In Re The Custody Of: L.z., A Minor Child (Majority)

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FILED COURT OF APPEALS UI lSfOt It 201511 R 31 IN THE COURT OF APPEALS OF THE STATE OF WASHIl ff AM 8: a8 SHINGTON Y DIVISION II No. 46466 -7 -II IN RE CUSTODY OF L.Z., a minor child. DANIEL SCHOCH, Respondent, and UNPUBLISHED OPINION LIYING ZHANG SCHOCH, Appellant, SUTTON, J. — Liying Zhang1 appeals the trial court' s order granting Daniel Schoch, her ex- husband, permanent nonparental custody of one of Zhang' s minor children. Zhang argues that the trial court erroneously applied a " best interests of the child" standard and thereby abused its discretion and erred when it changed the child' s last name. Zhang requests attorney fees and costs on appeal. Schoch cross -appeals arguing that the trial court erred when it denied his motion to amend his petition to add a de facto parentage claim. We hold that ( 1) the trial court abused its discretion when it erroneously applied a " best interests of the child" standard; ( 2) the trial court erred by changing the minor' s last name; and ( 3) the trial court abused its discretion in denying Schoch' s motion to add a de facto parentage claim. Accordingly, we vacate the trial court' s nonparental custody decree and residential schedule and reverse and remand for proceedings consistent with this opinion. On remand, Schoch may pursue 1 We refer to Liying Zhang Schoch as Liying Zhang, we intend no disrespect. No. 46466 -7 -II a de facto parentage claim. We award Zhang reasonable attorney fees and costs on appeal in the amount of $10, 000 based on her need and Schoch' s ability to pay. FACTS Liying Zhang was Lh. living and China. in China, Lx.?, both met and Daniel William Schoch through the internet in October 2008. Schoch was living in Grays Harbor Zhang County. Zhang had two daughters, whom she adopted as infants after finding them abandoned near her home in At the time of trial, Lh. was approximately 14 years old and Lx. was approximately 15 years old. Zhang and Schoch met in person several times before they were married in November 2009. That same November, Zhang left her job with a Chinese pharmaceutical company and moved to Grays Harbor County with her two daughters to be with Schoch. Once she relocated to the United States, Zhang no longer worked outside the home and she and her daughters lived in Schoch' s home. After they married, Schoch asked Zhang to care for his ailing father and several of Schoch' s grandchildren. This arrangement caused marital stress because Zhang wanted to work outside the home. Schoch insisted that Zhang care for his family, and he threatened not to renew Zhang' s green card. Zhang complied, but felt she was no longer treated as Schoch' s equal. Tension also existed in the home because of Zhang' s desire to have her daughters speak to her in Chinese. During one incident, Schoch became angry when Zhang and Lx. did not eat 2 It is appropriate to provide some confidentiality in this case. Accordingly, it is hereby ordered that initials will be used in the case caption and in the body of the opinion to identify the parties and other juveniles involved. 2 No. 46466 -7 -II American food, but ate Chinese food instead. Schoch complained the house smelled, swept the meal off the table onto the floor, and fed the remaining food to the dog. When Zhang tried to clean the dishes, Schoch threw a pot or bowl at Zhang that struck her on the arm and caused a welt. According to Schoch, Zhang did not like Lh.' s rapid adjustment to American culture. When Lh. first arrived in the United States when she was 10 years old, she spoke no English, but by the time of trial she could speak better English than her mother. Zhang would become upset when Lh. did not want to speak to her in Chinese. Schoch refused to allow Zhang to speak Chinese to either daughter in his presence. At one time, during an argument, Zhang got down on her knees, crying and begging her daughters to speak Chinese to her. On November 6, 2012 Zhang filed a petition for dissolution. Zhang intended to relocate to California with her daughters; a friend had offered to let them live with her in order to help Zhang find a job. Zhang bought a round trip airplane ticket for herself and Lh. to travel to China to visit Zhang' s ailing sister -in -aw; the older daughter, Lx. had just traveled to China the previous year. l Zhang picked up Lh. from school to take her to the airport, but Lh. physically resisted going. Schoch filed a nonparental custody petition that same day and obtained an ex parte restraining order preventing Zhang from removing Lh. from Washington. In his petition for nonparental custody, Schoch alleged that Zhang' s parental visitation should be limited due to ( 1) p] hysical, as 3 sexual or a pattern of emotional abuse "; ( defined in RCW 26. 