Marriage Of: Rachelle Black, Appellant V. Charles Black, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
RACHELLE K. BLACK, No. 46788-7-II
Appellant,
v.
CHARLES W. BLACK, UNPUBLISHED OPINION
Respondent.
SUTTON, J. — Rachelle Black appeals the trial court’s order and entry of the final parenting
plan and decree of dissolution from Charles Black restricting her speech and conduct related to her
sexual orientation and religion, designating Charles as the primary residential parent, allocating
sole decision making authority to Charles for religious upbringing, education, and daycare,
denying her request for spousal maintenance, and ordering her to pay child support.
We hold that the trial court erred when it restricted Rachelle’s conduct and speech about
religion and sexuality without making any specific findings of harm to the children, and erred
when it allocated Charles sole decision-making authority regarding religious upbringing and
daycare. Additionally, we hold that the trial court did not err when it designated Charles as the
primary residential parent, allocated sole decision-making authority for education to Charles,
denied Rachelle spousal maintenance based on Charles’s inability to pay, and required Rachelle
to pay child support. Accordingly, we affirm in part, reverse in part, and remand to the trial court
for proceedings consistent with this opinion.
Filed
Washington State
Court of Appeals
Division Two
March 8, 2016

No. 46788-7-II
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FACTS
Charles and Rachelle Black married in 1994 and have three children from the marriage.
Charles and Rachelle raised their children in a conservative Christian home and sent the children
to religious-based schools. For the majority of the marriage, Rachelle did not work outside of the
home.
In December 2011, Rachelle informed Charles that she was a lesbian, and began a romantic
relationship with another woman. Rachelle continued to reside in the same home with Charles
and the children, although she and Charles occupied separate rooms and rarely interacted.
In May 2013, Rachelle filed for divorce. Rachelle and Charles submitted proposed
parenting plan orders to the court, each seeking designation as the primary residential parent and
sole decision-making authority regarding the children’s education. Rachelle wanted the children
to attend public school, while Charles wanted them to remain in their religious-based private
schools. Rachelle requested joint decision-making for religious upbringing, but Charles requested
sole decision-making. Charles still attended their family church, while Rachelle did not, and she
no longer considered homosexuality to be a sin. The trial court appointed a guardian ad litem
(GAL) to investigate and report “all issues relating to the development of a parenting plan.” CP
at 19.
In November 2013, the GAL arrived at the Blacks’ home and discovered that Rachelle and
Charles had just told the children the evening before that they were divorcing. The GAL was not
able to speak with the oldest child, and spent about an hour total with the younger two children.
That was the GAL’s only interview with the children, and she did not attempt to speak with them
again.

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The children started seeing a therapist in early 2014. According to the therapist, the
children had some difficulty with the divorce, but they were adjusting. During one counseling
session with the therapist, Rachelle told the children she was gay. After Rachelle disclosed that
the children had already met her partner, the therapist recommended that Rachelle not allow any
further contact between the children and her partner until the GAL issued her recommendations.
Rachelle subsequently provided the oldest child with a book to answer any questions that
he might have about her sexuality and their faith. She also showed the two oldest children a
documentary about a transgendered child because they had asked questions about the meanings of
“LGBT”1 and “transgender.” I Verbatim Report of Proceedings (VRP at 161-62). While initially
supportive of the information Rachelle provided to the children, the therapist asked her to refrain
from having conversations about sexuality outside of therapy. Due to the children being sheltered,
naïve, and shut down, the GAL and therapist were concerned that Rachelle might not give the
children the time they needed to adjust and cope to the divorce and Rachelle’s sexual orientation.
However, the therapist admitted that the children were getting used to the idea that their mother
was gay, that the issue did not consume an inordinate amount of time during their therapy sessions,
and that she and the children primarily talked about other concerns the children had related to their
parents’ divorce.
Because she lacked financial resources, Rachelle’s partner would be supporting her
financially after the divorce. The GAL and the therapist were concerned that Rachelle lacked a
plan for independent financial and residential stability and that she intended to rely on her partner
1 LGBT is an acronym that stands for lesbian, gay, bisexual, and transgender.

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for support. The trial court shared the GAL’s and the therapist’s concern and acknowledged that
Rachelle’s search for full-time employment and/or enrollment in an educational program would
affect her ability to parent full-time.
I. THE TRIAL COURT’S RULINGS
A. Parenting Plan—Residential Placement, Decision-Making, and Restrictions
The trial court, in its written ruling, designated Charles as the primary residential parent
because he was “clearly the more stable parent in terms of the ability to provide for the needs of
these children, both financially as well as emotionally and in maintaining their religious
upbringing.” CP at 40. The trial court acknowledged that Rachelle “was a traditional stay-at-
home mother for the majority of [their] 21 year marriage” and performed the “bulk” of the
parenting functions, but found that after December 2011, Charles assumed many of the primary
parenting functions when Rachelle was away from the home. CP at 40. The trial court also
acknowledged that both parents have “a strong and stable relationship with the children,” that both
parents have a “good potential for future performance of parenting functions,” and that both
parents were active with the children’s schools and education. CP at 40.
With regard to the children and the changes in their family life, the trial court stated,
I believe it will be very challenging for them to reconcile their religious upbringing with
the changes occurring within their family over issues involving marriage and dissolution,
as well as homosexuality.
CP at 40-41.
The trial court adopted Charles’s proposed parenting plan, specifically rejecting Charles’s
proposed restrictions under RCW 26.09.191, finding “no section .191 limitations,” and adopted

