CHANGE YOUR BENEFICIARY DESIGNATIONS

A new Washington State Court of Appeals decision was issued on June 1, 2015, which makes it clear that if you have not removed your ex-spouse as your beneficiary from your pension or retirement plans that are Federally regulated and you die – your ex-spouse will get the money.  Even when your divorce decree awards you all of your pension or retirement, if you do not change your beneficiary form, the Federal form mandated by ERISA, the state court cannot help your estate make a claim to that money.  The case can be found here – http://www.courts.wa.gov/opinions/pdf/719009.pdf

And, the decision makes it very clear that even where this Decree stated that 100% of the deceased man’s pension plan was awarded to him as his separate property, the old beneficiary designation form which gave his ex-Wife all the proceeds upon his death was controlling  Four years had passed from the time of divorce to the time of death and the man failed to change the form with his employer.  When he died, his ex-Wife received $497,435.77.  The Court of Appeals made it very clear when it overruled the trial court and stated that Federal law preempts a person’s reliance on Washington State Court orders or statutes.  The Court of Appeals did not decide whether there would be an ability in future cases to claim a basis for action against the ex-spouse where there was a private agreement (no specific agreement existed here), but that little loophole is not a reason to fail to act now.

So, if you have not changed your beneficiary designations on your pension or retirement plans to conform with your Decree, be warned – your pre-Divorce beneficiary designation will control.

I think my child’s other parent is under the influence . . . .

As a parent who is either going through a dissolution proceeding, or has an existing Parenting Plan or other custody order, there may come a time when you suspect that the other parent is suffering from an addiction to drugs or alcohol. Even if you don’t believe that there is an addiction problem, you may learn that the other parent is occasionally impaired due to the use of an intoxicant. Many clients ask about their options in these circumstances.

Warning Signs of Commonly Abused Drugs (http://www.helpguide.org/articles/addiction/drug-abuse-and-addiction.htm)

• Marijuana: Glassy, red eyes; loud talking, inappropriate laughter followed by sleepiness; loss of interest, motivation; weight gain or loss.
• Depressants (including Xanax, Valium, GHB): Contracted pupils; drunk-like; difficulty concentrating; clumsiness; poor judgment; slurred speech; sleepiness.
• Stimulants (including amphetamines, cocaine, crystal meth): Dilated pupils; hyperactivity; euphoria; irritability; anxiety; excessive talking followed by depression or excessive sleeping at odd times; may go long periods of time without eating or sleeping; weight loss; dry mouth and nose.
• Inhalants (glues, aerosols, vapors): Watery eyes; impaired vision, memory and thought; secretions from the nose or rashes around the nose and mouth; headaches and nausea; appearance of intoxication; drowsiness; poor muscle control; changes in appetite; anxiety; irritability; lots of cans/aerosols in the trash.
• Hallucinogens (LSD, PCP): Dilated pupils; bizarre and irrational behavior including paranoia, aggression, hallucinations; mood swings; detachment from people; absorption with self or other objects, slurred speech; confusion.
• Heroin: Contracted pupils; no response of pupils to light; needle marks; sleeping at unusual times; sweating; vomiting; coughing, sniffling; twitching; loss of appetite.

As an initial matter, if you have a reasonably good co-parenting relationship with the other parent, the first step is to directly address the issue, preferably at a time when you do not believe they are impaired. Without blaming, shaming or creating a scene, try to express your concerns about the perceived issue. Make sure you have this conversation without the child present. Keep the conversation child focused, and express your concerns relative to your child’s health and safety. Be clear with the other parent that they are free to live their life as they choose, but when those choices impact your shared child’s safety you have an obligation to protect the child.

If a parent is impaired when you are dropping off your child, waiting for a “good time” to have a conversation may not be an option, as the child’s immediate safety may be at risk. Under those circumstances you may have to immediately intervene by either suggesting the visit be rescheduled, or offering to drive the child (and perhaps the other parent) to your own residence. If the other parent demands to leave with the child, you may have to refuse. Ultimately, you will need to assess the risk to the child, with the awareness that a refusal to permit residential time to proceed as scheduled may be determined to be contemptuous. That is to say, the court may find your refusal to permit visitation was in bad faith, and you may face sanctions or other penalties, and the other parent may be granted make-up time and awarded attorney fees.

If there is a history of substance abuse, the issue may also have been addressed in the Parenting Plan. One parent may have the authority to demand that the impaired parent take a drug test, and visitation will only be permitted if the impaired parent produces a clean result. There are several types of drug tests, and you will want to ensure the appropriate test is utilized for the person’s substance of choice. http://www.questdiagnostics.com/home/companies/employer/drug-screening/products-services.html. If you believe substance abuse is an issue, and a Parenting Plan has not been entered by the court, you may want to consider these types of safeguards.

