1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 The matter now comes before the Court on the respondent mothers Motion for Revision in which she

e asserts that it was inappropriate for a Court Commissioner to find that she had failed to meet the statutorily required adequate cause standard for obtaining a hearing on her petition to modify a parenting plan. Pursuant to SUPERIOR COURT OF WASHINGTON COUNTY OF KING In re the Marriage of: JOHN P. CUSHING, JR., Petitioner, and TRISHA ANN CONLON, Respondent. No. 04-3-04667-3 SEA ORDER ON MOTION FOR REVISION RE: ADEQUATE CAUSE DETERMINATION

RCW 2.24.050, this Court has reviewed the record and heard oral argument and, deeming itself fully advised in the premises, now rules as follows.

ORDER RE: ADEQUATE CAUSE - Page 1 of 7

HON. WILLIAM L. DOWNING

KING COUNTY SUPERIOR COURT 516 THIRD AVE.; C-203 SEATTLE, WA 98104

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It has been observed by Washington courts that litigation over child custody is generally inconsistent with a childs welfare. In re: Marriage of Roorda, 25 Wn. App. 849, 852, 611 P. 2d 794 (1980). Because of the strong presumption in favor of residential continuity and, therefore, against modification of a parenting plan, the law places a burden upon the party seeking a modification to establish three distinct elements. These are (a) that there has been a substantial change in circumstances of the child or the non-moving party, (b) that modification is now necessary to serve the best interests of the child and (c) that one of several statutorily enumerated conditions exist. The condition alleged to exist in this case is that the childs

present environment is detrimental to the childs 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. RCW 26.09.260(2). The above three propositions are what the mother in this case would need to prove at a hearing on the merits of her motion for modification. At this stage, what is required of her is that she establish adequate cause that the case ought to proceed to such a hearing. To meet the present standard, she must put before the court factual allegations which, if true, would overcome the presumption of custodial continuity. In re: Marriage of Mangiola, 46 Wn. App. 574, 578-9, 732 P. 2d 163 (1987); RCW 26.09.270. It is essential that what the mother puts before the Court at this stage are facts and not mere conclusory allegations although, admittedly, sometimes that line can blur. ORDER RE: ADEQUATE CAUSE - Page 2 of 7
HON. WILLIAM L. DOWNING
KING COUNTY SUPERIOR COURT 516 THIRD AVE.; C-203 SEATTLE, WA 98104

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The poignant facts of this case are well known.

The parties have two

teenage sons, the younger of whom primarily resides with the father in King County while the older resides primarily with the mother in Oregon. During school breaks and vacations, both children spend time with both parents. Since sometime

subsequent to entry of the current parenting plan in April of 2005, the fathers home has been shared with Kristine Cushing, his former wife who in 1991 had killed the two children born of her marriage to Mr. Cushing. After an agreed insanity acquittal, she was successfully treated and, in July of 2005, she was unconditionally discharged by the state of California. Her currently treating psychiatrist has

summarily opined that she does not present any danger to [Mr. Cushings son] and she should have no problems continuing to live in the home with [him]. First of all, this court has no hesitation in concluding that, as a matter of fact, there has been a substantial change in circumstances. That Mr. Cushing is residing with Kristine Cushing and that she has the history that she has are agreedupon facts. These facts reflect a change in circumstances and one that must be characterized as substantial in that they impact the day-to-day life of the child. More problematic are the requisite elements (b) and (c) as enumerated above. This is so both because, as elements go, their phrasing sounds distinctly more conclusory than factual (e.g., best interests, detrimental and outweighed) and also because of the mothers lack of any current evidence tending to meaningfully address them on a factual level. This latter absence has left

unrebutted the well-documented propositions that Kristine Cushing is presently HON. WILLIAM L. DOWNING ORDER RE: ADEQUATE CAUSE - Page 3 of 7 KING COUNTY SUPERIOR COURT
516 THIRD AVE.; C-203 SEATTLE, WA 98104

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doing quite well psychologically and that the child residing with his father (and with her) is doing quite well academically, emotionally and otherwise. The significance of the former observation is that these elements are not conducive to being established by direct factual assertions but rather as judgments logically inferable from the underlying factual assertions. In a different statute from the ones directly before the court, the Washington legislature has made a pronouncement that must be considered pertinent here. In RCW 26.09.191(2)(b), it is mandated that a parents residential time with a child shall be limited if it is found that the parent resides with a person who has engaged in any of the following conduct: a history of an assault that causes grievous bodily harm. This is broad language that is certainly applicable here, pointing to a legislatively recognized inference of detriment that in general may be seen as flowing logically from the agreed facts.