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the GAL’s proposed restrictions on Rachelle’s residential time with the children.2 CP at 41. The
final parenting plan order incorporated the following restrictions and conditions on Rachelle’s
residential time with the children:
7. The children are to have no contact with [Rachelle’s partner] until such time as [the
therapist] feels that the children are ready. [The therapist] has the discretion to determine
when and/or how contact should occur.
8. Ms. Black is ordered to refrain from having further conversations with the children
regarding religion, homosexuality, or other alternative lifestyles concepts and further that
she is prohibited from exposing the children to literature or electronic media; taking them
to movies or events; providing them with symbolic clothing or jewelry; or otherwise
engaging in conduct that could reasonably be interpreted as being related to those topics
unless the discussion, conduct or activity is specifically authorized and approved by [the
therapist].
CP at 49. The trial court did not enter any specific findings of fact to support the restrictions. The
trial court also awarded Charles sole decision-making authority for religious upbringing,
education, and daycare because “both parents are opposed to mutual decision[-]making”3 and have
“a recent history of lack of communication, and have expressed very different goals concerning
the children’s education and religious education.” CP at 49, 75.
B. Property Division, Spousal Maintenance, and Child Support
Rachelle received one-half of the marriage’s community property, including one-half of
Charles’s $145,135 401(k). The trial court also ordered Charles to refinance the home at a value
2 In her report to the court, the GAL recommended the restrictions on Rachelle’s conduct when
exercising her residential time and that Charles should be designated as the primary residential
parent. The trial court’s restrictions in the final parenting plan in section 3.13 are identical to those
recommended in the GAL’s report.
3 Rachelle testified that Charles had “refused to mediate or negotiate or even speak to me”
regarding decisions on where the children would go to school. II VRP at 256.

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of $500,000, pay off the community debt, and divide the remaining proceeds equally with
Rachelle. If Charles could not refinance the home, the trial court ordered that Charles list it for
sale at a price between $520,000 and $550,000. The home’s mortgage balance was $147,165. The
court held that the refinance would “produce the same benefit” to Rachelle as a sale would. CP
at 42.
The trial court found that, although Rachelle needed maintenance, Charles could not afford
to pay and denied Rachelle’s request for an award of maintenance. For the duration of the
marriage, Rachelle was a stay-at-home parent and did not have an independent source of income,
and intended to rely on her partner for financial support.
Charles’s total monthly gross income was $8,159.4 The court intentionally excluded a
2013 bonus when it calculated Charles’s ability to pay Rachelle maintenance. Prior to the divorce,
the family lived paycheck to paycheck and sometimes bills would go unpaid because there was
not enough money to pay them.
Charles calculated his monthly household expenses to be $6,618.57 before any debt
payments. His calculation included only $975.11 per month in tuition expenses.5 The trial court
calculated his payroll deductions to be $1,877.98 before the payment of any health insurance costs,
and Charles was paying about $1,200.00 per month for health insurance. The court also ordered
4 The trial court used Rachelle’s method of calculating Charles’s gross income. His hourly pay of
$42.75, multiplied by 40 hours a week and 52 weeks per year. CP at 41. The total income includes
his monthly disability payments of $749.
5 Tuition Disclosure Declaration.

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Rachelle to pay the statutory minimum of $50.00 per child or $150.00 per month to Charles for
child support.
II. APPEAL AND STAY
Rachelle appeals the court’s final parenting plan designating Charles as the primary
residential parent, allocating sole decision-making authority to Charles for education, religious
upbringing, and daycare, and the section .191 restrictions imposed on her residential time; the
court’s order for child support; and the court’s denial of spousal maintenance. We stayed
enforcement of the parenting plan’s restrictions pending this decision.
ANALYSIS
Rachelle argues that the trial court erred when it imposed restrictions on her
communication and conduct with her children, designated Charles as the primary residential
parent, awarded Charles sole decision-making for education, daycare, and religious upbringing,
denied her request for spousal maintenance, and ordered her to pay Charles child support.
We agree with Rachelle’s claims regarding the imposed restrictions and sole decision-
making for religious upbringing and daycare, but disagree that the trial court erred when it
designated Charles as the primary residential parent, allocated sole decision-making for education,
denied her request for spousal maintenance, and ordered her to pay child support.
I. STANDARDS OF REVIEW
We review a trial court’s rulings on a permanent parenting plan, restrictions in residential
time, decision-making allocation, spousal maintenance, and child support for an abuse of

