Strike everything after the enacting clause and insert the following:
NEW SECTION. Sec. 1. The legislature finds that:
(1) Approximately 15,000,000 children in the United States are exposed each year to domestic violence or child abuse, according to the national survey by the office of juvenile justice and delinquency prevention within the United States department of justice and the centers for disease control and prevention.
(2) Most child abuse is perpetrated in the family and by a parent. Intimate partner violence and child abuse overlap in the same families at rates of 30 to 60 percent. A child's risk of abuse increases after a perpetrator of intimate partner violence separates from a domestic partner, even when the perpetrator had not previously directly abused the child. Children who have witnessed intimate partner violence are approximately four times more likely to experience direct child maltreatment than children who have not witnessed intimate partner violence.
(3) More than 75 percent of child sexual abuse is perpetrated by a family member or a person known to the child. The United States department of justice data shows that family members are almost half of the perpetrators of child sex assault victims under the age of six.
(4) Research suggests a child's exposure to a batterer is among the strongest indicators of risk of incest victimization. One study found that female children whose fathers were batterers of the mother were six-and-a-half times more likely to experience father-daughter incest than female children who do not have an abusive father.
(5) Child abuse is a major public health issue in the United States. Total lifetime financial costs associated with just one year of confirmed cases of child maltreatment, including child physical abuse, sexual abuse, psychological abuse, and neglect, results in $124,000,000,000 in annual costs to the United States economy, or approximately one percent of the gross domestic product.
(6) Empirical research indicates that allegations of child physical and sexual abuse are regularly discounted by courts across the country when raised in child custody cases. While independent research indicates that child sexual abuse allegations are credible 50 to 70 percent of the time, fewer than one-fourth of claims that a father has committed child physical or sexual abuse are believed. Where the allegedly abusive parent claimed the mother was alienating the child, only one in 51 claims of sexual molestation by a father are believed.
(7) Empirical research shows that alleged or known abusive parents are often granted custody or unprotected parenting time by courts across the country. Approximately one-third of parents alleged to have committed child abuse took primary custody from the protective parent reporting the abuse, placing children at ongoing risk.
(8) The United States child murder data from researchers shows that, since 2008, 21 children have been murdered in Washington and nearly 800 children have been murdered in the United States by a divorcing or separating parent, with more than 100 of these murders known to have occurred after court involvement.
(9) Scientifically unsound theories that treat mothers' abuse allegations as likely false attempts to undermine the father are frequently applied in family court to minimize or deny parents' and children's reports of abuse. Many experts who testify against abuse allegations lack expertise in the relevant type of alleged abuse, relying instead on unsound and unproven theories.
(10) Judges presiding over custody cases with allegations of child abuse, child sexual abuse, and domestic violence are rarely required to receive training on these subjects, nor has Washington established extensive standards for such trainings.
TRAINING AND EDUCATION PROGRAM
NEW SECTION. Sec. 2. (1) To comply with the federal keeping children safe from family violence act, Title 34 U.S.C. Sec. 10446, family court judges, commissioners, guardians ad litem, parenting evaluators, parent coordinators, investigators, and any other relevant court-appointed professionals involved in proceedings concerning the determination or modification of parenting plans, child custody or visitation, child support, or allocation of parenting functions must complete, with respect to the training program described in this section:
(a) Not less than 20 hours of initial training; and
(b) Not less than 15 hours of ongoing training every five years.
(2) The training program required in subsection (1) of this section is an ongoing training and education program that focuses solely on domestic and sexual violence and child abuse, including:
(a) Child sexual abuse;
(b) Physical abuse;
(c) Emotional abuse;
(d) Coercive control;
(e) Implicit and explicit bias, including biases relating to parents with disabilities;
(f) Trauma;
(g) Long-term and short-term impacts of domestic violence and child abuse on children;
(h) Victim and perpetrator behavioral patterns and relationship dynamics;
(i) The detriment to children of residing with a person who perpetrates domestic violence; and
(j) That domestic violence can occur without a party seeking or obtaining a restraining or protection order, without a substantiated child protective services finding, and without other documented evidence of abuse.
(3) The training and education program must be provided by a professional with substantial experience in assisting survivors of domestic violence or child abuse, including a victim service provider as defined in Title 34 U.S.C. Sec. 12291 and, if possible, a survivor of domestic violence or child physical or sexual abuse.
(4) The training and education program:
(a) Must rely on evidence-based research by recognized experts in the types of abuse described in subsection (2) of this section; and
(c) May not include theories, concepts, or belief systems unsupported by the research described in (a) of this subsection.
(5) The training and education must be designed to improve the ability of courts to:
(a) Recognize and respond to child physical abuse, child sexual abuse, domestic violence, and trauma in all family victims, particularly children; and
(b) Make appropriate child custody decisions that prioritize child safety and well-being and are culturally sensitive and appropriate for diverse communities.
RESTRICTIONS IN TEMPORARY OR PERMANENT PARENTING PLANS
Sec. 3. RCW
26.09.191 and 2021 c 215 s 134 are each 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))GENERAL CONSIDERATIONS.
(a) In entering a permanent parenting plan, the court shall not draw any presumptions from the provisions of the temporary parenting plan.
(b) The weight given to the existence of a protection order issued under chapter 7.105 RCW or former chapter 26.50 RCW as to domestic violence is within the discretion of the court. (c) In determining whether any of the conduct described in this section or section 8 of this act has occurred, the court shall apply the rules of evidence and civil procedure except where the parties have opted for an informal family law trial pursuant to state or local court rules.
(2) DEFINITIONS. The definitions in this subsection apply throughout this section, RCW 26.09.187, and sections 5 through 8 of this act unless the context clearly requires otherwise. (a) "Child" shall also mean "children."
(b) "Domestic violence" has the same meaning as in RCW 7.105.010. (c) "Forensic" means court-ordered professional activities, such as evaluation or treatment of parties to the litigation or children of the parties for assistance in a court case.
(d) "Knowingly" means knows or reasonably should know.
(e) "Parenting functions" has the same meaning as in RCW 26.09.004. (f) "Protective actions" are actions taken by a competent, protective, and not physically or sexually abusive parent in good faith for the purpose of protecting themselves or the parent's child from the risk of harm posed by the other parent. "Protective actions" can include, but are not limited to: (i) Reports or complaints regarding child neglect or physical, sexual, or mental abuse of a child to an individual or entity connected to the provision of care or safety of the child such as law enforcement, medical professionals, therapists, schools, day cares, or child protective services; (ii) seeking court orders changing residential time; or (iii) petitions for protection or restraining orders.
(g) "Reunification treatment" means a treatment or therapy aimed at reuniting or reestablishing a relationship between a child and an estranged or rejected parent.
(h) "Sex offense against a child" means any of the following offenses involving a child victim: (i) Any sex offense as defined in RCW 9.94A.030; (ii) any offense with a finding of sexual motivation; (iii) any offense in violation of chapter 9A.44 RCW other than RCW 9A.44.132; (iv) any offense involving the sexual abuse of a minor, including any offense under chapter 9.68A RCW; or (v) any federal or out-of-state offense comparable to any offense under (h)(i) through (iv) of this subsection. (i) "Social worker" means a person with a master's degree or further advanced degree from a social work educational program accredited and approved as provided in RCW 18.320.010. (j) "Willful abandonment" has occurred when the child's parent has expressed, either by statement or conduct, an intent to forego, for an extended period, parental rights or responsibilities despite an ability to exercise such rights and responsibilities. "Willful abandonment" does not include a parent who has been unable to see the child due to incarceration, deportation, inpatient treatment, medical emergency, fleeing to an emergency shelter or domestic violence shelter, or withholding of the child by the other parent.
(3) ALLEGATIONS OF DOMESTIC VIOLENCE OR CHILD ABUSE.
(a) Legislative Purpose. Understanding the effects of domestic violence and child abuse on all members of a family is crucial to discerning the best interest of a child in cases with evidence of such abuse. The determination of a child's best interest in these cases requires that existing best interest factors be evaluated in light of the domestic violence or child abuse and requires consideration of the additional factors in (b) of this subsection. This subsection sets forth the analysis and findings a court shall undertake if domestic violence or child abuse is present, based on the preponderance of the evidence, in a case in which child custody and parenting time between the parents is at issue.
(b) Domestic Violence Factors. Before considering the best interest of the child factors as set forth in RCW 26.09.187, the court shall first consider the following factors and make specific written findings regarding each factor: (i) The nature and context of the domestic violence by one parent against the other or any family member and any abuse experienced by the child from the parent who is abusive;
(ii) The historical and present parenting behaviors of each parent;
(iii) Any information about current or future risk of harm to the child or the parent or family member who is abused posed by the abusive parent, including a child's expressions of distress about contact with the parent who is abusive; and
(iv) The effects of domestic violence or child abuse on the child's physical and psychological well-being.
(c) Effects Of Domestic Violence On Best Interest Factors.
(i) In addition to the factors in (b) of this subsection, the court shall consider and make written findings regarding how domestic violence affects all best interest of the child factors as set forth in RCW 26.09.187. (ii) The best interests of the child are ordinarily served 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 or as required to protect the child from physical, mental, or emotional harm.
(iii) In addition to the best interest factors set forth in RCW 26.09.187, the court shall consider and make written findings regarding how the domestic violence affects each of the following best interest factors: (A) The child's historical and present relationship with each parent and the child's siblings;
(B) Any protective behaviors engaged in by a parent who is abused to support the safety and psychological well-being of each child;
(C) Each child's adjustment to changes in daily life; and
(D) Whether and how each child's physical, social, and psychological needs are or have been met by each parent.
(d) Provisions To Address Domestic Violence. After having assessed the nature, context, and effects of the domestic violence, the court shall address the identified effects of the domestic violence or child abuse on the child, including the child's present and future safety, and its effects on the parenting of the parent who is abused. Provisions to promote the safety, recovery, and resilience of the child and the parent who is abused could include, but are not limited to:
(i) Ensuring that the parenting plan accommodates the child's interests, activities, cultural traditions, and support systems;
(ii) Providing sufficient parenting time flexibility to adapt to the child's age, developmental stage, and social needs;
(iii) Connecting the child and the parent who is abused to available community-based resources;
(iv) Requiring the parent who is abusive to pay for any associated costs of services needed to respond to the domestic abuse, unless the costs pose an undue hardship. The court may not assess costs against the parent who is abused;
(v) If available, requiring the abusive parent to attend a program aimed at raising awareness of the harm domestic violence caused to the child and the family and addressing safe and healthy parenting; and
(vi) Any other provision that promotes the safety, resiliency, and well-being of the child and the safety of the parent who is abused, as detailed in (d)(i) through (v) of this subsection and subsection (7) of this section.