Ultimately, it may be necessary for the parent to engage in substance abuse treatment, either inpatient or outpatient. Hopefully, the parent will voluntarily engage in services, but if not, you may need to seek court intervention to attempt to modify residential arrangements until the parent receives the necessary treatment. The key to any intervention, testing or treatment, should be to help the parent so as to facilitate a continued relationship with the child in an environment that is safe for the child.

Is child relocation a “slam dunk” for primary residential parents?

Washington’s statute on relocation of a child heavily favors permitting the child’s relocation with the primary residential parent. Many clients ask if it is even worth objecting to the relocation. The answer, unfortunately, is “it depends.” An important distinction to remember, however, is the court cannot prevent a parent from relocating. The court can only restrain a parent’s ability to take the child with them.

RCW 26.09.405 et. seq. requires that the “person with whom the child resides a majority of the time” shall provide notice to the other parent (or anyone entitled to residential time with the child) if they intend to relocate with the child. This has been interpreted to mean the parent who is designated as the primary residential parent in the Parenting Plan, but can also mean the person who actually has residential time with the child for more than 50% of the time. That is to say, the designation in the Parenting Plan will not, per se, carry the day.

Indeed, in my first relocation trial, the court actually did an analysis of the amount of time spent with each parent and determined a percentage allocation of parenting time to each parent. I have found that the more time the child spends with the alternate residential parent, the more the court will closely examine the request to relocate.

The statute further provides that there is a presumption that the relocation will be permitted. RCW 26.09.520. In layman’s terms, this means that unless the objecting parent can show the harm to the child outweighs the benefit to the child, the relocation will be permitted. The court is required to evaluate ten statutory factors to decide whether to permit or deny the relocation:

(1) The relative strength, nature, quality, extent of involvement, and stability of the child’s relationship with each parent, siblings, and other significant persons in the child’s life;

(2) Prior agreements of the parties;

(3) Whether disrupting the contact between the child and the person with whom the child resides a majority of the time would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation;

(4) Whether either parent or a person entitled to residential time with the child is subject to limitations under RCW 26.09.191;

(5) The reasons of each person for seeking or opposing the relocation and the good faith of each of the parties in requesting or opposing the relocation;

(6) The age, developmental stage, and needs of the child, and the likely impact the relocation or its prevention will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child;

(7) The quality of life, resources, and opportunities available to the child and to the relocating party in the current and proposed geographic locations;

(8) The availability of alternative arrangements to foster and continue the child’s relationship with and access to the other parent;

(9) The alternatives to relocation and whether it is feasible and desirable for the other party to relocate also;

(10) The financial impact and logistics of the relocation or its prevention; http://apps.leg.wa.gov/rcw/default.aspx?cite=26.09.520

Those factors are not weighted such that one is more meaningful than another. Nor is there any instruction under the law regarding the required outcome where, for example, five factors weigh in favor of relocation and five factors weigh against relocation. There is also no indication that these factors are the exclusive factors for the court’s consideration. Ultimately the decision as to whether or not to permit the relocation of the child is within the significant discretion of the trial court.

Other information that may be pertinent, but not specifically outlined in these factors include:

• Distance between the proposed new location and the residence of the objecting parent, including any difference in time zones;
• Whether there are significant cultural differences or language barriers in the proposed new location;
• Whether or not the proposed location is a signatory to the Hague Convention;
• The ability of the parents to cooperatively parent prior to the proposed relocation;
• What impact new partners have on the relocation and whether the new partner facilitates and encourages the child’s continued      relationship with the alternate residential parent;
• Even if neither parent was subject to restrictions (RCW 26.09.191) in the existing Parenting Plan, whether those issues need to be  reevaluated (including substance abuse and mental health issues).

There are also various studies and professional publications on the risk factors and longitudinal impacts of relocation on the parent-child relationship, which are well briefed by Dr. Bernardo Mora in his article for the Journal of the American Academy of Psychiatry and the Law. http://www.jaapl.org/content/38/2/291.full. However, the way the Washington statute is currently written, the focus is more on the relocating parent, and less on the best-interests of the child sought to be relocated.

Given the many considerations, if a parent wishes to prevent the relocation of a child, it is often advisable to request the appointment of a parenting professional that is well versed in relocation actions. Also be prepared to spend considerable amounts of time and money in a relatively short period of time, as the determinations on relocation are expedited and require significant court and professional intervention.