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discretion.6 In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012). An abuse of
discretion occurs when a decision is manifestly unreasonable or based on untenable grounds or
untenable reasons. Katare, 175 Wn. 2d at 35. When supported by substantial evidence, we accept
the trial court’s findings of fact as verities on appeal. Katare, 175 Wn.2d at 35. Substantial
evidence is that which is sufficient to persuade a fair-minded individual of the truth of the matter
asserted. Katare, 175 Wn.2d at 35.
II. RESTRICTIONS ON SPEECH AND CONDUCT
Rachelle argues that the trial court abused its discretion by restricting her conduct and
communication with the children related to her sexual orientation, including contact with her
partner, and religious views during her residential time. At oral argument, Charles conceded that
the imposed restrictions on Rachelle’s speech and conduct were improper and should be stricken
from the parenting plan. We agree that the imposed restrictions were improper.
A. RCW 26.09.191(3)
RCW 26.09.191 sets forth the factors which require or permit the court to place limitations
in a parenting plan upon a parent’s involvement with a child. RCW 26.09.191(3)(a-g); Katare,
175 Wn.2d at 36. Under RCW 26.09.191(3), if a parent’s involvement or conduct may have an
adverse effect on the child’s best interests, a trial court may preclude or limit any provisions of the
parenting plan, if one or more of the following factors exist:
(a) A parent's neglect or substantial nonperformance of parenting functions;
(b) A long-term emotional or physical impairment which interferes with the parent's
performance of parenting functions as defined in RCW 26.09.004;
6 Rachelle does not challenge the trial court’s division of assets and liabilities.

No. 46788-7-II
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(c) A long-term impairment resulting from drug, alcohol, or other substance abuse
that interferes with the performance of parenting functions;
(d) The absence or substantial impairment of emotional ties between the parent and
the child;
(e) The abusive use of conflict by the parent which creates the danger of serious
damage to the child's psychological development;
(f) A parent has withheld from the other parent access to the child for a protracted
period without good cause; or
(g) Such other factors or conduct as the court expressly finds adverse to the best
interests of the child.
RCW 26.09.191(3)(a-g). The court cannot draw any presumptions from the temporary parenting
plan’s provisions, and, when determining whether any RCW 26.09.191 limiting factors exist, the
court applies the civil rules of evidence, proof, and procedure. RCW 26.09.191(5-6).
Our Supreme Court has held that restrictions on a parent’s conduct “designed to artificially
ameliorate changes in a child’s life” are improper. In re Marriage of Wicklund, 84 Wn. App. 763,
771, 932 P.2d 652 (1996). RCW 26.09.191(3) bars the trial court from restricting parental conduct
unless the evidence shows that the conduct may have an adverse effect on the child’s best interests.
In re Marriage of Chandola, 180 Wn.2d 632, 642, 327 P.3d 644 (2014). Additionally, the trial
court may restrict parental conduct only if it “‘would endanger the child’s physical, mental, or
emotional health,’” Wicklund, 84 Wn. App. at 770 (internal quotation marks omitted) (quoting In
re Marriage of Cabalquinto II, 43 Wn. App. 518, 519, 718 P.2d 7 (1986)), and must be “‘more
than the normal hardships which predictably result from a dissolution of marriage.’” Katare,
175 Wn.2d at 36 (quoting In re Marriage of Littlefield, 133 Wn.2d 39, 55, 940 P.2d 1362 (1997)).
Sexual orientation, by itself, is not a sufficient reason to limit the conduct of a parent in the

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parenting plan. Wicklund, 84 Wn. App. at 770; In re Marriage of Cabalquinto, 100 Wn.2d 325,
329, 669 P.2d 886 (1983).
In Wicklund, the trial court restricted the children’s gay father from exhibiting or
participating in displays of affection with a partner in his children’s presence. Wicklund, 84 Wn.
App. at 769-70. During their marriage, the Wicklunds were active members of, and raised their
children in, the Jehovah’s Witnesses faith, which prohibits and condemns homosexuality. See
Wicklund, 84 Wn. App. at 766-77. The trial court found that, because of the children’s faith and
teachings, “under the circumstances . . . the active and outward practice of homosexuality . . . in
the presence of his children is not in the children’s best interest.” Wicklund, 84 Wn. App. at 769.
The Supreme Court reversed, finding that the trial court lacked any evidence that Wicklund was
acting inappropriately in the children’s presence, and that the only justifications for the restrictions
were to help the children adjust to the divorce. Wicklund, 84 Wn. App. at 771-72.
The trial court can restrict a parent’s conduct under RCW 26.09.191(3)(g) only after
“identifying a specific, and fairly severe, harm to the child” and finding that a restriction is in the
child’s best interest. Chandola, 180 Wn.2d at 647-48. In Chandola, the trial court found that,
“‘the father’s parenting history has had an adverse effect on the child’s best interests pursuant to
RCW 26-09-191(3)(g),’” and placed several restrictions on the father’s contact with his child.
Chandola, 180 Wn.2d at 640-41. Our Supreme Court held that the trial court abused its discretion
because there were no particular findings that the restrictions were necessary to prevent the child’s
physical, mental, or emotional harm. See Chandola, 180 Wn.2d at 648.
Here, the trial court specifically found that none of the factors in RCW 26.09.191(3)(a-g)
existed, stating, “[T]here are no section .191 limitations in this case.” CP at 41. Regardless, the