(e) Matters Not To Be Considered As Evidence Against An Abused Parent. In determining a child's best interest in a case under this section:
(i) Efforts by a parent who is abused to protect the parent's own or the parent's child's physical safety or psychological well-being from the other parent may not be considered as evidence of unwillingness to facilitate contact or a positive relationship between the parent who is abusive and the child or to cooperate with the abusive parent. A parent who is abused is exempt from any best interest factor or presumption requiring such willingness; and
(ii) Evidence that the parent who is abused suffers from the effects of the abuse by the other parent may not be the sole basis for denying a parent who is abused custody or parenting time including, but not limited to, a finding of emotional impairment.
(f) Express Findings Based On Evidence.
(i) When a parent has been alleged to have committed domestic violence, sexual assault, physical abuse, a pattern of emotional abuse of a child, or child sexual abuse, the court shall:
(A) Make express written findings that are based on evidence regarding any allegation of domestic violence or child abuse, including child sexual abuse and, in addition to any other relevant admissible evidence, consider evidence of past sexual or physical abuse committed by the accused parent, including:
(I) Any past or current protection or restraining orders against the accused parent;
(II) Sexual assault protection orders against the accused parent;
(III) Arrests of the accused parent for domestic violence, sexual violence, or child abuse; or
(IV) Convictions of the accused parent for domestic violence, sexual violence, or child abuse;
(B) Consider the dynamics of the primary aggressor; and
(C) Consider the admission of expert testimony and evidence from a court-appointed or outside professional relating to the alleged abuse only if the expert or professional demonstrates expertise and substantial direct experience working with victims of domestic violence or child abuse, including child sexual abuse, that is not solely forensic in nature.
(ii) In compliance with the federal keeping children safe from family violence act, Title 34 U.S.C. Sec. 10446, as amended, any neutral professional appointed by a court to express an opinion relating to abuse, trauma, or the behavior of victims and perpetrators of abuse and trauma must possess demonstrated expertise and experience in working with victims of domestic violence or child abuse, including child sexual abuse, that is not solely forensic in nature.
(4) MANDATORY RESIDENTIAL TIME LIMITATIONS.
(a) Parental Conduct Requiring Limits On A Parent's Residential Time. A parent's residential time with the parent's child shall be limited if it is found that a parent has engaged in any of the following conduct:
(((a)))(i) Willful abandonment that continues for an extended period of time ((or substantial refusal to perform parenting functions;
(b) physical, sexual,));
(ii) Physical abuse or a pattern of emotional abuse of a child;
((
or (c) a))
(iii) A history of acts of domestic violence as defined in RCW
7.105.010 ((
or))
, an assault ((
or sexual assault)) that causes grievous bodily harm or the fear of such harm ((
or that results in a pregnancy.(2)(a) The)), or any sexual assault; or
(iv) Sexual abuse of a child. Required limitations and considerations for a parent who has been convicted of a sex offense against a child or found to have sexually abused a child in the current case or a prior case are addressed in section 8 of this act.
(b) Parent Residing With A Person Whose Conduct Requires Residential Time Limitations. A parent's residential time with the child shall be limited if it is found that the parent knowingly resides with a person who 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,))
(i) Physical abuse or a pattern of emotional abuse of a child;
((
(iii) a))
(ii) A history of acts of domestic violence as defined in RCW
7.105.010 ((
or))
, an assault ((
or sexual assault)) that causes grievous bodily harm or the fear of such harm ((
or that results in a pregnancy; or (iv) the parent has been convicted as an adult of a sex offense under:(A) RCW 9A.44.076 if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (d) of this subsection; (B) RCW 9A.44.079 if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (d) of this subsection; (C) RCW 9A.44.086 if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (d) of this subsection; (G) RCW 9A.64.020 (1) or (2) if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (d) of this subsection; (I) Any predecessor or antecedent statute for the offenses listed in (a)(iv)(A) through (H) of this subsection;
(J) Any statute from any other jurisdiction that describes an offense analogous to the offenses listed in (a)(iv)(A) through (H) of this subsection.
This subsection (2)(a) shall not apply when (c) or (d) of this subsection applies.
(b) The parent's residential time with the child shall be limited if it is found that the parent resides with a person who has engaged in any of the following conduct: (i) Physical, sexual, or a pattern of emotional abuse of a child; (ii) a history of acts of domestic violence as defined in RCW 7.105.010 or an assault or sexual assault that causes grievous bodily harm or the fear of such harm or that results in a pregnancy; or (iii) the person has been convicted as an adult or as a juvenile has been adjudicated of a sex offense under: (A) RCW 9A.44.076 if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (e) of this subsection; (B) RCW 9A.44.079 if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (e) of this subsection; (C) RCW 9A.44.086 if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (e) of this subsection; (G) RCW 9A.64.020 (1) or (2) if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (e) of this subsection; (I) Any predecessor or antecedent statute for the offenses listed in (b)(iii)(A) through (H) of this subsection;
(J) Any statute from any other jurisdiction that describes an offense analogous to the offenses listed in (b)(iii)(A) through (H) of this subsection.
This subsection (2)(b) shall not apply when (c) or (e) of this subsection applies.
(c) If a parent has been found to be a sexual predator under chapter 71.09 RCW or under an analogous statute of any other jurisdiction, the court shall restrain the parent from contact with a child that would otherwise be allowed under this chapter. If a parent resides with an adult or a juvenile who has been found to be a sexual predator under chapter 71.09 RCW or under an analogous statute of any other jurisdiction, the court shall restrain the parent from contact with the parent's child except contact that occurs outside that person's presence. (d) There is a rebuttable presumption that a parent who has been convicted as an adult of a sex offense listed in (d)(i) through (ix) of this subsection poses a present danger to a child. Unless the parent rebuts this presumption, the court shall restrain the parent from contact with a child that would otherwise be allowed under this chapter:
(i) RCW 9A.64.020 (1) or (2), provided that the person convicted was at least five years older than the other person; (iii) RCW 9A.44.076, provided that the person convicted was at least eight years older than the victim; (iv) RCW 9A.44.079, provided that the person convicted was at least eight years older than the victim; (vi) RCW 9A.44.086, provided that the person convicted was at least eight years older than the victim; (viii) Any predecessor or antecedent statute for the offenses listed in (d)(i) through (vii) of this subsection;
(ix) Any statute from any other jurisdiction that describes an offense analogous to the offenses listed in (d)(i) through (vii) of this subsection.
(e) There is a rebuttable presumption that a parent who resides with a person who, as an adult, has been convicted, or as a juvenile has been adjudicated, of the sex offenses listed in (e)(i) through (ix) of this subsection places a child at risk of abuse or harm when that parent exercises residential time in the presence of the convicted or adjudicated person. Unless the parent rebuts the presumption, the court shall restrain the parent from contact with the parent's child except for contact that occurs outside of the convicted or adjudicated person's presence:
(i) RCW 9A.64.020 (1) or (2), provided that the person convicted was at least five years older than the other person; (iii) RCW 9A.44.076, provided that the person convicted was at least eight years older than the victim; (iv) RCW 9A.44.079, provided that the person convicted was at least eight years older than the victim; (vi) RCW 9A.44.086, provided that the person convicted was at least eight years older than the victim; (viii) Any predecessor or antecedent statute for the offenses listed in (e)(i) through (vii) of this subsection;
(ix) Any statute from any other jurisdiction that describes an offense analogous to the offenses listed in (e)(i) through (vii) of this subsection.
(f) The presumption established in (d) of this subsection may be rebutted only after a written finding that the child was not conceived and subsequently born as a result of a sexual assault committed by the parent requesting residential time and that:
(i) If the child was not the victim of the sex offense committed by the parent requesting residential time, (A) contact between the child and the offending parent is appropriate and poses minimal risk to the child, and (B) the offending parent has successfully engaged in treatment for sex offenders or is engaged in and making progress in such treatment, if any was ordered by a court, and the treatment provider believes such contact is appropriate and poses minimal risk to the child; or
(ii) If the child was the victim of the sex offense committed by the parent requesting residential time, (A) contact between the child and the offending parent is appropriate and poses minimal risk to the child, (B) 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 (C) the offending parent has successfully engaged in treatment for sex offenders or is engaged in and making progress in such treatment, if any was ordered by a court, and the treatment provider believes such contact is appropriate and poses minimal risk to the child.
(g) The presumption established in (e) of this subsection may be rebutted only after a written finding that the child was not conceived and subsequently born as a result of a sexual assault committed by the parent requesting residential time and that:
(i) If the child was not the victim of the sex offense committed by the person who is residing with the parent requesting residential time, (A) contact between the child and the parent residing with the convicted or adjudicated person is appropriate and that parent is able to protect the child in the presence of the convicted or adjudicated person, and (B) the convicted or adjudicated person has successfully engaged in treatment for sex offenders or is engaged in and making progress in such treatment, if any was ordered by a court, and the treatment provider believes such contact is appropriate and poses minimal risk to the child; or
(ii) If the child was the victim of the sex offense committed by the person who is residing with the parent requesting residential time, (A) contact between the child and the parent in the presence of the convicted or adjudicated person is appropriate and poses minimal risk to the child, (B) 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 parent residing with the convicted or adjudicated person in the presence of the convicted or adjudicated person is in the child's best interest, and (C) the convicted or adjudicated person has successfully engaged in treatment for sex offenders or is engaged in and making progress in such treatment, if any was ordered by a court, and the treatment provider believes contact between the parent and child in the presence of the convicted or adjudicated person is appropriate and poses minimal risk to the child.
(h) If the court finds that the parent has met the burden of rebutting the presumption under (f) of this subsection, the court may allow a parent who has been convicted as an adult of a sex offense listed in (d)(i) through (ix) of this subsection to have residential time with the child supervised by a neutral and independent adult and pursuant to an adequate plan for supervision of such residential time. The court shall not approve of a supervisor for contact between the child and the parent unless the court finds, based on the evidence, that the supervisor is willing and capable of protecting the child from harm. The court shall revoke court approval of the supervisor upon finding, based on the evidence, that the supervisor has failed to protect the child or is no longer willing or capable of protecting the child.