50. 010( 1) "; 3 and ( 3) "[ RCW 26. 50. 010( 1) defines "[ d] omestic 2) "[ a] history of acts of domestic violence t] he child has expressed great fear of the mother and violence" as: "( a) Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members." 3 No. 46466 -7 -I1 has been abused by the Clerk' s Papers ( CP) at 3, 4. Zhang denied these allegations. The mother." trial court then entered an agreed temporary order, placing Lh. with her mother but allowing Schoch The trial court also appointed a guardian ad litem ( GAL) to investigate and visitation. report to the trial court regarding custody and visitation, and ordered the GAL to hold the children' s passports. The GAL investigated the nature of Schoch' s and Zhang' s relationship with both girls, and reported her findings and recommendations to the trial court. Although Schoch did not adopt either daughter, he actively participated in their schooling and activities, and both girls referred to Schoch as father their during the parties' four year marriage. Lx. showed little interest in rural farm life and maintained a closer bond with her mother. The younger daughter, Lh. became very involved with the bond [ of farm with GAL at animals and embraced Schoch] 3). Lh. similar her to that of expressed a " new life with Schoch. Lh. " developed CP at 43C ( Sealed Report father -daughter relationship." a strong desire to remain with [ a strong parentlike Schoch]" and continue her life in Grays Harbor.4 CP at 43C ( Sealed Report of GAL at 3). The GAL reported that Lh. had repeatedly contacted her complaining about Zhang, but the GAL was not able to confirm any allegations expressed " concern" " over and over again" July 4 30, 2013) Schoch at 91. of abuse or about her " fear The GAL testified that Lh. threats. of being sent back to China." VRP Schoch alleged that Zhang kicked Lh. and slapped her in the face with a wet acknowledged that if Zhang remained in Grays Harbor, " certainly that could be a possibility that they [ could] have some sort of shared custody or [ Schoch] has lots of visitation, but if [ Zhang] leaves the area, custody should rever[ t] 02. 4 to [ Schoch]." VRP ( July 30, 2013) at 101- No. 46466 -7 -II towel numerous Zhang denied times. these allegations. According to the GAL' s report, neither Child Protective Services nor law enforcement substantiated these allegations after investigating them. After completing her investigation, the GAL self harm over - Lh.' s refusal to speak reported allegations to her in Chinese; ( 2) that: ( 1) Zhang inflicted Zhang made repeated threats to send Lh. back to China; and ( 3) Zhang attempted to fly to China and take Lh. with her against Lh.' s will, but Schoch stopped Zhang from doing so by obtaining an ex parte temporary restraining order. The GAL described Lh. as a " typical pre- teen" who " knows what she wants, and she is going to get her indicated a great concern" own way." VRP ( July 30, 2013) lack of affection to stay here, Mr. Schoch, or for them. VRP ( July 30, 2013) stating: "[ T] his little mom for [ Zhang] even girl [ Lh.] and her at 90. But the GAL her at older sister," 91. also testified that Lh. " never but instead she had " expressed The GAL summarized Lh.' s concerns by is very torn. She very much wants to stay here, and she wants her sister if they [ Zhang to stay here, but and Lx.] don' t." she [ Lh.] wants to maintain a relationship with VRP (July 30, 2013) at 92. The GAL described Lh.' s relationship with her mother as " challenging" in part because Zhang and her older daughter Lx. " cling very tightly to their cultural roots. [ Lh.] has pushed some of that away." VRP (July 30, 2013) at 91. The GAL testified that it School District and would be in Lh.' s " best interests" to " remain ... in the Montesano keep ... on with the activities she has been involved in the last three [ years]." VRP ( July 30, 2013) at 89. The GAL declined to recommend who should be awarded custody of 5 No. 46466 -7 -II Lh., but said the decision should be based on " facilitat[ ing]" the " living circumstances" that the GAL recommended were in Lh.' s best interests. VRP ( July 30, 2013) at 89. Several months before trial, Schoch moved to amend his pleading to add a de facto to Lh. parentage claim as The trial court denied the motion without explanation. On August 9, 2013, after a bench trial, the trial court granted Schoch' s petition and awarded him permanent nonparental custody of Lh. and entered a nonparental custody decree, residential schedule, and findings of fact and conclusions of law dissolving the marriage. 