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trial court still imposed restrictions, prohibiting Rachelle from engaging her children in
conversations or activities “that could reasonably be interpreted” as relating to religion,
homosexuality, or “alternative lifestyles” without the express approval of the children’s therapist.
CP at 49. The trial court also prohibited Rachelle from allowing the children to have contact with
her partner, without the therapist’s approval. The trial court did not state an evidentiary basis that
the restricted conduct and communications would have any adverse effect on the children, other
than its belief that reconciling Rachelle’s sexuality with their conservative religious upbringing
would be “very challenging” for the children. CP at 40. But it is not the trial court’s duty to craft
a parenting plan, imposing restrictions, solely on the basis of making the transition easier for a
child. Wicklund, 84 Wn. App. at 770-71.
Additionally, there is not sufficient evidence in the record to justify the trial court’s
restrictions on Rachelle. The GAL was concerned about Rachelle’s ability to respect the children’s
development to the divorce and her sexuality, but the therapist testified at trial that the children
were adjusting to their parent’s divorce, and that their mother’s sexuality was not the center of
Rachelle’s conversations with them. Here, like in Chandola, the trial court failed to identify any
specific, severe harm to the children to justify its restrictions. Chandola, 180 Wn.2d at 647-48.
Thus, the trial court abused its discretion when it imposed restrictions upon Rachelle’s residential
time without any evidence supporting any RCW 26.09.191 restrictions or evidence that any
discussions or communications with the children on religion or homosexuality would endanger the
child’s physical, mental or emotional health, or was otherwise harmful to the children and would
not be in their best interests.

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B. Constitutional Claims
Rachelle argues that the restrictions burden her constitutional right to free speech and the
free exercise of religion under the First Amendment and article I, section 5 of our Washington
State Constitution. We agree.
Article I, section 5 of our constitution protects freedom of speech, prohibiting prior
restraints against protected speech but permitting prior restraints against unprotected speech. In
re Marriage of Suggs, 152 Wn.2d 74, 80, 93 P.3d 161 (2004). Prior restraints, official restrictions
imposed upon speech and expression in advance, carry a heavy presumption of unconstitutionality
and are per se unconstitutional under our state constitution, and any restrictions should be specific.
CONST. art. I, § 5; Suggs, 152 Wn.2d at 80-81, 83-84 (quoting Shelton v. Tucker, 364 U.S. 479,
488, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960)); See also Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546, 559, 95 S. Ct 1239, 43 L. Ed. 2d 448 (1975)). A court order restraining First
Amendment rights must further an important or substantial governmental interest and the
restriction must be no greater than necessary and essential to the furtherance of that interest. In re
Marriage of Olson, 69 Wn. App. 621, 629, 850 P.2d 527 (1993) (quoting U.S. v. O’Brien, 391
U.S. 367, 376-77, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968)). An order that generally forbids certain
kinds of speech lacks specificity, can function to chill all speech, and is an unconstitutional prior
restraint. See Suggs, 152 Wn.2d at 83-84 (stating that the language of the trial court’s order could
function to chill all of the appellant’s speech because it is unclear what can and cannot be said).
Our courts have upheld restrictions on certain types of unprotected speech when they have
served the best interests of the child. See Olson, 69 Wn. App. at 630 (holding that restrictions on
“disparaging remarks” were not unconstitutional because defamatory remarks are not protected by

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the First Amendment); Dickson v. Dickson, 12 Wn. App. 183, 187-90, 529 P.2d 476 (1974)
(holding that trial court’s restriction is proper when speech results in actual, tangible harm to
children). But while the welfare of children is the State’s paramount concern in dissolutions,
restraining speech merely based on content presumptively violates the First Amendment. Olson,
69 Wn. App. at 630 (stating that even in the context of family law, content-based speech
restrictions are presumptively unconstitutional).
Here, the trial court made no specific findings of any actual or perceived harm that the
children would suffer from the prohibited speech, other than that it would “be very challenging for
them to reconcile their religious upbringing” with the changes in their lives concerning the divorce
and Rachelle’s sexual orientation. CP at 40-41. The trial court did not restrict Rachelle’s speech
to prohibit her from making defamatory statements about Charles, or to prevent her from harming
the relationship between Charles and the children. See Olsen, 69 Wn. App at 630. The restrictions
in this case are blatantly content-based restrictions prohibiting Rachelle from any speech or
communication about religion, homosexuality, or “alternative lifestyles concepts” with her
children. CP at 49.
Our courts have protected a parent’s right to free exercise of religion in prior restraint cases.
See Dickson, 12 Wn. App. at 191 (stating that a constitutional injunction prohibiting former
husband “from representing Mrs. Dickson as his wife” did not preclude him from “contending that
she is his wife in the eyes of God”). The restrictions function to chill a broad range of Rachelle’s
speech around her children, and prevent her from being able to share and speak about her religion
with her children. While the best interests of the children is a trial court’s paramount concern
under RCW 26.09.187, here there is no indication that Rachelle’s prior speech related to her sexual