(i) If the court finds that the parent has met the burden of rebutting the presumption under (g) of this subsection, the court may allow a parent residing with a person who has been adjudicated as a juvenile of a sex offense listed in (e)(i) through (ix) of this subsection to have residential time with the child in the presence of the person adjudicated as a juvenile, supervised by a neutral and independent adult and pursuant to an adequate plan for supervision of such residential time. The court shall not approve of a supervisor for contact between the child and the parent unless the court finds, based on the evidence, that the supervisor is willing and capable of protecting the child from harm. The court shall revoke court approval of the supervisor upon finding, based on the evidence, that the supervisor has failed to protect the child or is no longer willing or capable of protecting the child.
(j) If the court finds that the parent has met the burden of rebutting the presumption under (g) of this subsection, the court may allow a parent residing with a person who, as an adult, has been convicted of a sex offense listed in (e)(i) through (ix) of this subsection to have residential time with the child in the presence of the convicted person supervised by a neutral and independent adult and pursuant to an adequate plan for supervision of such residential time. The court shall not approve of a supervisor for contact between the child and the parent unless the court finds, based on the evidence, that the supervisor is willing and capable of protecting the child from harm. The court shall revoke court approval of the supervisor upon finding, based on the evidence, that the supervisor has failed to protect the child or is no longer willing or capable of protecting the child.
(k) A court shall not order unsupervised contact between the offending parent and a child of the offending parent who was sexually abused by that parent. A court may order unsupervised contact between the offending parent and a child who was not sexually abused by the parent after the presumption under (d) of this subsection has been rebutted and supervised residential time has occurred for at least two years with no further arrests or convictions of sex offenses involving children under chapter 9A.44 RCW, RCW 9A.64.020, or chapter 9.68A RCW and (i) the sex offense of the offending parent was not committed against a child of the offending parent, and (ii) the court finds that unsupervised contact between the child and the offending parent is appropriate and poses minimal risk to the child, after consideration of the testimony of a state-certified therapist, mental health counselor, or social worker with expertise in treating child sexual abuse victims who has supervised at least one period of residential time between the parent and the child, and after consideration of evidence of the offending parent's compliance with community supervision requirements, if any. If the offending parent was not ordered by a court to participate in treatment for sex offenders, then the parent shall obtain a psychosexual evaluation conducted by a certified sex offender treatment provider or a certified affiliate sex offender treatment provider indicating that the offender has the lowest likelihood of risk to reoffend before the court grants unsupervised contact between the parent and a child. (l) A court may order unsupervised contact between the parent and a child which may occur in the presence of a juvenile adjudicated of a sex offense listed in (e)(i) through (ix) of this subsection who resides with the parent after the presumption under (e) of this subsection has been rebutted and supervised residential time has occurred for at least two years during which time the adjudicated juvenile has had no further arrests, adjudications, or convictions of sex offenses involving children under chapter 9A.44 RCW, RCW 9A.64.020, or chapter 9.68A RCW, and (i) the court finds that unsupervised contact between the child and the parent that may occur in the presence of the adjudicated juvenile is appropriate and poses minimal risk to the child, after consideration of the testimony of a state-certified therapist, mental health counselor, or social worker with expertise in treatment of child sexual abuse victims who has supervised at least one period of residential time between the parent and the child in the presence of the adjudicated juvenile, and after consideration of evidence of the adjudicated juvenile's compliance with community supervision or parole requirements, if any. If the adjudicated juvenile was not ordered by a court to participate in treatment for sex offenders, then the adjudicated juvenile shall obtain a psychosexual evaluation conducted by a certified sex offender treatment provider or a certified affiliate sex offender treatment provider indicating that the adjudicated juvenile has the lowest likelihood of risk to reoffend before the court grants unsupervised contact between the parent and a child which may occur in the presence of the adjudicated juvenile who is residing with the parent. (m)(i) The limitations imposed by the court under (a) or (b) of this subsection 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 residential time. The limitations shall also be reasonably calculated to provide for the safety of the parent who may be at risk of physical, sexual, or emotional abuse or harm that could result if the parent has contact with the parent requesting residential time. The limitations the court may impose include, but are not limited to: Supervised contact between the child and the parent or completion of relevant counseling or treatment. If the court expressly finds based on the evidence that limitations 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.
(ii) The court shall not enter an order under (a) of this subsection allowing a parent to have contact with a child if the parent has been found by clear and convincing evidence in a civil action or by a preponderance of the evidence in a dependency action to have sexually abused the child, except upon recommendation by an evaluator or therapist for the child that the child is ready for contact with the parent and will not be harmed by the contact. The court shall not enter an order allowing a parent to have contact with the child in the offender's presence if the parent resides with a person who has been found by clear and convincing evidence in a civil action or by a preponderance of the evidence in a dependency action to have sexually abused a child, unless the court finds that the parent accepts that the person engaged in the harmful conduct and the parent is willing to and capable of protecting the child from harm from the person.
(iii) The court shall not enter an order under (a) of this subsection allowing a parent to have contact with a child if the parent has been found by clear and convincing evidence pursuant to RCW 26.26A.465 to have committed sexual assault, as defined in RCW 26.26A.465, against the child's parent, and that the child was born within three hundred twenty days of the sexual assault. (iv) If the court limits residential time under (a) or (b) of this subsection to require supervised contact between the child and the parent, the court shall not approve of a supervisor for contact between a child and a parent who has engaged in physical, sexual, or a pattern of emotional abuse of the child unless the court finds based upon the evidence that the supervisor accepts that the harmful conduct occurred and is willing to and capable of protecting the child from harm. The court shall revoke court approval of the supervisor upon finding, based on the evidence, that the supervisor has failed to protect the child or is no longer willing to or capable of protecting the child.
(n) If the court expressly finds based on the evidence 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 or other person'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), (b), and (m)(i) and (iv) of this subsection, or if the court expressly finds that the parent's conduct did not have an impact on the child, then the court need not apply the limitations of (a), (b), and (m)(i) and (iv) of this subsection. The weight given to the existence of a protection order issued under chapter 7.105 RCW or former chapter 26.50 RCW as to domestic violence is within the discretion of the court. This subsection shall not apply when (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), and (m)(ii) of this subsection apply. (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. Abusive use of conflict includes, but is not limited to, abusive litigation as defined in RCW 26.51.020. If the court finds a parent has engaged in abusive litigation, the court may impose any restrictions or remedies set forth in chapter 26.51 RCW in addition to including a finding in the parenting plan. Litigation that is aggressive or improper but that does not meet the definition of abusive litigation shall not constitute a basis for a finding under this section. A report made in good faith to law enforcement, a medical professional, or child protective services of sexual, physical, or mental abuse of a child shall not constitute a basis for a finding of abusive use of conflict; (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 cases involving allegations of limiting factors under subsection (2)(a)(ii) and (iii) of this section, both parties shall be screened to determine the appropriateness of a comprehensive assessment regarding the impact of the limiting factor on the child and the parties.
(5) In entering a permanent parenting plan, the court shall not draw any presumptions from the provisions of the temporary parenting plan.
(6) 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.
(7) For the purposes of this section:
(a) "A parent's child" means that parent's natural child, adopted child, or stepchild; and
(b) "Social worker" means a person with a master's or further advanced degree from a social work educational program accredited and approved as provided in RCW 18.320.010.))
, or any sexual assault; or (iii) Sexual abuse of a child. Required limitations and considerations on a parent who resides with someone convicted of a sex offense against a child or found to have sexually abused a child in the current case or a prior case are addressed in section 8 of this act.
(5) PROTECTIVE PARENTS.
(a) The court may not, solely in order to improve a deficient relationship with the other parent:
(i) Remove the child from a parent who is competent, protective, and not physically or sexually abusive, and with whom the child is bonded; or
(ii) Restrict contact between the child and a parent who is competent, protective, and not physically or sexually abusive, and with whom the child is bonded.
(b) The court may not remove the child from a competent, protective, and not physically or sexually abusive parent or restrict contact between the child and a competent, protective, and not physically or sexually abusive parent solely on the basis of protective actions taken by a competent, protective, and not physically or sexually abusive parent.
(c) Allegations That A Child Resists, Refuses, Or Shows Fear Toward Contact With A Parent; Permissible Interventions.
(i) Allegations of a child's resistance, refusal, or fear toward contact with a parent may not be presumed to be caused by the other parent.
(ii)(A) In a case involving allegations of domestic violence or child abuse and where a child is allegedly resisting, refusing, or exhibiting fear toward a parent who is allegedly abusive, the court shall utilize the following analysis:
(I) The court shall first determine whether a preponderance of the evidence supports a finding that the child is actually resisting, refusing, or exhibiting fear towards a parent;
(II) Second, if the court finds that the child is resisting, refusing, or exhibiting fear toward a parent, then the court shall assess and make written findings regarding any domestic violence and child abuse allegations, as set forth in subsection (3) of this section, and determine whether the child's behavior is a response, in whole or in part, to the domestic violence or child abuse;
(III) Next, the court shall address the domestic violence or child abuse in the order as set forth in subsections (4) and (7) of this section;
(IV) If the court finds domestic violence or child abuse and the child has exhibited resistance, refusal, or fear, the court, when determining whether to order a program for the child to address the resistance, refusal, or fear behaviors, shall consider and make written findings that the program includes:
(1) Components that meet the standards of practice for relevant mental health professional organizations and use approaches and methods generally accepted in valid research and are not associated with causing harm to a child;
(2) Approaches designed to address the effects of the abuse and trauma on the child;
(3) Processes that protect the safety of the parent who is abused and the child; and
(4) Use of risk management for the parent who is abusive, in consideration of current and potential risks of future harm.
(B) The court may not:
(I) Order a reunification treatment, unless there is generally accepted and valid proof of the safety, effectiveness, and therapeutic value of the reunification treatment and the treatment is not associated with causing harm to children;
(II) Order a reunification treatment that is predicated on cutting off a child from a competent, protective, and not physically or sexually abusive parent with whom the child is bonded; or
(III) Order family reunification treatments, programs, or services including, but not limited to, camps, workshops, therapeutic vacations, or educational programs that, as a condition of enrollment or participation, require or result in any of the following:
(1) A no-contact order;
(2) An overnight, out-of-state, or multiday stay;
(3) A transfer of physical or legal custody of the child;
(4) The use of private youth transporters or private transportation agents engaged in the use of force, threat of force, physical obstruction, acutely distressing circumstances, or circumstances that place the safety of the child at risk; or
(5) The use of threats of physical force, undue coercion, verbal abuse, isolation from the child's family, community, or other sources of support, or other acutely distressing circumstances.
(iii) Any court order to remediate the resistance of a child to have contact with a violent or abusive parent must include express written findings based on the evidence and must primarily address the behavior of that parent or the contributions of that parent to the resistance of the child before ordering the other parent to take steps to potentially improve the relationship of the child with the parent with whom the child resists contact.
