5061-S

AN ACT Relating to restrictions on residential time for abusive parents; amending RCW 26.10.160; reenacting and amending RCW 26.09.191; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1. RCW 26.09.191 and 1989 c 375 s 11 and 1989 c 326 s 1 are each reenacted and amended to read as follows:

(1) The permanent parenting plan shall not require mutual decision-making or designation of a dispute resolution process other than court action if it is found that a parent has engaged in any of the following conduct: (a) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions; (b) physical, sexual, or a pattern of emotional abuse of a child; or (c) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm.

(2)(a) If there is a conviction in a criminal action, or if a court in an action under this chapter finds by clear and convincing evidence, that a parent requesting residential time has sexually abused a child living in the parent's household at any time during the parent's life or any other child within the previous ten years, then there is a rebuttable presumption that the court shall not allow residential time to a parent and shall enter a permanent restraining order prohibiting the parent from contacting the child directly or indirectly.

(b) The presumption may be rebutted only after a finding that:

(i) The offending parent has successfully engaged in court-approved treatment for sexual offenders or is engaged in and making progress in such treatment and the treatment provider believes such contact is appropriate and poses minimal risk to the child;

(ii) If the child was sexually abused by the parent requesting residential time and if the child is in or has been in therapy for victims of sexual abuse, the child's counselor believes such contact between the child and the offending parent is in the child's best interest; and

(iii) An adequate plan for supervision of such residential time in accordance with the provisions of this chapter has been approved by the court.

(c) If the court finds that the presumption has been rebutted, the court may allow a parent who has been found to have sexually abused a child to have residential time with the child supervised by a neutral and independent adult. Unless the nonoffending parent approves the supervisor, the court shall make a finding that the proposed supervisor is neutral, independent, willing to supervise, and capable of intervening between the child and the parent if necessary. The court shall enter findings of fact regarding the qualifications of the appointed supervisor and shall notify the supervisor of the court's requirements regarding supervision. The court may immediately remove the supervisor from the supervisory role upon evidence being presented that the supervisor failed to supervise the residential time adequately.

(d) The parent's residential time with the child shall be limited if it is found that the parent has engaged in any of the following conduct: (i) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions; (ii) physical, sexual, or a pattern of emotional abuse of a child; or (iii) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm.

((~~(b)~~)) (e) The limitations imposed by the court shall be reasonably calculated to protect the child from physical, sexual, or emotional abuse or harm that could result if the child has contact with the parent requesting residential time. If the court expressly finds limitation on the residential time with the child will not adequately protect the child from the harm or abuse that could result if the child has contact with the parent requesting residential time, the court shall restrain the parent requesting residential time from all contact with the child. If the parent requesting residential time is currently residing with another person who has a history of physical or sexual abuse of a child, whether that person is an adult or a juvenile, the court shall order that all residential time take place outside the presence of that person.

((~~(c)~~)) (f) Except as provided in (a), (b), and (c) of this subsection, if the court expressly finds that contact between the parent and the child will not cause physical, sexual, or emotional abuse or harm to the child and that the probability that the parent's harmful or abusive conduct will recur is so remote that it would not be in the child's best interests to apply the limitations of ((~~(a) and (b)~~)) (d) and (e) of this subsection, or if the court expressly finds the parent's conduct did not have an impact on the child, then the court need not apply the limitations of ((~~(a) and (b)~~)) (d) and (e) of this subsection. The weight given to the existence of a protection order issued under chapter 26.50 RCW as to domestic violence is within the discretion of the court.

(3) A parent's involvement or conduct may have an adverse effect on the child's best interests, and the court may preclude or limit any provisions of the parenting plan, if any 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;

(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.

(4) In entering a permanent parenting plan, the court shall not draw any presumptions from the provisions of the temporary parenting plan.

(5) In determining whether any of the conduct described in this section has occurred, the court shall apply the civil rules of evidence, proof, and procedure.

Sec. 2. RCW 26.10.160 and 1989 c 326 s 2 are each amended to read as follows:

(1) A parent not granted custody of the child is entitled to reasonable visitation rights except as provided in subsection (2) of this section.

(2)(a) If there is a conviction in a criminal action, or if a court in an action under this chapter finds by clear and convincing evidence, that a parent requesting visitation has sexually abused a child living in the parent's household at any time during the parent's life or any other child within the previous ten years, then there is a rebuttable presumption that the court shall not allow visitation to a parent and shall enter a permanent restraining order prohibiting the parent from contacting the child directly or indirectly.

(b) The presumption may be rebutted only after a finding that:

(ii) If the child was sexually abused by the parent requesting visitation and if the child is in or has been in therapy for victims of sexual abuse, the child's counselor believes such contact between the child and the offending parent is in the child's best interest; and

(iii) An adequate plan for supervision of such visitation in accordance with the provisions of this chapter has been approved by the court.

(c) If the court finds that the presumption has been rebutted, the court may allow a parent who has been found to have sexually abused a child to have visitation with the child supervised by a neutral and independent adult. Unless the nonoffending parent approves the supervisor, the court must make a finding that the proposed supervisor is neutral, independent, willing to supervise, and capable of intervening between the child and the parent if necessary. The court shall enter findings of fact regarding the qualifications of the appointed supervisor and shall notify the supervisor of the court's requirements regarding supervision. The court may immediately remove the supervisor from the supervisory role upon evidence being presented that the supervisor failed to supervise the residential time adequately.

(d) Visitation with the child shall be limited if it is found that the parent seeking visitation has engaged in any of the following conduct: (i) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions; (ii) physical, sexual, or a pattern of emotional abuse of a child; or (iii) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm.

((~~(b)~~)) (e) The limitations imposed by the court shall be reasonably calculated to protect the child from the physical, sexual, or emotional abuse or harm that could result if the child has contact with the parent requesting visitation. If the court expressly finds limitations on visitation with the child will not adequately protect the child from the harm or abuse that could result if the child has contact with the parent requesting visitation, the court shall restrain the person seeking visitation from all contact with the child. If the parent requesting visitation is currently residing with another person who has a history of physical or sexual abuse of a child, whether that person is an adult or a juvenile, the court shall order that all visitation take place outside the presence of that person.

(3) Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.

(4) The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child. Modification of a parent's visitation rights shall be subject to the requirements of subsection (2) of this section.

NEW SECTION. Sec. 3. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately.