) (c) is not supported by substantial evidence and the original decree awarding custody to Wendy should not be disturbed.

Nor is there substantial evidence to support the trial court's conclusion that the children had become integrated into Elmer's family with Wendy's consent as required by RCW 26.09.260(l)(b). The majority concedes that " [tjhere is a serious question whether there is substantial evidence to support the 'integration' required by the statute." The issue was not pursued, however, as the majority found the modification order was properly granted because of detriment to the children's health. Since I believe the record does not support a finding of detriment to their health, it is also necessary to examine the integration issue.

RCW 26.09.260(1) (b) requires integration into petitioner's family with the consent of the custodian. Both integration and consent must be found. The children resided with Elmer from June 1977 until June 1978. Wendy allowed the children to stay with Elmer only until "she got on her feet" again. During this time, the children spent the weekends with her. In February 1978, Wendy requested the children back but permitted them to remain at Elmer's until the end of the school year so that the children would not have to change schools. It is clear that Wendy intended the children to live with her and there is absolutely no evidence *605that she consented to a surrender of legal custody. The requirements of RCW 26.09.260(1)(b) have not been met.

The best interests of the children do not require a change in custody. The original decree should be modified to allow Wendy to take the children with her to Georgia.

I dissent.

Brachtenbach and Horowitz, JJ., concur with Dolli-ver, J.