(6) LIMITATIONS A COURT MAY IMPOSE ON A PARENT'S RESIDENTIAL TIME WHEN THERE IS A FINDING UNDER SUBSECTION (4) OF THIS SECTION. The limitations that may be imposed by the court under subsection (4) of this section shall be reasonably calculated to protect a child from the physical, sexual, or emotional abuse or harm that could result if a child has contact with the parent requesting residential time. The limitations shall also be reasonably calculated to provide for the safety of the parent who may be at risk of physical, sexual, or emotional abuse or harm that could result if the parent has contact with the other parent. The limitations the court may impose include, but are not limited to:
(a) Supervised Visitation. A court may, in its discretion, order supervised contact between a child and the parent.
(i) If the court requires supervised visitation, there is a presumption that the supervision shall be provided by a professional supervisor. This presumption is overcome if the court finds: (A) There is a lay person who has demonstrated through sworn testimony and evidence of past interactions with children that they are capable and committed to protecting the child from physical or emotional abuse or harm; and (B) the parent is unable to access professional supervision due to (I) geographic isolation or other factors that would make professionally supervised visitation inaccessible or (II) financial indigency that has been demonstrated by a general rule 34 waiver or other evidence that the parent's current income and necessary expenses do not allow for the cost of professional supervision.
(ii) For all supervision, the court shall include clear written guidelines and prohibitions to be followed by the supervised party. No visits shall take place until the supervised parent and supervisor, or designated representative of a professional supervision program, have signed an acknowledgment confirming that they have read the court orders and the guidelines and prohibitions regarding visitation and agree to follow them. The court shall only permit supervision by an individual or program that is committed to protecting the child from any physical or emotional abuse or harm and is willing and capable of intervening in behaviors inconsistent with the court orders and guidelines.
(iii) A parent may seek an emergency ex parte order temporarily suspending residential time until review by the court if: (A) The supervised parent repeatedly violates the court order or guidelines; (B) the supervised parent threatens the supervisor or child with physical harm, commits an act of domestic violence, or materially violates any treatment condition associated with any restrictions under this section (a missed counseling appointment does not constitute a violation); (C) the supervisor is unable or unwilling to protect the child and/or the protected parent; or (D) the supervisor is no longer willing to provide service to the supervised parent. The court suspending residential time shall set a review hearing to take place within 14 days of entering the ex parte order.
(b) Evaluation Or Treatment.
(i) Where appropriate, the court may condition residential time on successful completion of a program of intervention for parents who abuse their partners or children, including programs focused on the impact of domestic violence on children and ways to promote safe positive parenting, or other state-certified domestic violence perpetrator treatment programs approved under RCW 43.20A.735. (ii) The court determines whether a parent has successfully completed a program described in (b)(i) of this subsection, with information provided by the program director regarding the participation of the abusive parent in the program and with collateral input provided from the other parent. Any evaluation report that does not include collateral input must provide details as to why and the attempts made to obtain collateral input.
(iii) The court may refer, but may not order, a parent who is abused to receive services relating to the impact of current or past domestic violence on the parent who is abused and the child.
(iv) A parent's residential time may be conditioned on the parent's completion of an evaluation or treatment ordered by the court.
(c) No Contact. If, based on the evidence, the court expressly finds that limitations on the residential time with a child will not adequately protect a child from the harm or abuse that could result if a child has contact with the parent requesting residential time, the court shall restrain the parent requesting residential time from all contact with a child.
(7) LIMITATIONS ON DECISION MAKING AND DISPUTE RESOLUTION.
(a) The court may not order mutual decision making or dispute resolution other than court action if it is found that a parent has engaged in any of the following conduct:
(i) Willful abandonment that continues for an extended period;
(ii) Physical, sexual, or a pattern of emotional abuse of a child;
(iii) A history of acts of domestic violence as defined in RCW 7.105.010; or (iv) An assault that causes grievous bodily harm or the fear of such harm or any sexual assault.
(b) Where there has been a finding of domestic violence, including against a primary aggressor parent, there is a rebuttable presumption that sole decision making will be awarded to the other parent and not to the parent against whom a domestic violence finding has been made.
(c) The court shall not require face-to-face mediation, arbitration, or interventions, including therapeutic interventions, that require the parties to share the same physical or virtual space if there has been a finding of domestic violence.
(8) DETERMINATION NOT TO IMPOSE LIMITATIONS ON RESIDENTIAL TIME.
(a) This subsection does not apply to findings of sexual abuse which are governed by section 8 of this act.
(b) Determining Whether The Presumption Is Rebutted.
(i) In determining whether the parent who has engaged in domestic violence has rebutted a statutory presumption, the court shall consider all of the following factors:
(A) The nature and context of the domestic violence involving the parents, parenting behaviors and attributes, and the abuse's effects on the child's physical and psychological well-being;
(B) Any current or future risk posed by the parent who is abusive to the physical or psychological well-being of the child or the other parent;
(C) Evidence that the parent who engaged in domestic abuse:
(I) Can and will prioritize the child's physical and psychological well-being;
(II) Is able to make shared decisions about the child in a manner and place that does not pose a risk to the child or to the other parent; and
(III) Has adhered and is likely to adhere to court orders; and
(D) Whether the parent who is abusive has genuinely acknowledged past harm and, is committed to avoiding it in the future, and has made the necessary changes. A parent's compliance with the requirements for participation in a state-certified domestic violence perpetrator treatment program approved under RCW 43.20A.735 does not, by itself, constitute evidence that they have made the requisite changes. (ii) Regardless of whether the domestic violence presumption is rebutted, the court shall consider the best interest of the child factors as outlined in RCW 26.09.187 and subsection (3) of this section before making decisions related to custody and parenting time. (c) Requirement For Specific Findings On The Record. If a court grants custody or parenting time to a parent who engaged in domestic abuse, as provided in this section, the court shall make specific written findings on the record that detail:
(i) The factors in (b) of this subsection that rebut the domestic violence presumption and therefore allow for the custody or parenting time and that such factors are not based on a criteria in subsection (5) of this section;
(ii) How the order will promote the child's physical safety and psychological well-being; and
(iii) How the order will protect the other parent from harm posed by the parent who is abusive.
(d) Once The Presumption Has Been Rebutted.
(i) After the court has considered the specific factors related to domestic violence as outlined in subsection (3) of this section addressing the best interest of the child, and determined that it is in the child's best interest for the abusive parent to have parenting time or visitation, a court shall order appropriate residential time provisions to promote the safety and physical and psychological well-being of the child and the parent who is abused, as set forth in (d)(ii) through (ix) of this subsection.
(ii) Courts shall set out in the initial order not only the protective provisions and duration, but also the necessary behavioral changes that would support a modification.
(iii) Whether or not residential time is allowed, the court may, at the request of a party or on its own, order that specific information be kept confidential.
(iv) Courts shall determine and order specific protective measures needed for contact, exchange, and parenting time or visitation.
(v) The court should impose, to the extent possible, measures that will provide the safest conditions that promote the safety and physical and psychological well-being of the child and abused parent for the parent who is abusive to have the residential time ordered by the court.
(vi) Where appropriate, the court may order that exchanges of children between the parents be supervised, without supervision of the parenting time or visitation. There is a presumption that the supervision of the exchange shall be provided by a professional supervisor. This presumption is overcome if the court finds: (A) There is a lay person who has demonstrated through sworn testimony and evidence of past interactions with children that they are capable and committed to protecting the child from physical or emotional abuse or harm during the exchange; and (B) the parent is unable to access professional exchange supervision due to (I) geographic isolation or other factors that would make professionally supervised exchange inaccessible or (II) financial indigency that has been demonstrated by a general rule 34 waiver or other evidence that the parent's current income and necessary expenses do not allow for the cost of professional exchange supervision.
(vii) Where necessary to protect the safety and physical and psychological well-being of the child and the parent who is abused, the court may order supervised parenting time or visitation in compliance with subsection (6)(a) of this section.
(viii) The court orders for supervised visitation or exchange should include specific protective measures for arrival and departure at the visitation or exchange location.
(ix) Whether or not the court has imposed a required level of supervision for residential time or exchange, the court shall order conditions necessary to promote and enhance the safety and psychological well-being of the child and the parent who is abused. The court should ensure such conditions are met and continue to be met for the duration of the court order. Prohibitions and requirements that may be imposed upon the parent who is abusive as a condition of residential time include, but are not limited to:
(A) Prohibiting possession or consumption of alcohol or controlled substances during the residential time and for 24 hours preceding the parenting time or visitation;
(B) Requiring surrender of all firearms and ammunition for a period of time determined by the court for the safety of the child and the parent who is abused;
(C) Assessing any fees associated with the use of the court-ordered supervised visitation against the parent who is abusive, unless the fees pose a barrier to accessing the services or is an undue hardship. The court shall not assess fees related to supervision against the parent who is abused;
(D) Prohibiting overnight parenting time or visitation;
(E) Limiting communication with the child or the parent who is abused by specifying the frequency and methods of communication and the permissible reasons for such communication;
(F) Requiring location settings or devices be used during the residential time with the parent who is abusive; or
(G) Any other condition that is deemed necessary to provide for the physical and psychological safety and well-being of the child, the parent who is abused, or other family or household member.
(9) ALLOWING ACCESS. If the court grants any type of residential time to a parent who perpetrated domestic violence or child abuse, whether after a hearing or by agreement between the parents, the court shall make detailed written findings regarding how the custody or parenting time ordered by the court adequately protects the child and the parent who is abused from the risk of future physical or psychological harm and addresses the effects of the domestic violence or child abuse.
Sec. 4. RCW
26.09.187 and 2007 c 496 s 603 are each amended to read as follows:
(1) DISPUTE RESOLUTION PROCESS. The court shall not order a dispute resolution process, except court action, when it finds that any limiting factor under RCW
26.09.191 or section 8 of this act applies, or when it finds that either parent is unable to afford the cost of the proposed dispute resolution process. If a dispute resolution process is not precluded or limited, then in designating such a process the court shall consider all relevant factors, including:
(a) Differences between the parents that would substantially inhibit their effective participation in any designated process;
(b) The parents' wishes or agreements and, if the parents have entered into agreements, whether the agreements were made knowingly and voluntarily; and
(c) Differences in the parents' financial circumstances that may affect their ability to participate fully in a given dispute resolution process.
(2) ALLOCATION OF DECISION-MAKING AUTHORITY.