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orientation or her religious views caused harm to the children or disparaged Charles, or would
cause harm to the children if such speech or conduct occurred in the future. Therefore, we hold
that the restrictions are an unconstitutional burden on her freedom of speech and her free exercise
of religion.
III. RESIDENTIAL PLACEMENT
Rachelle argues that the trial court abused its discretion when it designated Charles as the
children’s primary residential parent because the trial court (1) misapplied RCW 26.09.187(3),
ignoring that she was the primary caregiver and stay-at-home mother, and the court’s findings of
fact are not supported by substantial evidence and (2) improperly considered her sexual orientation
and favored Charles’s religion. We disagree.
A. RCW 26.09.187(3)(a) Factors
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, and 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.” RCW 26.09.002. In fashioning a parenting plan, the trial court
determines the residential arrangement that will serve the best interests of the child. In re Marriage
of Wicklund, 84 Wn. App. at 772 (citing In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d
629 (1993)). While it has broad discretion, a trial court must consider the following factors:
(i) The relative strength, nature, and stability of the child’s relationship with each parent;
(ii) The agreements of the parties . . . ;
(iii) Each parent’s past and potential for future performance of parenting functions . . . ,
including whether a parent has taken greater responsibility for performing parenting
functions relating to the daily needs of the child;
(iv) The emotional needs and development level of the child;

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(v) The child’s relationship with siblings and with other significant adults, [and] the child’s
involvement . . . [in] school, or other significant activates;
(vi) The wishes of the parents and the wishes of [the] child . . . ; and
(vii) Each parent’s employment schedule . . . .
Factor (i) shall be given the greatest weight.
RCW 26.09.187(3)(a). The trial court may consider the religious beliefs of the child. RCW
26.09.184(3). There is no presumption in favor of placement with the primary caregiver. Kovacs,
121 Wn.2d at 800.
Evaluating factor (i), the trial court found that both Charles and Rachelle “have a strong
and stable relationship with the children.” CP at 40. This factor is given the most weight, and it
weighed equally in favor of both parents. The GAL testified that the children “clearly have a good
relationship” with both parents and that both parents have strong bonds with the children. I VRP
at 28, 77. Both parents were actively involved in their children’s schooling and education, and
both had a consistent presence in the children’s lives, Charles as an involved father and Rachelle
as a stay-at-home parent. Accordingly, the trial court properly concluded that this factor was equal
as to both Rachelle and Charles.
We agree with the trial court that the second factor (ii) did not apply because the parties
had no prior agreements.
Evaluating factor (iii), the trial court found that Rachelle and Charles both have “good
potential for future performance of parenting functions” and that Rachelle, as a stay-at-home
parent, had performed the bulk of the parenting functions prior to 2011. CP at 40. But it also
found that after December 2011 that Charles had taken on a large amount of the parenting
functions. Both Charles and Rachelle testified that Rachelle was gone from the home more often,

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and that Charles had taken on more responsibility for parenting after December 2011. Rachelle
argues that the court ignored her history as the children’s primary caregiver and parent. But under
Kovacs, there is no presumption in favor of the primary caregiver. 121 Wn.2d at 800. In addition,
the trial court found that Rachelle’s eventual educational program or employment after the divorce
would affect her ability to be a full-time parent to the children as she had been before. Thus, the
trial court considered Rachelle’s role as a stay-at-home mother and primary parent in the past when
making its residential placement decision.
Evaluating factors (iv) and (v), the trial court found that, because of their sheltered
upbringing and emotional development, Charles was best suited to provide for the children
financially and emotionally. The court acknowledged the children’s strong emotional bond with
both parents.
During trial, Rachelle, Charles, the GAL, and the therapist all testified to the fact that
Rachelle remained unemployed and resided in the family home after filing for divorce in May
2013. The therapist and the GAL both expressed concerns, which the court noted, that Rachelle
was relying on the support of her partner, and did not have a plan for stable residential or financial
independence. Further, Charles continued to maintain a strong relationship with Rachelle’s
parents, Bruce and Kathy Hall, who were a frequent presence and close to the children, and whose
relationship with Rachelle was strained. Rachelle wanted the children to leave their current
schools where they each had been since starting school, and enroll in public school. The therapist
and the GAL, emphasizing the children’s need for stability, expressed concern at Rachelle’s desire
to relocate the children to a new school, because their current schools provided the needed stability.

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Rachelle also argues that the trial court improperly considered Charles’s religion in its
residential placement decision. However, a trial court may consider the child’s religion when
fashioning a parenting plan. RCW 26.09.184(3). Here, the trial court’s acknowledgment and
consideration of the fact that the children attended religious based schools associated with the
family’s church is not improper.
We agree with the trial court that factor (vi), the wishes of the parents and child, if
sufficiently mature to express them, does not apply.
Evaluating factor (vii), the trial court found that the evidence related to this factor weighed
in favor of Charles. Charles is employed full-time at Hall Forest Products, which is owned by
Rachelle’s parents. While employed full-time, he has the schedule flexibility that allows him to
parent the children. Throughout the marriage and divorce proceedings, Rachelle was primarily a
stay-at-home parent, and not employed outside of the home. Rachelle had no articulable plans for
employment or education, other than to have her partner support her, and any employment or
education pursuit would interfere with her ability to remain a full-time stay-at-home parent.
While the trial court did not explicitly enumerate each of the RCW 26.09.187(3)(a) factors,
there was substantial evidence on the record to support its findings that (i) both Rachelle and
Charles had strong relationships and bonds with the children, (ii) they had no prior parenting
agreements, (iii) both parents have good potential for future parenting functions, but that Charles
had taken on many of the responsibilities since December 2011, (iv) Charles was the parent most
able to provide stability, and emotional and financial support to the children, (v) Charles was most
able to maintain the other strong relationships in the children’s lives, (vi) none of the children
stated their preference to the court, and (vii) Charles’s employment situation was best suited to