5 In awarding Schoch permanent nonparental custody, the trial court found: T] hat the child is flourishing physically, academically, athletically and extracurricularly living in Grays Harbor County and attending Montesano Schools. She is a 4.0 student, is in band, plays traveling team softball, is a member of 4 -H, is raising a market steer for County Fair, loves animals, and thoroughly enjoys and embraces the farm and known Daniel Schoch American lifestyle. her " as She has made close friends. She has Daddy" and has had no other father -daughter relationship. The child has expressed concern about the uncertainty of living with the There have been numerous incidents of inappropriate verbal, mother. psychological and physical punishment of the child by the mother and threats of being sent away from the Country for transgressions. The child' s residence with the mother would be an environment detrimental to her continued growth and welfare. CP at 73 ( Finding of Fact (FF) 2. 6). The trial between Schoch court and further found that ( 1) Lh., and that it was Zhang had encouraged a. parent -child relationship in Lh.' s " best interest[ s] " 6 to be placed in Schoch' s 5 The trial court found that Zhang stipulated to adequate cause to hear the case under by agreeing that the petitions for nonparental custody and dissolution Zhang argued that she never stipulated to adequate cause. 6 CP at 75 ( Conclusion of Law (CL) 3. 2). 6 could be heard together. On appeal, No. 46466 -7 -II Zhang " inappropriate[ ly] custody; ( 2) to China; ( 4) punish[ ed]" 7 3) Zhang "threat[ ened] " 8 to send Lh. back Lh.; ( Zhang attempted to travel with Lh. to China without the trial court' s or Schoch' s approval; and ( 5) the trial had " court significant questions regarding [ Zhang' s] credibility after hearing [ Zhang' s] testimony, witnessing her demeanor, and hearing the testimony and reports of others." CP at 74 ( FF 2. 13). Upon entering its custody order, the trial court also changed Lh.' s last name to Schoch. Zhang appeals. Schoch cross -appeals the trial court' s denial of his motion to amend to add a de facto parentage claim. ANALYSIS Zhang argues that the trial court applied the wrong " best interest[ s] " 9 of the child standard and thereby abused its discretion by failing to apply the correct "` actual detriment "' standard. Br. of Appellant at 22 (quoting In re Custody ofE.A. T. W., 168 Wn.2d 335, 338, 227 P. 3d 1284 ( 2010)). We The trial agree. court did not apply the detriment" correct " actual standard to its custody determination. We review custody decisions for abuse of Wn.2d 632, 642, 327 P. 3d 644 ( 2014). " A is outside is based the court' s range of acceptable choices, given on untenable grounds discretion. the decision is manifestly facts if the factual findings 7 CP at 73 ( FF 2. 6). 8 CP at 73 ( FF 2. 6). 9 VRP ( Aug. 9, 2013) at 143. 7 In re Marriage of Chandola, 180 and the unreasonable" applicable are unsupported by legal the if ( " 1) standard "; ( 2) record "; it it and ( 3) it No. 46466 -7 -II is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard." West v. Dep' t ofLicensing, 182 Wn. App. 500, 516 -17, 331 P. 3d 72, review denied, 339 P. 3d 634 ( 2014). We review a trial court' s statutory interpretation de novo. Grieco v. Wilson, 144 Wn. App. 865, 873, 184 P. 3d 668 ( 2008), aff'd, E.A. T. W., 168 Wn.2d 335. unique opportunity to personally observe the parties," Because of the trial court' s we will disturb a custody designation only when both the trial court' s written and oral opinions demonstrate a failure to consider statutory requirements. not review C.B., In re the trial Marriage of Murray, 28 Wn. court' s App. credibility determinations 187, 189, 622 P. 2d 1288 ( 1981). or reweigh the evidence. We do In re Welfare of 134 Wn. App. 942, 953, 143 P. 3d 846 ( 2006). I. " ACTUAL DETRIMENT" STANDARD IN A NONPARENTAL CUSTODY ACTION Chapter 26. 10 RCW allows third to parties petition for child custody. " Such an award confers on the nonparental custodian the legal power to ` determine the child' s upbringing,' to the exclusion of the natural parent." In re Custody of C.C.M., 149 Wn. App. 184, 204, 202 P. 3d 971 2009) ( quoting RCW 26. 10. 