(a) AGREEMENTS BETWEEN THE PARTIES. The court shall approve agreements of the parties allocating decision-making authority, or specifying rules in the areas listed in RCW
26.09.184(5)(a), when it finds that:
(i) The agreement is consistent with any limitations on a parent's decision-making authority mandated by RCW
26.09.191 and section 8 of this act; and
(ii) The agreement is knowing and voluntary.
(b) SOLE DECISION-MAKING AUTHORITY. The court shall order sole decision-making to one parent when it finds that:
(i) A limitation on the other parent's decision-making authority is mandated by RCW
26.09.191 or section 8 of this act;
(ii) Both parents are opposed to mutual decision making;
(iii) One parent is opposed to mutual decision making, and such opposition is reasonable based on the criteria in (c) of this subsection.
(c) MUTUAL DECISION-MAKING AUTHORITY. Except as provided in (a) and (b) of this subsection, the court shall consider the following criteria in allocating decision-making authority:
(i) The existence of a limitation under RCW
26.09.191 or section 8 of this act;
(ii) The history of participation of each parent in decision making in each of the areas in RCW
26.09.184(5)(a);
(iii) Whether the parents have a demonstrated ability and desire to cooperate with one another in decision making in each of the areas in RCW
26.09.184(5)(a); and
(iv) The parents' geographic proximity to one another, to the extent that it affects their ability to make timely mutual decisions.
(3) RESIDENTIAL PROVISIONS.
(a) The court shall make residential provisions for each child which encourage each parent to maintain a loving, stable, and nurturing relationship with the child, consistent with the child's developmental level and the family's social and economic circumstances. The child's residential schedule shall be consistent with RCW
26.09.191 and section 8 of this act. Where the limitations of RCW
26.09.191 and section 8 of this act are not dispositive of the child's residential schedule, the court shall 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, provided they were entered into knowingly and voluntarily;
(iii) Each parent's past and potential for future performance of parenting functions as defined in RCW
26.09.004((
(3)))
(2), including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
(iv) Whether a parent's involvement or conduct has had an adverse effect on the child's best interests because of:
(A) A parent's substantial nonperformance of parenting functions;
(B) A serious mental illness as defined by the Americans with disabilities act, or physical impairment that interferes with the parent's performance of parenting functions; however, a parent's disability shall not serve as the sole basis for limiting residential time;
(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) Withholding of access to the child by a parent for a protracted period without good cause. Withholding does not include protective actions taken by a parent in good faith for the legitimate and lawful purpose of protecting the parent or the parent's child from the risk of harm posed by the other parent; or
(F) Such other factors or conduct as the court expressly finds adverse to the best interests of the child.
If the court finds that conduct under this subsection (3)(a)(iv) has had an adverse impact on the child's best interests, the court may craft parenting plan provisions to support the parent and the child to address the conduct;
(v) The emotional needs and developmental level of the child;
(((v)))(vi) The child's relationship with siblings and with other significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities;
(((vi)))(vii) The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and
(((vii)))(viii) Each parent's employment schedule, and shall make accommodations consistent with those schedules.
Factor (i) shall be given the greatest weight.
(b) Where the limitations of RCW
26.09.191 or section 8 of this act are not dispositive, the court may order that a child frequently alternate his or her residence between the households of the parents for brief and substantially equal intervals of time if such provision is in the best interests of the child. In determining whether such an arrangement is in the best interests of the child, the court may consider the parties geographic proximity to the extent necessary to ensure the ability to share performance of the parenting functions.
(c) For any child, residential provisions may contain any reasonable terms or conditions that facilitate the orderly and meaningful exercise of residential time by a parent, including but not limited to requirements of reasonable notice when residential time will not occur.
SPECIALIZED VISITATION CENTERS AND PROVIDERS
NEW SECTION. Sec. 5. (1) Courts should refer cases only to supervised visitation or safe exchange centers or providers that adhere to the prevailing guiding principles for supervised visitation and safe exchange (guiding principles) developed by the United States department of justice, office on violence against women.
(2) In addition, to help ensure that court-ordered visitation protects the safety of all family members, courts should refer cases only to supervised visitation or safe exchange centers or providers that meet the requirements of this section for parents who are abused and their children.
(3) The court making referrals to a visitation center or provider must:
(a) Become familiar with the center's or provider's purpose, specific services offered, and how the center or provider addresses the safety of parents and children, and the other requirements set forth in this subsection;
(b) Implement a referral process developed in conjunction with the center or provider to provide relevant information regarding the impressions, allegations, or evidence of risk that are relevant to the safety of a child or protected parent in the supervised visitation or exchange program. The referral information from the court to the center or provider should include detailed information related to the supervision;
(c) Be aware of the center's or provider's policies on rejecting, suspending, or terminating visits or exchanges;
(d) Ensure that courts receive reports, which include only the following information from the center or provider, in order to enforce court orders or modify orders in the event of abusive behavior during the visitation or exchange:
(i) Information about any critical incidents;
(ii) Any abusive behavior observed during the visitation or exchange; and
(iii) Information about a parent's noncompliance with the court-ordered provisions related to the supervised visitation or exchange;
(e) Include in any order that requires supervised visitation or exchange the factors the court will consider if a parent requests a modification of the conditions regarding the supervised visitation or exchange, as outlined in this section.
(4) A center or provider must:
(a) Have policies and procedures that are centered around the safety of the child and the parent who is abused and adhere to the prevailing guiding principles;
(b) Provide a secure setting by establishing security protocols and specialized procedures for supervised visitation or exchange, including methods to assist in eliminating the opportunities for parents to come in contact with one another including physical, auditory, and visual contact while on-site;
(c) Ensure meaningful access to the center's or provider's services, including services and paperwork in the primary language of the clients, using trained qualified interpreters, and offering culturally responsive services that meet the needs of diverse families;
(d) Provide staff specifically trained in domestic violence dynamics in postseparation situations;
(e) Implement confidentiality and communication policies to protect the safety and privacy of children and adults who are abused;
(f) Collaborate with the court to establish clear reporting guidelines to promote the safety of the child and the parent who is abused and provide clear communication with the court, including identification of abusive behaviors and critical incidents that occur during visitation or exchange;
(g) Provide initial and ongoing, comprehensive training to staff regarding recognizing and understanding the dynamics of domestic violence and any risk posed to the child and the parent who is abused, including how abuse may manifest in the supervised visitation or exchange setting;
(h) Design services that account for the nature, context, and effects of abuse in each family;
(i) Implement documentation practices that avoid endangering children and adult victims while documenting critical incidents and identifying abusive behavior during visitation or exchange; and
(j) Collaborate with community organizations to support families and provide referrals responsive to family needs.
USE OF EXPERTS TO ASSIST WITH DECISION MAKING IN CASES INVOLVING DOMESTIC VIOLENCE AND CHILD ABUSE
NEW SECTION. Sec. 6. (1) DEFINITION AND PURPOSE OF CUSTODY EVALUATION. For purposes of determining the best interest of the child as set forth in RCW 26.09.187, a court may use an expert to collect, analyze, and synthesize information regarding the family and to make recommendations to the court. This process is termed a "custody evaluation." (a) A custody evaluation comprises the following processes:
(i) Gathering, organizing, and summarizing relevant information regarding the family to assist with judicial determination of the best interest of the child, including the nature and context of domestic abuse, when present, and its effects on the child and parenting;
(ii) Analyzing the information to assess its sufficiency for determining the best interest of the child, including the implications of the domestic violence for children and parenting; and
(iii) Synthesis of the information collected to make a recommendation to the court regarding the custody and parenting time arrangement that would serve the best interest of the child.
(b) In cases involving domestic abuse, the expert exercises professional judgment to synthesize the information collected regarding the abuse and its effects, to assess the best interest of the child in light of that information, and to make appropriate recommendations to the court, in recognition that the child's physical and psychological welfare is paramount. The custody evaluation focuses on parenting behaviors and attributes, the risks of harm to the children and the parent who is abused, and the child's needs. The court may draw upon the expert's assessment of these factors to reach its own conclusions and render a decision.
(2) ROLE OF MENTAL HEALTH PROFESSIONAL AS EXPERT CONDUCTING A FULL CUSTODY EVALUATION.
(a) An expert conducting a full custody evaluation is a qualified, licensed mental health professional with the requisite expertise, designated by the court to collect, analyze, and synthesize information to make recommendations to the court regarding the custody or parenting of a child in a written report.
(b) The process must be conducted in accordance with state law and the court's order appointing the expert. When ordered, the expert will make written recommendations to the court. The expert will prepare the report detailing the information collected and, when sought by the court, any recommendations regarding child custody, parenting time, and related matters specified by the court. Although an expert's role is to provide the court with recommendations and the underlying information that supports the recommendations, the court makes the final decision as to the ultimate legal issue, including both the final determination of the credibility of either party's allegations and the discretionary decision as to how to order custody and parenting time.
(3) QUALIFICATIONS OF MENTAL HEALTH PROFESSIONALS AS EXPERTS FOR CUSTODY EVALUATION IN CASES INVOLVING DOMESTIC ABUSE. To qualify as a nonjudicial expert for a full custody evaluation in a case with domestic violence allegations, an individual must, in addition to any other qualifications required by law:
(a) Be a licensed mental health professional and possess, through training and experience, extensive knowledge and understanding of:
(i) All forms of domestic violence and child abuse (in cases in which child abuse is an issue), trauma, and the behaviors of parents who are abusive and the effects on parents who are abused;
(ii) The effects on children of exposure to abuse of one parent by the other and the effects on a child of physical or sexual abuse, and potential for later development of posttraumatic symptoms or effects;
(iii) How domestic violence may affect the parent who is abused and both parents' parenting;
(iv) The factors related to risk of lethality for both the parent who is abused and the child;
(v) Applicable laws and the legal rights of those who are part of the process;
(vi) Forensic interview methods; and
(vii) How to recognize the expert's own gender, cultural, and other biases related to domestic violence and child custody and how to take active steps to reduce the influence of personal biases on all parts of the full custody evaluation process;
(b) Be competent in gathering and synthesizing information relevant to risk of future abuse to children and parents;
(c) Be competent in screening for domestic violence and child abuse, including proper use of screening and assessment methods recognized as best practices in the domestic violence field and child abuse field. Any screening and assessment tools used must be identified to the court;
(d) Be competent at identifying and evaluating complex forms of domestic abuse, including coercive controlling abuse;
(e) Be able to recognize the effects of trauma, in order to properly contextualize parties' and child's demeanor and behaviors and any psychological test results;
(f) Be competent in the safe communication of the report to the parties, including anticipating strong reactions and preparing all involved to plan for their safety and the safety of the child;
(g) Obtain consultation from a professional with the requisite expertise if the expert lacks the expertise to evaluate particular relevant areas; and
(h) Disclose any:
(i) Past or concurrent referrals by attorneys, judges, attorneys for children, or other professionals involved in the case for other evaluations, or other professional appointments;
(ii) Professional and personal interactions outside of court, business dealings, and interactions; and
(iii) Donations to campaigns. If such disclosures result in a litigant or attorney objecting to the candidate working on the case, the judge should not select that evaluator for the case.