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provide him the flexibility to parent the children consistently. Thus, the trial court did not abuse
its discretion in applying the RCW 26.09.187(3)(a) factors in determining residential placement of
the children.
B. Judicial Bias
Rachelle and amici argue that the trial court improperly considered her sexual orientation
and demonstrated preference for Charles’s religion when it designated Charles as the primary
residential parent and limited and restricted Rachelle’s residential time with her children based on
her sexual orientation and religious views.7 There is no evidence in the record to support
Rachelle’s or the amici’s arguments that the trial court based its residential placement decision on
Rachelle’s sexual orientation or a preference for Charles’s religion.
To overcome the presumption that a trial court is fair and free of bias or prejudice, there
must be specific facts and evidence establishing the claimed bias. In re Davis, 152 Wn.2d 647,
692, 101 P.3d 1 (2004). Judicial rulings alone almost never constitute valid evidence of bias. In
re Davis, 152 Wn.2d at 692.
However, despite their arguments that the effect of the trial court’s ruling demonstrates and
is proof of bias based on Rachelle’s sexual orientation and religious beliefs, Rachelle and amici
give no specific evidence in support of their arguments that the trial court was biased, and we find
7 Br. of Appellant at 28-30, 33; Br. of Amicus Curiae American Civil Liberties Union at 9, 11,
15; Br. of Amici Curiae The Wash. State Psychological Assoc. (WSPA), at 5, 9; Br. of Amici
Curiae National Center for Lesbian Rights, at 9.
While the trial court designated Charles’ as the primary residential parent, there was no
ruling restricting or limiting Rachelle’s amount of residential time with her children for any
purpose.

No. 46788-7-II
19
nothing in the record or the trial court’s rulings to support their claims. Amici base their
generalized arguments on bald accusations of bias absent any evidence, and rely on a myriad of
studies and broad generalizations regarding gay and lesbian parents to support their arguments.
Because a judicial ruling alone is not valid evidence of bias, this argument fails.8
IV. DECISION-MAKING AUTHORITY
Next, Rachelle argues that the trial court abused its discretion when it allocated Charles’s
sole decision-making authority over the children’s religious upbringing, daycare, and education.
We agree with Rachelle’s claims regarding the allocation of sole decision-making for religious
upbringing and daycare, but disagree with her claim regarding allocation of sole decision-making
for education.
RCW 26.09.187(2) encourages the trial court to allocate mutual decision-making authority
unless the parents have come to another agreement, there is a limitation mandated by RCW
26.09.191, when both parents are opposed to mutual decision-making, or one parent is opposed to
mutual decision-making and their opposition is reasonable. See RCW 26.09.187(2)(b). When
allocating decision-making authority, the parents’ ability and desire to cooperate with one another
should be one of the court’s considerations. RCW 26.09.187(2)(c)(iii).
8 WSPA argues that the trial court’s ruling “references Rachelle’s sexual orientation more than a
dozen times” in its written decision. Br. of Amici Curiae WSPA, at 8. However, this is incorrect,
and while the trial court’s ruling does reference Rachelle’s sexual orientation, it is in the context
of providing the factual context of the Blacks’ relationship, and is not a basis of any of the trial
court’s decisions.

No. 46788-7-II
20
A. Religious Upbringing
Rachelle argues that the trial court abused its discretion when it awarded Charles sole
decision-making authority for the children’s religious upbringing. We agree.
In exercising its discretion, a trial court can consider the parties’ religious affiliations in
making a decision affecting parental rights. In re Marriage of Jensen-Branch, 78 Wn. App. 482,
490, 899 P.2d 803 (1995). Washington courts have created a separate standard where a trial court’s
order regarding decision-making authority restricts the parents’ rights to free exercise of religion.
Jensen-Branch, 78 Wn. App. at 490. There must be a substantial showing of actual or potential
harm to the children from exposure to the parents’ conflicting religious beliefs; this harmonizes
the children’s best interests with the parents’ constitutional rights to free religious exercise.
Jensen-Branch, 78 Wn. App. at 490-91. The burden on free exercise is only justified by a
compelling state interest and using the least restrictive alternative available; the “actual or potential
harm” requirement satisfies the “compelling interest” test. Jensen-Branch, 78 Wn. App. at 491.
Findings of actual or potential harm must be made with reference to specific evidence and the
specific needs of the children involved. Jensen-Branch, l78 Wn. App. at 491-92.
The constitutional right to free exercise does not allow sole decision-making, even if the
parents are incapable of joint decision-making, “if leaving each parent free to teach the children
about religion independently would not cause actual or potential harm to the children.” Jensen-
Branch, 78 Wn. App. at 492 (emphasis in original) (citing Munoz v. Munoz, 79 Wn.2d 810, 815,
489 P.2d 1133 (1971). In Jensen-Branch, the wife believed her husband’s church was a cult and
sought sole decision-making for religious upbringing. Jensen-Branch, 78 Wn. App. at 486-87.
The parents were incapable of joint decision-making, and the trial court allocated sole decision

