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In re Marriage of Anderson

The Court of Appeals of Washington, Division Three. Panel One
Nov 4, 2004
124 Wn. App. 1003 (Wash. Ct. App. 2004)

Opinion

No. 22209-8-III

Filed: November 4, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Spokane County. Docket No: 02-3-00984-9. Judgment or order under review. Date filed: 06/12/2003. Judge signing: Hon. Neal Q. Rielly.

Counsel for Appellant(s), Matthew J. Dudley, Attorney at Law, 2824 E 29th Ave 1b, Spokane, WA 99223.

Counsel for Respondent(s), Dustin Douglass Deissner, Deissner Law Firm PLLC, 1707 W Broadway Ave, Spokane, WA 99201-1817.

Susan E. Sprague-Embree, Attorney at Law, 320 W Spofford Ave Ste B, Spokane, WA 99205-4750.


The trial court entered a parenting plan wherein Lari Anderson, the mother, had primary custody of the parties' minor child. Kendall Anderson, the father, had daytime visitation and two overnights a week. Claiming this plan was an abuse of discretion, Mr. Anderson appeals. We affirm.

Kendall and Lari Anderson married in October 2000 and separated in October 2001. They had one child, Lacey, who was born March 1, 2002. Lacey was diagnosed with Down's syndrome at birth.

In May 2002, the court entered a temporary parenting plan with Ms. Anderson as the primary parent. The plan provided for Mr. Anderson to have Lacey from 5:00 p.m Thursday until 5:00 p.m. Saturday. He also had visitation with Lacey every Monday and Tuesday from the time he got off work until 8:00 p.m. The court also appointed a guardian ad litem.

In August, the court reviewed the temporary plan. The court imposed this parenting schedule: Mr. Anderson would have Lacey from 5:00 p.m. Monday until 5:00 p.m. Tuesday, and from 5:00 p.m. Thursday until 12:00 p.m. Saturday.

After trial in June 2003, the court entered a permanent parenting plan. It determined shared custody was not in the child's best interests and awarded primary custody to Ms. Anderson. Mr. Anderson had visitation every Tuesday from 2:00 p.m. until 7:00 p.m. and every Thursday from 3:00 p.m. until Saturday at 12:00 p.m. One weekend a month, Mr. Anderson had visitation from 5:00 p.m. Thursday until 11:00 a.m. Sunday. Mr. Anderson appeals.

A court's determination regarding residential placement of children is reviewed for abuse of discretion. In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993). A trial court's findings of fact will be upheld if they are supported by substantial evidence. In re Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993).

Mr. Anderson claims the court erred by not entering findings consistent with RCW 26.09.187(3)(b). That statute applies to parenting plans calling for frequent moves between households for brief and substantially equal intervals. The court, however, did not enter this type of plan. The requirements of RCW 26.09.187(3)(b) are thus inapplicable.

But Mr. Anderson claims the facts supported an entry of shared custody pursuant to RCW 26.09.187(3)(b):

(b) The court may order that a child frequently alternate his or her residence between the households of the parents for brief and substantially equal intervals of time only if the court finds the following:

(i) No limitation exists under RCW 26.09.191;

(ii) (A) The parties have agreed to such provisions and the agreement was knowingly and voluntarily entered into; or

(B) The parties have a satisfactory history of cooperation and shared performance of parenting functions; the parties are available to each other, especially in geographic proximity, to the extent necessary to ensure their ability to share performance of the parenting functions; and

(iii) The provisions are in the best interests of the child.

The guardian ad litem testified he was concerned about Lacey's ability to feel secure if she did not have a primary residence. A child without a primary residence could either become untrusting and, perhaps a behavioral problem, or over-trusting. The guardian believed Lacey might be over-trusting, a concern also of Ms. Anderson's. The court agreed and determined a shared parenting plan was not in Lacey's best interests.

Mr. Anderson claims a shared plan was in Lacey's best interests because she was thriving under the temporary schedule. The guardian did report that Lacey was thriving. He was concerned, however, about her lack of a primary residence. The facts support the court's finding that a shared arrangement was not in the child's best interests. The court did not err by refusing to implement a plan pursuant to RCW 26.09.187(3)(b). Decisions regarding residential placement must be made in the best interests of the children and only after considering the factors set forth in RCW 26.09.187(3). When the court adopts a permanent parenting plan, RCW 26.09.187(3)(a) requires the court to consider:

(i) The relative strength, nature, and stability of the child's relationship with each parent, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;

(ii) The agreements of the parties, provided they were entered into knowingly and voluntarily;

(iii) Each parent's past and potential for future performance of parenting functions;

(iv) The emotional needs and developmental level of the child;

(v) The child's relationship with siblings and with other significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities;

(vi) The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and

(vii) Each parent's employment schedule, and shall make accommodations consistent with those schedules.

Factor (i) shall be given the greatest weight.

Under RCW 26.09.002, `the best interests of the child shall be the standard by which the court determines and allocates the parties' parental responsibilities.' While the statute requires the trial court to consider certain factors, it does not require the court to list and address each factor expressly in its findings. Although the trial court did not make a separate finding with regard to each factor here, it did indeed consider the factors in RCW 26.09.187(3)(a).

Based upon these considerations, the court determined the child's best interests would be served by having primary residential care with Ms. Anderson. The court noted both parents loved the child and the child loved both parents. But the court voiced its concern over the fact that Mr. Anderson made it difficult for Ms. Anderson to breast feed Lacey. The court was further concerned about Mr. Anderson's lack of judgment in bringing Lacey to court. The court stated both were capable parents, but Ms. Anderson had performed more of the basic parenting functions. She was also better able to meet the child's emotional needs. The court commented that a back-and-forth schedule including overnight was too disruptive for a young child. The court entered the parenting plan it determined was in the child's best interests. It did not abuse its discretion in so doing. Affirmed.

During the trial, there was testimony Mr. Anderson had his live-in girlfriend bring Lacey to court to drop her off at the courthouse daycare. In its ruling, the court indicated it found this to be poor judgment. Mr. Anderson claims the court abused its discretion by considering this. But it was part of the testimony at trial and a fact the court could consider in making its custody determination.

Mr. Anderson contends the court erred by making this finding. With the exception of the first two months of the child's life, the parties' parenting functions were regulated by a temporary parenting plan. See Kovacs, 121 Wn.2d at 809 (presumptions cannot be made from the provisions of the temporary plans). Prior to the temporary plan, however, Ms. Anderson did provide more of the parenting functions. The finding was proper.

Mr. Anderson argues the court erred by making this finding. But the evidence supports it.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

SWEENEY, J. and BROWN, J., Concur.


Summaries of

In re Marriage of Anderson

The Court of Appeals of Washington, Division Three. Panel One
Nov 4, 2004
124 Wn. App. 1003 (Wash. Ct. App. 2004)
Case details for

In re Marriage of Anderson

Case Details

Full title:In re the Marriage of: KENDALL ANDERSON, Appellant, and LARI B. ANDERSON…

Court:The Court of Appeals of Washington, Division Three. Panel One

Date published: Nov 4, 2004

Citations

124 Wn. App. 1003 (Wash. Ct. App. 2004)
124 Wash. App. 1003