(4) ORDER APPOINTING MENTAL HEALTH PROFESSIONAL AS EXPERT TO ASSIST WITH CUSTODY/PARENTING TIME DECISION MAKING. When appointing an expert for a full custody evaluation, the court shall enter an order specifying the following:
(a) Qualifications of the expert, ensuring expertise on domestic abuse, child abuse (where it is an issue in the case), cultural considerations, and abuse-related trauma, in compliance with the standards set forth in subsection (3) of this section, and that the expert certify such compliance prior to commencing the process;
(b) The requirement that the expert implement measures to ensure the safety of the process;
(c) Scope of the information to be collected and issues to be investigated, including domestic abuse, the safety and well-being of children and parents, parent-child relationships, and demonstrated parenting ability;
(d) Scope of the issues to be analyzed and synthesized, including domestic abuse, the past and future safety and well-being of children and parents, parent-child relationships, and demonstrated parenting ability;
(e) The requirement that the parties cooperate with the expert's reasonable requests to meet the requirements of the court order;
(f) Disclosures by the expert as specified in subsection (5) of this section;
(g) Screening requirements, including domestic violence and child abuse screening;
(h) Expectations for the analysis, synthesis, and recommendations process, the expected content of the report, issues within and beyond the scope of the evaluation, and the use of psychological testing; and
(i) Expectations for the communication and release of the report, including that all parties, and self-represented litigants, must be provided a copy, in accordance with the requirements set forth in subsection (8) of this section.
(5) DISCLOSURES, SCREENING, AND SAFETY OF PROCESS BY MENTAL HEALTH PROFESSIONALS AS EXPERTS. The expert must screen for the presence of domestic violence and child abuse, initially and throughout the process, regardless of whether the court has indicated that it is an issue in the case or included it in the designated scope of the evaluation.
(a) To minimize risks to the disclosing parent and allow safety precautions to be taken, the expert must inform parents and collateral sources about the way the report and any domestic violence and child abuse information will be shared, and with whom (including, where applicable, the court or a parent), and limits on confidentiality, including mandatory reporting requirements, where applicable.
(b) The expert must take steps to ensure that the process does not inadvertently increase the risk of threats, harassment, intimidation, or violence to a parent, child, or other person.
(6) PROCESS AND RECOMMENDATIONS FOR FULL CUSTODY EVALUATION CONDUCTED BY MENTAL HEALTH PROFESSIONAL.
(a) An expert conducting a full custody evaluation must investigate and assess the nature, context, and effects of any domestic abuse, including coercive control and the risk of domestic violence and lethality, for the children, for the parent who is abused, and the implications of past abuse for the parenting of each parent.
(b) An expert shall assess how previous domestic violence affects all applicable best interest of the child factors, as specified in RCW
26.09.187.
(c) In making any recommendations to the court concerning physical custody and parenting time and decision making, an expert must account for the nature, context, and effects of the domestic violence and the risk posed, by specifying:
(i) The explicit links between any abuse history in the report and the expert's parenting recommendations concerning decision making and custody and parenting time;
(ii) Measures that address the child's safety and psychological well-being;
(iii) Measures that promote the safety and autonomy of the parent who is abused, while minimizing future risk from the parent who is abusive;
(iv) Interventions that address the present and potential future risk of abuse posed by the parent who is abusive (including, among other things, requiring supervision of custody and parenting time, limiting decision making by the parent who is abusive, and mandating completion of an abusive partner intervention program for the parent who is abusive prior to contact with children, as appropriate);
(v) If available, requiring the parent who is abusive to attend a program aimed at raising awareness of the harm domestic abuse caused to the child and the family and addressing safe and healthy parenting; and
(vi) The means of assessing whether a parent who is abusive has genuinely acknowledged past harm and committed to avoiding it in the future, and made the necessary changes, before a court considers any modification in the parenting arrangement.
(d) If domestic violence is identified as an issue in a case, an expert must:
(i) Ensure that any recommendations regarding a parenting arrangement or other interventions account for the specific nature, context, and effects of the domestic violence as set forth in RCW
26.09.191, regardless of any conclusions drawn about other hypotheses explored by the expert; and
(ii) Evaluate all hypotheses developed or assessed during the evaluation process in light of the domestic abuse, including its nature, context, and effects, as set forth in RCW
26.09.187.
(7) ADMISSIBILITY AND JUDICIAL USE OF REPORT FROM A MENTAL HEALTH PROFESSIONAL.
(a) A court should only admit findings, evidence, labels, or any diagnoses offered by an expert if the expert meets the qualifications under subsection (3) of this section, and the findings, labels, or diagnoses and evidence supporting them meet evidentiary admissibility standards for scientific evidence.
(b) The court should consider an expert's findings and recommendations when sought, but shall make its own findings and shall not delegate decision making to the expert, instead retaining full authority and discretion over the final decision.
(c) The court should consider whether to adopt the recommendations made in an expert's report in light of whether the report and the process used in its development satisfy the requirements set forth in subsection (6) of this section.
(8) RELEASE AND DISTRIBUTION OF REPORT. The court, with input from the expert, shall set forth requirements for the release and distribution of the expert's report.
(a) The expert, or counsel, should consult with the court regarding how to address potential risks associated with release of the report, including such steps as advance notice of release of the report or the creation of safety plans.
(b) The court shall set forth the conditions under which the expert, attorneys, and the parties may review, take notes on, duplicate, or disseminate reports, including an order that the reports shall not be disseminated beyond the expert, parties, and attorneys without express permission of the court.
(9) MANDATORY TRAINING FOR MENTAL HEALTH PROFESSIONALS AS EXPERTS. To be appointed by the court for custody evaluations, experts must have received training on all relevant topics under section 2 of this act, including forensic interviewing, coercive controlling abuse, dynamics of domestic violence in custody litigation, stalking, and the risks and impact of domestic violence for children, including postseparation abuse, and of child abuse.
(10) USE OF NONMENTAL HEALTH PROFESSIONAL AS EXPERT FOR INFORMATION GATHERING ONLY.
(a) If a court chooses to use a nonmental health professional as an expert to conduct the first part of the process described in subsection (1)(a)(i) of this section, or to conduct both that part and the second part of the process described in subsection (1)(a)(ii) of this section, the court shall ensure the nonmental health professional conducts the evaluation in accordance with the requirements set forth in subsection (6)(a) and (b) of this section and meets the qualifications set forth in subsection (3) of this section.
(b) Under this approach, the court may draw upon the nonmental health professional's work to conduct its own synthesis of the information and make its own findings, reach its own conclusions, and render a decision regarding the best interest of the child in accordance with the analysis set forth in RCW
26.09.187.
(c) To qualify as an expert to conduct only the information gathering process (or the information gathering and analysis process) in a case with domestic violence allegations, an individual must meet all of the expert qualifications set forth in subsection (3) of this section and section 2 of this act, except that the expert role is not limited to mental health professionals. However, a nonmental health professional should work collaboratively with a multidisciplinary team, including mental health professionals and others with relevant expertise, to ensure the requirements set forth in subsection (6) of this section are met. Members of the multidisciplinary team must also be trained in accordance with section 2 of this act.
ALTERNATIVE DISPUTE RESOLUTION PROGRAMS AND REQUIREMENTS; DUTIES OF PROFESSIONALS FACILITATING ANY ALTERNATIVE DISPUTE RESOLUTION PROCESS (INCLUDING MEDIATORS); DUTIES OF JUDGE
NEW SECTION. Sec. 7. (1) All alternative dispute resolution programs, professionals, and courts must recognize that the alternative dispute resolution process is not an appropriate process for all cases and that agreement is not necessarily the appropriate outcome of all alternative dispute resolution processes.
(2) Courts may not refer parties to an alternative dispute resolution program that does not meet the requirements of this section.
(3) All alternative dispute resolution professionals, in addition to any appropriate training and qualifications related to the type of alternative dispute resolution to be used, must receive a minimum of 10 hours of training on domestic violence annually, dynamics of domestic abuse, effects of domestic violence on children and parenting, signs of domestic abuse, future risk of domestic violence and child abuse, and implications of domestic violence for the alternative dispute resolution process, before conducting an alternative dispute resolution process.
(4) All alternative dispute resolution programs and professionals must develop and implement:
(a) A screening and ongoing assessment of the domestic violence process for all cases that meet the requirements of this section;
(b) A policy requiring that alternative dispute resolution services be provided only after each party consents to participate after being informed of the features of the process and what is required for the process to be effective and result in a safe, workable outcome (e.g., good faith and fair dealing by both parties, recognition of each party's autonomy, judgment, complete information, and safety). Consent may be withdrawn at any time and the process ended; and
(c) A set of safety procedures intended to minimize the likelihood of harm, harassment, or intimidation throughout the alternative dispute resolution process, including during the orientation session, during the negotiation process, on the way in or out of the building in which the orientation or process occurs, or safely terminating the process if a litigant withdraws consent.
(5) A professional facilitating any alternative dispute resolution process may not engage in that process when the professional determines or when either party asserts that domestic abuse, including coercive controlling abuse, has occurred unless: (a) The victim party consents after being fully informed as required in subsection (4)(b) of this section; and (b) the process is conducted in a specialized manner that fully accounts for the abuse. If such adjustments are insufficient to ensure safety from harm, harassment, or intimidation, the alternative dispute resolution process may not be used in that case.
(6) A professional facilitating any alternative dispute resolution process shall, in every case, with each party separately, conduct (a) an initial screening to determine whether domestic abuse, including coercive controlling abuse, has occurred and (b) if domestic violence is identified, an assessment of the nature and context of the abuse and its effect on the alternative dispute resolution process, including as a threshold matter, a decision by the party and the professional as to whether to proceed with the process. During this initial screening, the professional shall provide an orientation that describes the process to be used, the prerequisites for successfully conducting the process, the implications of domestic violence for the process, and the advantages and disadvantages of the process. Following the initial screening, the professional shall continue to screen and assess on an ongoing basis for domestic violence that may not have been disclosed during the initial screening.