No. 46788-7-II
21
making to the mother. Jensen-Branch, 78 Wn. App. at 488. The trial court recognized the
husband’s right to free exercise, and ordered that the husband could take the children to church
with him, but not for the purpose of indoctrination or teaching. Jensen-Branch, 78 Wn. App. at
488. On appeal, Division One of our Court of Appeals reversed and remanded back to the trial
court holding that absent a clear and affirmative showing of actual or potential harm the trial court
could not restrict the father’s freedom of exercise. Jensen-Branch, 78 Wn. App. at 493-94.
The trial court made the following findings regarding Rachelle’s and Charles’s religious
practices:
6. The family prior to December 10, 2011, had by choice attended Church for All Nations,
a conservative Christian Church.
7. Ms. Black’s parents are elders in the Church for All Nations.
8. Mr. Black still attends the Church for All Nations.
9. Ms. Black no longer attends the Church for All Nations.
CP at 73. Rachelle testified at trial that she still remained a Christian, that the only difference
between her religious beliefs and those of Charles was that she no longer viewed homosexuality
as a sin, and that the children would attend church with Charles during his residential time. While
Charles had requested sole decision-making authority for religious upbringing, Rachelle was open
to joint decision-making.
The trial court did not expressly state its reasons for allocating sole decision-making to
Charles in its written opinion,
[Charles] is clearly the more stable parent in terms of . . . maintaining their religious
upbringing. These children have been taught from the Bible since age 4. I believe
it will be very challenging for them to reconcile their religious upbringing with the
changes occurring within their family over issues involving marriage and
dissolution, as well as homosexuality.

No. 46788-7-II
22
CP at 40-41. Because there were no specific findings by the trial court or evidence presented that
joint decision-making would cause an actual or potential harm to the children, the trial court abused
its discretion by allocating sole decision-making to Charles regarding the children’s religion.9
B. Daycare
Rachelle argues that the trial court abused its discretion when it allocated sole decision-
making authority to Charles regarding the children’s daycare. Charles argues that there is no error
because the children are not in daycare, and that any error would be harmless. The trial court made
no findings under RCW 26.09.187(2) that would require sole decision-making to either Rachelle
or Charles. Thus, the trial court abused its discretion when it allocated sole decision-making
authority to Charles without making any findings under RCW 26.09.187(2) that sole decision-
making was necessary.
C. Education
Rachelle argues that the trial court abused its discretion when it allocated sole decision-
making to Charles regarding the children’s education. We disagree.
9 Rachelle also argues that the trial court’s parenting plan restrictions on speech and conduct
relating to religion—which we find are an abuse of discretion supra—in conjunction with
Charles’s sole decision-making authority, infringe on her constitutional right to free exercise. We
agree.
Because exercise of religion also includes performance or abstention from physical acts in
addition to belief and profession, the government must have a compelling government interest to
burden a person’s right to free exercise. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751,
2767, 2770, 189 L. Ed. 2d 675 (2014). While a parent’s right to select their children’s religious
experiences and opportunities is not absolute, the vast majority of cases restricting a parent’s right
to free exercise include cases of parents risking their children’s health and well-being. See e.g.,
Pfoltzer v. County of Fairfax, 775 F. Supp. 874, 885 (E.D. Va. 1991) (citing to cases where
necessary medical care, compulsory school attendance, and surrender of legal custody override a
parent’s religious interests). That is not the case here, and the trial court demonstrated no
compelling governmental interest to burden Rachelle’s free exercise of religion.

No. 46788-7-II
23
Rachelle acknowledged that she and Charles opposed mutual decision-making authority
for education, and they both requested sole decision-making authority regarding education in their
proposed parenting plans submitted to the court. Furthermore, the court found that Rachelle and
Charles had a “recent history of lack of communication, and have expressed very different goals
concerning the children’s education.” CP at 75. Rachelle wanted the children enrolled in public
school, while Charles wanted them to remain in the private school community were the children
had been enrolled for the entirety of their school years. Thus, under RCW 26.09.187(2), the trial
court did not abuse its discretion when it allocated sole educational decision-making authority to
Charles because Rachelle and Charles were against mutual decision-making on this issue and their
ability to cooperate was minimal because they drastically differed in their desires for the children’s
education.
V. SPOUSAL MAINTENANCE
Rachelle argues that the trial court abused its discretion when it failed to properly apply
the statutory factors under RCW 26.09.090 and denied her request for an award of spousal
maintenance based on Charles’s inability to pay. We disagree.
The trial court has discretion when awarding spousal maintenance, and the party
challenging a spousal maintenance award must demonstrate that the trial court manifestly abused
its discretion. In re Marriage of Marzetta, 129 Wn. App. 607, 624, 120 P.3d 75 (2005), abrogated
on other grounds by In re Marriage of McCausland, 159 Wn.2d 607, 152 P.3d 1013 (2007). While
it does have broad discretion, the trial court’s award must be just in light of the statutory factors
under RCW 26.09.090. In re Marriage of Luckey, 73 Wn. App. 201, 209, 868 P.2d 189 (1994).

