Erik Nilsen v. Leanne Lowe, 79059-5

Background

Parents Leanne Lowe and Erik Nilsen share twin sons born in 2010; they established a parenting plan in 2012 splitting majority time between parents with reunification in Washington by 2014.
A guardian ad litem (GAL) recommended near-equal time (slightly favoring Lowe) and removal of the statutory relocation presumption; the court adopted that plan in December 2015 (filed corrected version Feb 2016).
In early 2017 Lowe threatened to relocate (Florida) to extract parenting concessions, then filed a formal relocation notice to California (claiming employment, remarriage, and a child’s medical need); GAL found inconsistencies and recommended denial.
Lowe withdrew the relocation petition and sought dismissal of Nilsen’s modification motion; the trial court found her withdrawal and conduct in bad faith, denied dismissal, awarded fees to Nilsen, and required Nilsen to show adequate cause for modification.
Nilsen filed to modify the parenting plan; the trial court found adequate cause (threats of relocation and parental conflict harming children) and after trial modified the plan to increase Nilsen’s residential time. Lowe appealed; this court affirmed.

Issues

Issue	Lowe's Argument	Nilsen's Argument	Held
Whether adequate cause existed to proceed with Nilsen’s modification after Lowe withdrew her relocation petition	Withdrawal ended the relocation basis; therefore no adequate cause remained (relying on Grigsby)	Trial court may permit a modification petition to proceed if petitioner independently shows adequate cause; Lowe’s withdrawal was in bad faith	Court: No error—withdrawal done in bad faith and Nilsen properly made the statutory adequate-cause showing, so the modification could proceed
Whether the court improperly relied on facts known before the most recent adjudicated parenting plan (Dec 2015) to find a substantial change	Court relied “almost entirely” on pre-plan facts, violating RCW 26.09.260 restriction	Court may consider historical facts as context and to assess whether provisions anticipating cooperation were frustrated	Court: Permissible to include prior facts for context and to show failure of anticipated cooperation; use of pre-plan history did not violate statute
Whether there was sufficient evidence of a substantial change in circumstances after Dec 2015 to support modification	No evidence of actual harm; children were doing well, so no substantial change occurred post-2015	Repeated relocation threats, involving children in parental conflict, violation of plan provisions, and recent conduct created risk/harm and justified modification	Court: Substantial evidence supported finding of changed circumstances and the trial court did not abuse its discretion

Key Cases Cited

In re Parentage of Jannot, 149 Wn.2d 123 (2003) (review of adequate-cause determination is for abuse of discretion)
In re Marriage of Grigsby, 112 Wn. App. 1 (2002) (withdrawn relocation generally cannot serve as basis for modification absent independent adequate cause)
In re Marriage of Parker, 135 Wn. App. 465 (2006) (facts not anticipated at the time of decree may be treated as "unknown" for modification purposes)
Selivanoff v. Selivanoff, 12 Wn. App. 263 (1974) (material change can be found where decree anticipates cooperation that does not occur)
In re Marriage of Timmons, 94 Wn.2d 594 (1980) (court may consider facts prior to an uncontested modification)
In re Marriage of McDole, 122 Wn.2d 604 (1993) (custody/parenting-plan modification reviewed for abuse of discretion)
In re Marriage of Frasier, 33 Wn. App. 445 (1982) (court need not wait for measurable harm before protecting children from risky parental conduct)