(7) Before finalizing any agreement in a case involving domestic abuse, the alternative dispute resolution professional must specifically notify the parties that resolving the case by agreement ends the case, that there will be no trial or other opportunity to present their case to the judge, and that future changes may be made only if circumstances substantially change and the judge approves the change, unless both parties agree to the change.
(8) If the agreement on its face does not appear to serve the best interest of the children or appears manifestly unsafe, the judge may not incorporate the agreement into the final judgment unless, after further inquiry regarding any such provisions, the parties demonstrate to the court's satisfaction that the agreement is safe and serves the child's best interest.
NEW SECTION. Sec. 8. This section governs limitations on residential provisions, decision-making authority, and dispute resolution when a parent, or a person the parent resides with, has been convicted of a sex offense against a child or found to have sexually abused a child.
(1) SEXUALLY VIOLENT PREDATORS. If a parent has been found to be a sexually violent predator under chapter
71.09 RCW or under an analogous statute of any other jurisdiction, the court shall restrain the parent from contact with a child that would otherwise be allowed under this chapter. If a parent resides with an adult or a juvenile who has been found to be a sexually violent predator under chapter
71.09 RCW or under an analogous statute of any other jurisdiction, the court shall restrain the parent from contact with the parent's child except contact that occurs outside the predator's presence.
(2) CHILD SEXUAL ABUSE BY PARENT.
(a) There is a rebuttable presumption that a parent who has been convicted as an adult of a sex offense against any child in this or another jurisdiction poses a present danger to a child. Unless the parent rebuts this presumption, the court shall restrain the parent from all contact with the parent's child that would otherwise be allowed under this chapter.
(b) The court shall not enter an order allowing a parent to have contact with the parent's child if the parent has been found by a preponderance of the evidence in a dependency or family law action, including in the current case, to have sexually abused that child, except upon recommendation by a therapist for the child that the child is ready for contact with the parent and will not be harmed by the contact.
(3) PARENT RESIDING WITH A PERSON FOUND TO HAVE SEXUALLY ABUSED A CHILD.
(a) There is a rebuttable presumption that a parent who knowingly resides with a person who, as an adult, has been convicted of a sex offense against a child, or as a juvenile has been adjudicated of a sex offense against a child at least eight years younger, in this or another jurisdiction, places a child at risk of abuse or harm when that parent exercises residential time in the presence of the convicted or adjudicated person. Unless the parent rebuts the presumption, the court shall restrain the parent from contact with the parent's child except for contact that occurs outside of the convicted or adjudicated person's presence.
(b) The court shall not enter an order allowing a parent to have contact with the child in the offender's presence if the parent resides with a person who has been found by a preponderance of the evidence in a dependency or family law action, including in the current case, to have sexually abused a child, unless the court finds that the parent accepts that the person engaged in the harmful conduct and the parent is willing to and capable of protecting the child from harm from the person.
(4) REBUTTING THE PRESUMPTION OF NO CONTACT.
(a) Offending Parent. The presumption established in subsection (2)(a) of this section may be rebutted only after a written finding that:
(i) If the child was not the victim of the sex offense committed by the parent requesting residential time, (A) contact between the child and the offending parent is appropriate and poses minimal risk to the child, and (B) the offending parent has provided documentation that they have successfully completed treatment for sex offenders or are engaged in and making progress in such treatment, if any was ordered by a court; or
(ii) If the child was the victim of the sex offense committed by the parent requesting residential time, (A) contact between the child and the offending parent is appropriate and poses minimal risk to the child, (B) 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 (C) the offending parent has provided documentation that they have successfully completed treatment for sex offenders or are engaged in and making progress in such treatment, if any was ordered by a court.
(b) Parent Resides With Offending Person. The presumption established in subsection (3)(a) of this section may be rebutted only after a written finding that:
(i) If the child was not the victim of the sex offense committed by the person who is residing with the parent requesting residential time, (A) contact between the child and the parent residing with the convicted or adjudicated person is appropriate and that parent is able to protect the child in the presence of the convicted or adjudicated person, and (B) the convicted or adjudicated person has provided documentation that they have successfully completed treatment for sex offenders or are engaged in and making progress in such treatment, if any was ordered by a court; or
(ii) If the child was the victim of the sex offense committed by the person who is residing with the parent requesting residential time, (A) contact between the child and the parent in the presence of the convicted or adjudicated person is appropriate and poses minimal risk to the child, (B) 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 parent residing with the convicted or adjudicated person in the presence of the convicted or adjudicated person is in the child's best interest, and (C) the convicted or adjudicated person has provided documentation that they have successfully completed treatment for sex offenders or are engaged in and making progress in such treatment, if any was ordered by a court.
(c) Contact If Presumption Rebutted.
(i)(A) If the court finds that the parent has met the burden of rebutting the presumption under (a) of this subsection, the court may allow a parent who has been convicted as an adult of a sex offense against a child to have residential time with the child supervised by a neutral and independent adult and pursuant to an adequate plan for supervision of such residential time.
(B) The court shall not approve of a supervisor for contact between the child and the parent unless the court finds, based on the evidence, that the supervisor is willing and capable of protecting the child from harm. The court shall revoke court approval of the supervisor upon written finding, based on the evidence, that the supervisor has failed to protect the child or is no longer willing or capable of protecting the child;
(ii) If the court finds that the parent has met the burden of rebutting the presumption under (b) of this subsection, the court may allow a parent residing with a person who has been convicted of a sex offense against a child or adjudicated of a juvenile sex offense with a child at least eight years younger to have residential time with the child in the presence of that person, supervised by a neutral and independent adult and pursuant to an adequate plan for supervision of such residential time. The supervisor may be the parent if the court finds, based on the evidence, that the parent is willing and capable of protecting the child from harm. The court shall revoke court approval of the supervisor, including the parent, upon written finding, based on the evidence, that the supervisor has failed to protect the child or is no longer willing or capable of protecting the child;
(iii) A court shall not order unsupervised contact between the offending parent and a child of the offending parent who was sexually abused by that parent;
(iv) A court may order unsupervised contact between the offending parent and a child who was not sexually abused by the parent after the presumption under subsection (2)(a) of this section has been rebutted pursuant to (a) of this subsection and supervised residential time has occurred for at least two years with no further arrests or convictions of sex offenses involving children and (A) the sex offense of the offending parent was not committed against a child of the offending parent, and (B) the court finds that unsupervised contact between the child and the offending parent is appropriate and poses minimal risk to the child, after consideration of the testimony of a state-certified therapist, mental health counselor, or social worker with expertise in treating child sexual abuse victims who has supervised at least one period of residential time between the parent and the child, and after consideration of evidence of the offending parent's compliance with community supervision requirements, if any. If the offending parent was not ordered by a court to participate in treatment for sex offenders, then the parent shall obtain a psychosexual evaluation conducted by a certified sex offender treatment provider or a certified affiliate sex offender treatment provider indicating that the offender has the lowest likelihood of risk to reoffend before the court grants unsupervised contact between the parent and a child.
(5) RESTRICTED DECISION MAKING AND DISPUTE RESOLUTION. The 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 been convicted as an adult of a sex offense against any child in this or any other jurisdiction or has been found to be a sexually violent predator under chapter
71.09 RCW or under an analogous statute of any other jurisdiction.
NEW SECTION. Sec. 9. Sections 2 and 5 through 8 of this act are each added to chapter 26.09 RCW. Sec. 10. RCW
11.130.215 and 2022 c 243 s 8 are each amended to read as follows:
(1) After a hearing under RCW
11.130.195, the court may appoint a guardian for a minor, if appointment is proper under RCW
11.130.185, dismiss the proceeding, or take other appropriate action consistent with this chapter or law of this state other than this chapter.
(2) In appointing a guardian under subsection (1) of this section, the following rules apply:
(a) The court shall appoint a person nominated as guardian by a parent of the minor in a probated will or other record unless the court finds the appointment is contrary to the best interest of the minor. Any "other record" must be a declaration or other sworn document and may include a power of attorney or other sworn statement as to the care, custody, or control of the minor child.
(b) If multiple parents have nominated different persons to serve as guardian, the court shall appoint the nominee whose appointment is in the best interest of the minor, unless the court finds that appointment of none of the nominees is in the best interest of the minor.
(c) If a guardian is not appointed under (a) or (b) of this subsection, the court shall appoint the person nominated by the minor if the minor is twelve years of age or older unless the court finds that appointment is contrary to the best interest of the minor. In that case, the court shall appoint as guardian a person whose appointment is in the best interest of the minor.
(3) In the interest of maintaining or encouraging involvement by a minor's parent in the minor's life, developing self-reliance of the minor, or for other good cause, the court, at the time of appointment of a guardian for the minor or later, on its own or on motion of the minor or other interested person, may create a limited guardianship by limiting the powers otherwise granted by this article to the guardian. Following the same procedure, the court may grant additional powers or withdraw powers previously granted.
(4) The court, as part of an order appointing a guardian for a minor, shall state rights retained by any parent of the minor, which shall preserve the parent-child relationship through an order for parent-child visitation and other contact, unless the court finds the relationship should be limited or restricted under RCW
26.09.191 or section 8 of this act; and which may include decision making regarding the minor's health care, education, or other matter, or access to a record regarding the minor.
(5) An order granting a guardianship for a minor must state that each parent of the minor is entitled to notice that:
(a) The guardian has delegated custody of the minor subject to guardianship;
(b) The court has modified or limited the powers of the guardian; or
(c) The court has removed the guardian.
(6) An order granting a guardianship for a minor must identify any person in addition to a parent of the minor which is entitled to notice of the events listed in subsection (5) of this section.
(7) An order granting guardianship for a minor must direct the clerk of the court to issue letters of office to the guardian containing an expiration date which should be the minor's eighteenth birthday.
Sec. 11. RCW
26.09.194 and 2008 c 6 s 1045 are each amended to read as follows:
(1) A parent seeking a temporary order relating to parenting shall file and serve a proposed temporary parenting plan by motion. The other parent, if contesting the proposed temporary parenting plan, shall file and serve a responsive proposed parenting plan. Either parent may move to have a proposed temporary parenting plan entered as part of a temporary order. The parents may enter an agreed temporary parenting plan at any time as part of a temporary order. The proposed temporary parenting plan may be supported by relevant evidence and shall be accompanied by an affidavit or declaration which shall state at a minimum the following:
(a) The name, address, and length of residence with the person or persons with whom the child has lived for the preceding twelve months;
(b) The performance by each parent during the last twelve months of the parenting functions relating to the daily needs of the child;
(c) The parents' work and child-care schedules for the preceding twelve months;
(d) The parents' current work and child-care schedules; and
(e) Any of the circumstances set forth in RCW
26.09.191 or section 8 of this act that are likely to pose a serious risk to the child and that warrant limitation on the award to a parent of temporary residence or time with the child pending entry of a permanent parenting plan.