No. 46788-7-II
24
When determining maintenance, some of the non-exclusive factors the trial court must
consider are (1) the financial resources of the party seeking maintenance, (2) the party’s ability to
independently meet his or her needs, (3) the time necessary for the party seeking maintenance to
find employment, (4) the duration of the marriage, (5) the age, physical and emotional condition,
and financial obligations of the spouse seeking maintenance, and (6) the ability of the spouse from
whom maintenance is sought to meet his or her needs and financial obligations. RCW 26.09.090;
Marzetta, 129 Wn. App. at 624. Consideration of the first factor, the parties’ financial resources,
includes apportioned community property. See RCW 26.09.090(1)(a). The trial court is governed
strongly by the need of one spouse and the ability of the other spouse to pay. In re Marriage of
Foley, 84 Wn. App. 839, 845-46, 930 P.2d 929 (1997).
A. RCW 26.09.090(1)(a-e)
Rachelle argues that trial court abused its discretion when it denied her request for
maintenance because the proper application of the statutory factors under RCW 26.09.090 weigh
in favor of maintenance. Charles agrees that Rachelle is a spouse that would typically need
maintenance, but the other factors under RCW 26.09.090 are irrelevant because he cannot afford
to pay maintenance. We agree with Charles.
The trial court awarded Rachelle one-half of the marriage’s community property, including
Charles’s $145,135 retirement savings. The trial also ordered Charles to refinance the home at
$500,000 and to pay Rachelle one-half of the proceeds after paying $192,500 in community debts,
including the home’s outstanding mortgage. Rachelle was entitled to approximately $154,000
from the proceeds of the home’s refinance.

No. 46788-7-II
25
Rachelle and Charles were married for more than 20 years, and she was a stay-at-home
parent without an independent source of income.10 While Rachelle had not enrolled or attempted
to enroll in an educational program and had not obtained employment outside of the home since
filing for dissolution, the trial court acknowledged that Rachelle “appears to be very intelligent
and should have no difficulty in finding employment” in the future. CP at 41; see also RCW
26.09.090(1)(b)(d). The trial court, taking these facts and considering the statutory factors under
RCW 26.09.090(1)(a-e), acknowledged that Rachelle needs spousal maintenance. However, an
award of spousal maintenance is not a matter of right, Luckey, 73 Wn. App at 209, and the court
also found that Charles did not have the ability to pay, as discussed below. See RCW
26.09.090(1)(f).
B. Ability to Pay, RCW 26.09.090(1)(f)
Rachelle argues that the trial court erred because it overstated Charles’s expenses and
underestimated his income and that no substantial evidence supports its finding that Charles cannot
pay maintenance. We disagree.
The trial court denied Rachelle’s request for maintenance, finding that she had a need but
that Charles was not able to pay. The court found that Charles’s gross monthly income was $8,159,
but that his costs exhausted his monthly income. At trial, Rachelle testified that the couple lived
10 Rachelle received one-half of the community property, including Charles’s 401(k), and one-half
of the proceeds from the sale or refinance of their home after costs and payment of the marriage’s
community debt. See RCW 26.09.090(1)(a). Rachelle does not challenge any of the property
division on appeal.

No. 46788-7-II
26
paycheck to paycheck and that there are a couple of bills that she has not been able to pay because
there have not been enough funds.11
The trial court calculated Charles’s payroll deductions to be $1,877.98 before the payment
of any health insurance costs, and Charles was paying about $1,200.00 per month for health
insurance. Even if we were to take Rachelle’s lower estimate of $1,700.00 in payroll deductions,
Charles would still have a monthly net-negative income.12 Therefore, the trial court did not abuse
its discretion when it denied Rachelle’s request for an award of maintenance because it determined
that Charles would not be able to pay maintenance.
VI. CHILD SUPPORT13
Next, Rachelle argues that because the trial court erred when it designated Charles as the
primary residential parent, its award of child support to Charles was in error also. However,
because the trial court did not err when it designated Charles as the primary residential parent,
there was no error in the award of child support.
CONCLUSION
We hold that the trial court abused its discretion when it restricted Rachelle’s conduct and
speech about religion and sexuality without any specific findings of harm to the children, and
11 Rachelle does not dispute Charles’s monthly household expense calculations of $6,618.57.
12 Based on the trial court’s gross income calculations, Charles’s stated monthly household
expenses, and the payroll deductions in the final order of child support, Charles’s net monthly
income would be -$1,537.55. Using Rachelle’s proposed payroll deduction, Charles’s net monthly
income would be -$1,358.57.
13 The trial court imputed a minimum wage income to Rachelle and ordered her to pay the statutory
minimum of $50 per child in child support. RCW 26.19.065(2)(a).

No. 46788-7-II
27
allocated Charles sole decision-making authority regarding religious upbringing and daycare.
Additionally, we hold that the trial court did not abuse its discretion when it (1) designated Charles
as the primary residential parent, (2) allocated sole decision-making authority for education to
Charles, (3) denied Rachelle spousal maintenance based on Charles’s inability to pay, and (4)
required Rachelle to pay child support.
Accordingly, we affirm the trial court’s (1) residential placement of the children with
Charles, (2) allocation of sole decision-making for education, (3) denial of spousal maintenance,
and (4) order requiring Rachelle to pay child support. But we reverse and strike the restrictions in
the parenting plan prohibiting Rachelle from discussing her sexual orientation and religion with
her children, and reverse the allocation of sole decision-making authority for the children’s
religious upbringing and daycare. We remand for further proceedings consistent with this opinion.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
WORSWICK, J.
MAXA, J.