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In re Marriage of Schneider

filed: July 5, 1996.

IN RE THE MARRIAGE OF: MARGARET E. SCHNEIDER, (N/K/A SHEPPARD) APPELLANT,
v.
KURT W. SCHNEIDER, RESPONDENT.



Superior Court of Kitsap County. Superior Court Docket No. 92-3-01835-2. Date Filed In Superior Court: October 14, 1994. Superior Court Judge Signing: M. Haberly.

Written By: Turner, J., Concurred IN By: Seinfeld, CJ, Houghton, Acj

Author: Turner

TURNER, J. -- Margaret Sheppard, formerly known as Margaret Schneider, appeals a restraining order issued upon her divorce from Kurt Schneider. The order prohibits her from moving from the State of Washington with the couple's minor child. We hold that Sheppard failed to show in this case that the order placed an unreasonable burden upon her constitutional right to travel or that relocating would be in the best interests of the child. The trial court's findings in this six-day trial are supported by substantial evidence and demonstrate a careful balancing of competing interests. We hold that the trial court did not abuse its discretion by originally imposing the residency restriction. Affirmed.

FACTS

Margaret Sheppard and Kurt Schneider separated in December 1992 and were divorced on September 9, 1994. They had one child, born August 1, 1989. Custody and visitation of the child were in dispute during the dissolution process. After a six-day trial, the trial court approved an amended parenting plan under which the child would live a majority of the time with her mother. The residential schedule also provided for the child to spend time regularly with her father.

The dissolution decree says "neither party shall remove the residency of their minor child from the Puget Sound area of Washington without further court order." The court found that "[a] continuing restraining order against both parties is necessary because: The court is not prepared to allow the residence of the minor child of the parties to be removed from the state [sic] of Washington at the present time."*fn1 The Parenting Plan says:

(1) Mother is presently restrained from changing [the child's] residence from the state [sic] of Washington. She is not, however, restrained from leaving Washington for purposes of vacations, and/or short term employment, so long as it does not interfere with the father's regularly scheduled visitation. If, at some future time the mother wishes to renew her request to permit such a move, she must obtain a further court order and provide a minimum of 60-day prior notice to Mr. Schneider.*fn2

Sheppard now appeals the residency restriction ordered by the court.

ANALYSIS

By enacting the Parenting Act in 1987, the Legislature attempted to reduce battles over child custody and visitation by focusing on continued joint "parenting" responsibilities.*fn3 An important element of the dissolution proceeding is the adoption of a "parenting plan"*fn4 that will "protect the best interests of the child consistent with RCW 26.09.002."*fn5 RCW 26.09.002 sets forth the policy of the Parenting Act as follows:

Parents have the responsibility to make decisions and perform other parental functions necessary for the care and growth of their minor children. In any proceeding between parents under this chapter, the best interests of the child shall be the standard by which the court determines and allocates the parties' parental responsibilities. The state recognizes the fundamental importance of the parent-child relationship to the welfare of the child, and that the relationship between the child and each parent should be fostered unless inconsistent with the child's best interests. The best interests of the child are served by a parenting arrangement that best maintains a child's emotional growth, health and stability, and physical care. Further, the best interest of the child is ordinarily 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.

(Emphasis added.)

In ordering a parenting plan, the trial court is required to set a "residential schedule" that will allow the child contact with both parents. "The court shall make residential provisions for each child which encourage each parent to maintain a loving, stable, and nurturing relationship with the child, consistent with the child's developmental level and the family's social and economic circumstances." RCW 26.09.187(3)(a). The Parenting Act gives the trial court broad discretion in applying the mandated "best interests of the child" standard. See In re Marriage of Kovacs, 121 Wash. 2d 795, 801, 809-810, 854 P.2d 629 (1993). We note that the court in Matter of Marriage of Booth, 114 Wash. 2d 772, 779, 791 P.2d 519 (1990), said:

"We once again repeat the rule that trial court decisions in a dissolution action will seldom be changed upon appeal. Such decisions are difficult at best. Appellate courts should not encourage appeals by tinkering with them. . . ." A reviewing court must defer to the sound discretion of the trial court unless ...


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