170). Parents, however, have a protected liberty interest in the custody of their children. In re Custody ofB.M.H., 179 Wn.2d 224, 235, 315 P. 3d 470 ( 2013). In a custody dispute between parents and nonparents . . . the analysis must accommodate the natural parents' constitutionally protected priority right to the custody of their children. The general constitutional rule of " respect for family integrity" demands a substantive showing in a nonparental custody action of far more than a child' s best interests. C. C.M., 149 Wn. App. at 204 -05 ( internal Wn.2d 568, 580, 200 P. 3d 689 ( 2009) ( citations omitted) ( quoting J.M. Johnson, J., concurring)). 8 In re Custody of A. C., 165 No. 46466 -7 -II Therefore, a nonparent can obtain custody of a child only if (1) a parent is unfit, or ( 2) with a parent would result custody B.M. H., 179 Wn.2d at W., 168 Wn.2d 235 ( quoting E.A. T.. 157 Wn.2d 126, 142 -43, substantial, and " in "' actual detriment to the child' s growth and development.' 136 P. 3d 117 ( 2006). only [ under] ` extraordinary at 338); see also In re Custody ofShields, The showing required by the nonparent is circumstances ' does there exist a compelling state interest that justifies interference with the integrity of the family and with parental rights. Shields, 157 Wn.2d at 145 ( quoting In re Marriage ofAllen, 28 Wn. App. 637, 649, 626 P.2d 16 ( 1981)); see also B.M. H., 179 Wn.2d evidence. at 236. The nonparent' s burden of proof is clear and convincing C.C.M., 149 Wn. App. at 205. A parent is unfit if he or she cannot meet a child' s basic needs, and in such cases, the State is justified in removing the child from the home and in certain cases, permanently terminating parental rights." H., 179 Wn.2d B.M. at 236; see also Shields, 157 Wn.2d at 142 -43. But Schoch did not argue that Zhang was an unfit parent. The issue at trial was whether Zhang' s custody of Lh. would cause actual detriment to Lh. Significantly, the " actual detriment" determination does not focus on the " best interests of the child." Facts that merely support a finding that nonparental custody is in the child' s " best interests" are insufficient to award custody to the nonparent. B.M.H., 179 Wn.2d at 237 ( quoting In re 150. " Custody ofS.C.D. - ., 170 Wn.2d 513, 516 -17, 243 P. 3d 918 ( 2010)); Shields, 157 Wn.2d at L A nonparent' s capacity to provide a superior home environment to that which a parent can offer is not enough to outweigh the deference that is constitutionally owed to a natural, fit parent." C. C.M., 149 Wn. App. at 204 ( citing Shields, 157 Wn.2d at 144). Similarly, a nonparent cannot obtain custody of a child merely because the trial court finds that the nonparent would be a better 9 No. 46466 -7 -II parent. will E.A. T. W., 16.8 Wn.2d be deprived at 346 -47. of " wonderful And " actual detriment" does not include that the child opportunities" as a member of the nonparent' s family. In re Custody ofAnderson, 77 Wn. App. 261, 266, 890 P. 2d 525 ( 1995). II. THE TRIAL COURT' S CUSTODY DECISION Although the trial written finding that "[ court purported to apply the " actual detriment" standard, entering a Lh.' s] residence with [ Zhang] would be an environment detrimental to her continued growth and welfare, "10 its oral ruling clearly shows that the trial court based its decision solely on a consideration of what was in Lh.' s " best interest[ s] i11. Therefore, we hold that the trial court erred in applying the wrong legal analysis in its custody decision. A. Consideration of Trial Court' s Oral Decision Despite the trial court' s finding that living with Zhang would be " detrimental "12 to Lh., the trial court' s oral rulings clearly show that it was applying a " best interests of the child" standard and not an " actual detriment" standard. Therefore, we must reverse the trial court' s custody ruling. Ordinarily, we will not look behind a trial court' s oral rulings to contradict the trial court' s written ruling. In re Marriage of Getz, 57 Wn. App. 602, 605 n. 4, 789 P. 2d 331 ( 1990). But we may consider a .trial court' s oral decision so long as it is not inconsistent with the trial court' s written findings and conclusions. State v. Kull, 155 Wn.2d 80, 88, 118 P. 3d 307 ( 2005); see Getz, 57 Wn. App. at 605 n.4 (we may resolve an ambiguity in a trial court' s written decision by looking 1° CP at 73 ( FF 2.6). 11 VRP ( Aug. 9, 2013) at 143. 12 CP at 73 ( FF 2. 6). 