Of course, this statutory restriction need not always be imposed in order to prevent detriment and to serve the childs best interests. It is negated where the court expressly finds based on the evidence that the probability that the other persons harmful or abusive conduct will recur is so remote that it would not be in the childs best interests to apply the limitations. RCW 26.09.191(2)(n). It is this Courts view that this based on the evidence determination is one to be made after the evidence has been developed beyond that available at a threshold hearing like HON. WILLIAM L. DOWNING ORDER RE: ADEQUATE CAUSE - Page 4 of 7 KING COUNTY SUPERIOR COURT
516 THIRD AVE.; C-203 SEATTLE, WA 98104

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the present one. Accordingly, it would be premature to use this subsection to defeat this adequate cause determination. Although the facts stressed in the mothers arguments date almost entirely from twenty years ago, she is not altogether lacking in recent evidence. It is of significance that Mr. Cushing admittedly used deception in concealing from her facts about who it was that was living with her son. This was despite a parenting plan provision stating that Both parents shall make a sincere effort to maintain open, ongoing communications concerning the development, needs and interests of the children and shall discuss together any major decisions that have to be made about or for the children. Negative inferences can be drawn both from the fathers act of deception itself and also as to the reasons he may have felt the need to conceal the true facts. The Court will GRANT the mothers motion for revision and find that adequate cause has been established for this modification case to proceed. By way of

temporary orders pending further proceedings, the Court declines to make any change in the residential schedules that are in place. The Court will impose these further conditions: (1) the father shall insure that there are no firearms or other deadly weapons in his home; (2) the father shall not reside with Kristine Cushing if she is not in compliance with the recommendations of her treatment providers, including recommendations regarding medications; and (3) the father shall comply fully with any safety plan imposed by Child Protective Services. ORDER RE: ADEQUATE CAUSE - Page 5 of 7
HON. WILLIAM L. DOWNING
KING COUNTY SUPERIOR COURT 516 THIRD AVE.; C-203 SEATTLE, WA 98104

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The Court does intend to enter an order appointing a guardian ad litem for the children to perform a limited investigation and to speak as an advocate for the childrens interests. Counsel should confer and submit an agreed order making this appointment as soon as possible. The Court envisions the GAL speaking with the children, making a home visit to the fathers residence, interviewing both parents and Kristine Cushing, contacting collateral sources of information such as teachers who can offer information concerning the younger childs adjustment and emotional status, and, finally, consulting with Kristine Cushings treatment provider(s) and reviewing her treatment records. The Court does not intend to order any forensic examination of Kristine Cushing. The purpose of the GALs investigation is to

evaluate whether evidence exists supporting the contention that the childs current living arrangement is detrimental to his well-being. At the same time, the GAL may choose to look into whether what the Court Commissioner termed the mothers media campaign has been unnecessarily harmful to the children and constitutes an abusive use of conflict. The Court would direct that the GAL prepare and submit an interim report within ninety days of appointment. At that time, the Court will consider whether the case should proceed as a major modification case (in which changes to the residential schedule are to be considered) or if the relief sought should be limited to that of a minor modification adding safeguards to the existing parenting plan. Dated this 29th day of August, 2011. ORDER RE: ADEQUATE CAUSE - Page 6 of 7
HON. WILLIAM L. DOWNING
KING COUNTY SUPERIOR COURT 516 THIRD AVE.; C-203 SEATTLE, WA 98104

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Hon. William L. Downing

ORDER RE: ADEQUATE CAUSE - Page 7 of 7

HON. WILLIAM L. DOWNING

KING COUNTY SUPERIOR COURT 516 THIRD AVE.; C-203 SEATTLE, WA 98104

King County Superior Court Judicial Electronic Signature Page

Case Number: Case Title:
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04-3-04667-3 CUSHING VS CUSHING

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ORDER

Signed by Judge: William Downing 8/29/2011 9:00:00 AM Date:

Judge William Downing

This document is signed in accordance with the provisions in GR 30. 70CC4E84F95D1278D4CC8C5D912EF7C33265BC33 Certificate Hash: Certificate effective date: 12/1/2010 9:38:13 AM 11/30/2012 9:38:13 AM Certificate expiry date: CN=Washington State CA B1, OU=State of Washington Certificate Issued by: CA, O=State of Washington PKI, C=US
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