## Facts

- Two divorce custody matters were consolidated on appeal, involving two fathers and two mothers.
- In the original divorce decrees, each mother received custody of her children, subject to conditions requiring the mothers to live “separate and apart” and prohibiting removal of the children from Washington.
- No party appealed the original custody awards or their conditions, making those decrees final.
- After the decrees, the mothers lived together in a lesbian relationship with the children in the same household and publicly acknowledged the relationship.
- The fathers petitioned to modify custody and sought contempt findings, alleging the mothers violated the “separate and apart” condition and took the children out of state.
- The mothers counterpetitioned to modify the decrees by removing the “separate and apart” condition.
- Following a joined modification hearing (with counsel appointed for the children), the trial court denied the fathers’ requests to change custody, kept custody with the mothers, and struck the restriction against the mothers living together.
- The record included evidence that the household functioned as a stable family unit, including shared caregiving and “cross-over” parenting roles between the two mothers.

## Issues

1. Under Washington law, when may a court modify custody provisions or conditions in a divorce decree?
2. Did the evidence support (a) denying the fathers’ petitions to transfer custody and (b) deleting the decree condition requiring the mothers to live “separate and apart”?

## Decision

- The Washington Supreme Court held the original custody awards and their conditions were not subject to relitigation because they were not appealed.
- The court affirmed the denial of the fathers’ petitions to change custody because the fathers did not show a substantial postdecree change requiring a custody transfer in the children’s best interests.
- The court reversed in part the order deleting the “separate and apart” condition, concluding the trial court could not eliminate that condition without applying the custody-modification standard and entering findings tied to changed circumstances and the children’s welfare.
- The case was remanded for further proceedings consistent with the modification standard as to the cohabitation restriction.

## Legal Principles

- Unappealed custody determinations and their express conditions in a divorce decree are binding and may not be attacked in later modification proceedings.
- A custody-related modification requires a subsequent substantial change in circumstances and a showing that the modification is necessary in the best interests of the child.
- A party seeking to transfer custody bears the burden to prove the substantial-change/best-interests requirements.
- Courts may not remove or disregard an existing custody condition simply because the court disagrees with the condition’s original rationale; alteration requires findings satisfying the statutory and decisional modification criteria.

## Conclusion

The court left custody with the mothers because the fathers failed to prove a substantial, welfare-related change justifying a transfer, but it refused to approve an unconditional deletion of the decree’s “separate and apart” requirement without the findings and analysis required for custody-related modifications.


Schuster v. Schuster, 585 P.2d 130 (Wash. 1978)