10 No. 46466 -7 -II to its of oral fact, ruling). And oral findings that the trial court expressly incorporates it into its findings conclusions of law, and judgment are binding. State v. Truong, 168 Wn. App. 529, 539 n. 6, 277 P. 3d 74, review denied, 175 Wn.2d 1020 ( 2012). Here, the trial court' s written findings of fact and conclusions of law do not state what standard it applied in its custody determination. detriment, but the trial to be placed court also entered a in Schoch' s custody. CP at finding The trial court entered a finding regarding that "[ 74 ( FF 2. 7). i]t is in the best interest[ s] of the child" Therefore, because the written findings of fact and conclusions of law were ambiguous, we will consider the trial court' s oral rulings to ascertain what standard it was applying. In its oral ruling, the trial court unequivocally applied the " best interests" standard: Now, the statute says I do what' s in the best interests of the child. I do believe at this time for the following reasons, education, age, personal life, i.e., her athletic involvement, school involvement and other matters, all involving that, her issues with 4H, and other issue of that, that I do believe it' s in the best interests ofthe child that the custody at this time be awarded to Mr. Schoch. VRP ( July 30, 2013) at 108 ( emphasis " correct standard —actual added). The trial court did not apply or even reference the detriment" to the child. At the presentation hearing on August 9, 2013, Zhang objected to Schoch' s proposed order that included the finding regarding " detriment" because that finding had not been part of the trial court' s oral ruling. VRP (Aug. 9, 2013) at 136. The trial court explained its oral ruling: Now, when you come to the terminology of detrimental and best interests, what you' re doing is evaluating? You are evaluating two people and you isn' t that come to the conclusion that this one, quote, is in the best interests of the child. If you remove that child from the environment that' s in the best interests of the child isn' t that detrimental? VRP (Aug. 9, 2013) at 143 ( emphasis added). 11 No. 46466 -7 -II In addressing whether Zhang could properly provide for Lh., the trial court stated: I don' t think — we' re not sitting here saying mom is running some sweat shop or dump of a house. We' re not saying that. We 're saying that it' s in the best interests ofthe child that the finding of the Court, where mom' s over here with a garbage this Court— kid is going to live and go to and by the way, she' s only going school — to do so for about three or four years here and then she' s off to college and guess who' s probably going to pay for the college, the guy she' s living with. VRP (Aug. 9, 2013) at 143 ( emphasis added). The trial court then stated: Now, let' don' t s get lost in semantics about their finding detrimental. I' m not sitting here trying to denigrate [ Zhang], Mr. Campbell. The law says you' ve got to do one to get to the other and that' s all I am telling you. If this kid was down there in California with mom I don' t have any problem that the kid would be fed and clothed and sheltered or whatever. But what have you done? You have then taken the kidfrom the environment that a Courtfound was in the best interest ofthe child, that' s where the child should continue for the next three or four years of her life. And then you' ve got all this other stuff, her education, her friends, her peers ...." I' m the one who had to wrestle with this and make the decision and it wasn' t pleasant.... But you know what, you look at the statute for this purpose for that part this proceeding, it' s the best interests of the child, period. VRP (Aug. 9, 2013) at 143 -45 ( emphasis added). The trial court' s oral comments leave no doubt that it awarded custody based on Lh.' s " best interests." court In addition, the trial court erroneously stated that the applicable statute required the to apply a " best interests" standard. VRP ( July 30, 2013) at 108; see also VRP ( Aug. 9, 2013) at. 145. The trial court abused its discretion when it applied this standard because the proper standard is whether remaining with the parent would cause " actual detriment to the child' s growth and development." B.M.H., 179 Wn.2d at 235 ( quoting E.A. T. W., 168 Wn.2d at 338). 12 No. 46466 -7 -II We hold that the trial court erred in applying the wrong legal standard in its custody decision. Therefore, we reverse the trial court' s award of custody to Schoch. B. The Trial Court Changed Lh.' s Last Name In the custody decree, the trial court changed Lh.' s last name to Schoch. Zhang argues that this relief was neither requested nor authorized under RCW 4.24. 130. 13 In a custody action, the party desiring a change of name of his or her minor child must set forth the reasons for the change under RCW 4. 24. 130. Daves v. Nastos, 105 Wn.2d 24, 29, 711 P. 2d 314 ( 1985). But in order to change the child' s name, the trial court must enter a finding that the name change is in the child' s best interests. Daves, 105 Wn.2d at 29 -30. The trial court failed to enter any such finding in this case. Therefore, we reverse the trial court' s order changing Lh.' s last name to Schoch. 13 Any person desiring a change of his or her name or that of his or her child or ward, may apply therefor to the district court of the judicial district in which he or she resides, by petition setting forth the reasons for such change; thereupon such court in its discretion may order a change of the name and thenceforth the new name shall be in place of the former." RCW 4. 24. 130( 1) states: " 13 No. 46466 -7 -II III. DE FACTO PARENTAGE CLAIM Schoch argues that the trial court erred in denying his motion to amend to add a de facto parentage claim. We agree. Motions to Owners Ass 'n v. amend " should be freely granted when justice so requires." Chadwick Farms FHC LLC, 166 Wn.2d 178, 202, 207 P. 3d 1251 ( 2009); CR 15( a). We will not overturn a trial court' s refusal to grant a motion to amend pleadings except for manifest abuse of Greenhalgh discretion. reverse a trial court' s v. Dep' t decision for of Corr., 170 Wn. abuse of on untenable grounds, or exercised of law." for App. 137, 143, 282 P. 3d 1175 ( 2012). discretion if it "` is untenable reasons,' We manifestly unreasonable, exercised with the last category including errors Humphrey Indus., Ltd. v. Clay Street Assocs., LLC, 170 Wn.2d 495, 506, 242 P. 3d 846 2010) ( quoting Noble v. Safe Harbor Family Pres. Trust, 167 Wn.2d 11, 17, 216 P. 3d 1007 2009)). The trial court did not state a reason for denying the motion to amend. At the time of the motion, however, the case law could have been interpreted as precluding a former stepparent from becoming 2010). a de facto parent. See In re Parentage of M. F., 168 Wn.2d 528, 532, 228 P. 3d 1270 Because there are no other apparent reasons to deny the motion, we assume that the trial court determined that the amendment would be futile under existing law. Our Supreme Court recently from being de facto parents." clarified that M. F. "did H., 179 Wn.2d B. M. at not preclude all stepparents as a class F., 168 Wn.2d 528). 243 ( citing M. At the time that the trial court denied Schoch' s motion to amend, B.M. had not yet been decided. H. Nevertheless, we hold that the trial court abused its discretion in denying the motion based on the 14 No. 46466 -7 -II now rejected conclusion that he did not qualify for de facto parentage as a former stepparent. We hold that on remand, Schoch may pursue a de facto parentage claim based on B.M.H. IV. ATTORNEY FEES AND COSTS Finally, Zhang requests reasonable attorney fees on appeal based on her need and Schoch' s ability to pay. RCW 26. 10. 080. This statute provides, in part: " Upon any appeal, the appellate court may, in its discretion, order a party to pay for the cost to the other party of maintaining the appeal and attorney' the authority, " after s fees in addition to statutory considering the financial costs." Therefore, we have RCW 26. 10. 080. resources of all parties," to award attorney fees to Zhang. RCW 26. 10. 080. Zhang' s only source of income was spousal maintenance, which has ended. Schoch is self owns employed, expenses, two businesses, Zhang has a financial and need has available and assets. Given their income disparity and Schoch has the' ability to pay. We award Zhang reasonable attorney fees on appeal in the amount of $10, 000. CONCLUSION We hold that: ( interests of the 1) The trial court abused its discretion when it erroneously applied a " best child" standard, equating it with the " detriment to the child" standard; ( 2) the trial court erred by changing the child' s last name; and (3) the trial court abused its discretion in denying Schoch' s motion to add a de facto parentage. Accordingly, we vacate the trial court' s non parental custody decree and residential schedule, and reverse and remand for a new trial. We also grant Zhang' s request that the matter be heard by a different superior court judge. On remand, Schoch may pursue a de facto parentage claim. We award Zhang reasonable attorney fees and costs on 15 No. 46466 -7 -II appeal in the amount of $10, 000 based on her need and Schoch' s ability to pay. 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. We concur: 16

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