(2) At the hearing, the court shall enter a temporary parenting order incorporating a temporary parenting plan which includes:
(a) A schedule for the child's time with each parent when appropriate;
(b) Designation of a temporary residence for the child;
(c) Allocation of decision-making authority, if any. Absent allocation of decision-making authority consistent with RCW
26.09.187(2), neither party shall make any decision for the child other than those relating to day-to-day or emergency care of the child, which shall be made by the party who is present with the child;
(d) Provisions for temporary support for the child; and
(e) Restraining orders, if applicable, under RCW
26.09.060.
(3) A parent may make a motion for an order to show cause and the court may enter a temporary order, including a temporary parenting plan, upon a showing of necessity.
(4) A parent may move for amendment of a temporary parenting plan, and the court may order amendment to the temporary parenting plan, if the amendment conforms to the limitations of RCW
26.09.191 and section 8 of this act and is in the best interest of the child.
(5) If a proceeding for dissolution of marriage or dissolution of domestic partnership, legal separation, or declaration of invalidity is dismissed, any temporary order or temporary parenting plan is vacated.
Sec. 12. RCW
26.09.260 and 2009 c 502 s 3 are each amended to read as follows:
(1) Except as otherwise provided in subsections (4), (5), (6), (8), and (10) of this section, the court shall not modify a prior custody decree or a parenting plan unless it finds, upon the basis of facts that have arisen since the prior decree or plan or that were unknown to the court at the time of the prior decree or plan, that a substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child. The effect of a parent's military duties potentially impacting parenting functions shall not, by itself, be a substantial change of circumstances justifying a permanent modification of a prior decree or plan.
(2) In applying these standards, the court shall retain the residential schedule established by the decree or parenting plan unless:
(a) The parents agree to the modification;
(b) The child has been integrated into the family of the petitioner with the consent of the other parent in substantial deviation from the parenting plan;
(c) The child's present environment is detrimental to the child's physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child; or
(d) The court has found the nonmoving parent in contempt of court at least twice within three years because the parent failed to comply with the residential time provisions in the court-ordered parenting plan, or the parent has been convicted of custodial interference in the first or second degree under RCW
9A.40.060 or
9A.40.070.
(3) A conviction of custodial interference in the first or second degree under RCW
9A.40.060 or
9A.40.070 shall constitute a substantial change of circumstances for the purposes of this section.
(4) The court may reduce or restrict contact between the child and the parent with whom the child does not reside a majority of the time if it finds that the reduction or restriction would serve and protect the best interests of the child using the criteria in RCW
26.09.191 and section 8 of this act.
(5) The court may order adjustments to the residential aspects of a parenting plan upon a showing of a substantial change in circumstances of either parent or of the child, and without consideration of the factors set forth in subsection (2) of this section, if the proposed modification is only a minor modification in the residential schedule that does not change the residence the child is scheduled to reside in the majority of the time and:
(a) Does not exceed twenty-four full days in a calendar year; or
(b) Is based on a change of residence of the parent with whom the child does not reside the majority of the time or an involuntary change in work schedule by a parent which makes the residential schedule in the parenting plan impractical to follow; or
(c) Does not result in a schedule that exceeds ninety overnights per year in total, if the court finds that, at the time the petition for modification is filed, the decree of dissolution or parenting plan does not provide reasonable time with the parent with whom the child does not reside a majority of the time, and further, the court finds that it is in the best interests of the child to increase residential time with the parent in excess of the residential time period in (a) of this subsection. However, any motion under this subsection (5)(c) is subject to the factors established in subsection (2) of this section if the party bringing the petition has previously been granted a modification under this same subsection within twenty-four months of the current motion. Relief granted under this section shall not be the sole basis for adjusting or modifying child support.
(6) The court may order adjustments to the residential aspects of a parenting plan pursuant to a proceeding to permit or restrain a relocation of the child. The person objecting to the relocation of the child or the relocating person's proposed revised residential schedule may file a petition to modify the parenting plan, including a change of the residence in which the child resides the majority of the time, without a showing of adequate cause other than the proposed relocation itself. A hearing to determine adequate cause for modification shall not be required so long as the request for relocation of the child is being pursued. In making a determination of a modification pursuant to relocation of the child, the court shall first determine whether to permit or restrain the relocation of the child using the procedures and standards provided in RCW
26.09.405 through
26.09.560. Following that determination, the court shall determine what modification pursuant to relocation should be made, if any, to the parenting plan or custody order or visitation order.
(7) A parent with whom the child does not reside a majority of the time and whose residential time with the child is subject to limitations pursuant to RCW
26.09.191 ((
(2) or (3)))
or section 8 of this act may not seek expansion of residential time under subsection (5)(c) of this section unless that parent demonstrates a substantial change in circumstances specifically related to the basis for the limitation.
(8)(a) If a parent with whom the child does not reside a majority of the time voluntarily fails to exercise residential time for an extended period, that is, one year or longer, the court upon proper motion may make adjustments to the parenting plan in keeping with the best interests of the minor child.
(b) For the purposes of determining whether the parent has failed to exercise residential time for one year or longer, the court may not count any time periods during which the parent did not exercise residential time due to the effect of the parent's military duties potentially impacting parenting functions.
(9) A parent with whom the child does not reside a majority of the time who is required by the existing parenting plan to complete evaluations, treatment, parenting, or other classes may not seek expansion of residential time under subsection (5)(c) of this section unless that parent has fully complied with such requirements.
(10) The court may order adjustments to any of the nonresidential aspects of a parenting plan upon a showing of a substantial change of circumstances of either parent or of a child, and the adjustment is in the best interest of the child. Adjustments ordered under this section may be made without consideration of the factors set forth in subsection (2) of this section.
(11) If the parent with whom the child resides a majority of the time receives temporary duty, deployment, activation, or mobilization orders from the military that involve moving a substantial distance away from the parent's residence or otherwise would have a material effect on the parent's ability to exercise parenting functions and primary placement responsibilities, then:
(a) Any temporary custody order for the child during the parent's absence shall end no later than ten days after the returning parent provides notice to the temporary custodian, but shall not impair the discretion of the court to conduct an expedited or emergency hearing for resolution of the child's residential placement upon return of the parent and within ten days of the filing of a motion alleging an immediate danger of irreparable harm to the child. If a motion alleging immediate danger has not been filed, the motion for an order restoring the previous residential schedule shall be granted; and
(b) The temporary duty, activation, mobilization, or deployment and the temporary disruption to the child's schedule shall not be a factor in a determination of change of circumstances if a motion is filed to transfer residential placement from the parent who is a military service member.
(12) If a parent receives military temporary duty, deployment, activation, or mobilization orders that involve moving a substantial distance away from the military parent's residence or otherwise have a material effect on the military parent's ability to exercise residential time or visitation rights, at the request of the military parent, the court may delegate the military parent's residential time or visitation rights, or a portion thereof, to a child's family member, including a stepparent, or another person other than a parent, with a close and substantial relationship to the minor child for the duration of the military parent's absence, if delegating residential time or visitation rights is in the child's best interest. The court may not permit the delegation of residential time or visitation rights to a person who would be subject to limitations on residential time under RCW
26.09.191 or section 8 of this act. The parties shall attempt to resolve disputes regarding delegation of residential time or visitation rights through the dispute resolution process specified in their parenting plan, unless excused by the court for good cause shown. Such a court-ordered temporary delegation of a military parent's residential time or visitation rights does not create separate rights to residential time or visitation for a person other than a parent.
(13) If the court finds that a motion to modify a prior decree or parenting plan has been brought in bad faith, the court shall assess the attorney's fees and court costs of the nonmoving parent against the moving party.
Sec. 13. RCW
26.09.520 and 2019 c 79 s 3 are each amended to read as follows:
The person proposing to relocate with the child shall provide his or her reasons for the intended relocation. There is a rebuttable presumption that the intended relocation of the child will be permitted. A person entitled to object to the intended relocation of the child may rebut the presumption by demonstrating that the detrimental effect of the relocation outweighs the benefit of the change to the child and the relocating person, based upon the following factors. The factors listed in this section are not weighted. No inference is to be drawn from the order in which the following factors are listed:
(1) The relative strength, nature, quality, extent of involvement, and stability of the child's relationship with each parent, siblings, and other significant persons in the child's life;
(2) Prior agreements of the parties;
(3) Whether disrupting the contact between the child and the person seeking relocation would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation;
(4) Whether either parent or a person entitled to residential time with the child is subject to limitations under RCW
26.09.191 or section 8 of this act;
(5) The reasons of each person for seeking or opposing the relocation and the good faith of each of the parties in requesting or opposing the relocation;
(6) The age, developmental stage, and needs of the child, and the likely impact the relocation or its prevention will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child;
(7) The quality of life, resources, and opportunities available to the child and to the relocating party in the current and proposed geographic locations;
(8) The availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent;
(9) The alternatives to relocation and whether it is feasible and desirable for the other party to relocate also;
(10) The financial impact and logistics of the relocation or its prevention; and
(11) For a temporary order, the amount of time before a final decision can be made at trial.
Sec. 14. RCW
26.12.177 and 2011 c 292 s 7 are each amended to read as follows:
(1) All guardians ad litem appointed under this title must comply with the training requirements established under RCW
2.56.030(15), prior to their appointment in cases under Title
26 RCW, except that volunteer guardians ad litem or court-appointed special advocates may comply with alternative training requirements approved by the administrative office of the courts that meet or exceed the statewide requirements. In cases involving allegations of limiting factors under RCW
26.09.191 or section 8 of this act, the guardians ad litem appointed under this title must have additional relevant training under RCW
2.56.030(15) when it is available.
(2)(a) Each guardian ad litem program for compensated guardians ad litem shall establish a rotational registry system for the appointment of guardians ad litem under this title. If a judicial district does not have a program the court shall establish the rotational registry system. Guardians ad litem under this title shall be selected from the registry except in exceptional circumstances as determined and documented by the court. The parties may make a joint recommendation for the appointment of a guardian ad litem from the registry.
(b) In judicial districts with a population over one hundred thousand, a list of three names shall be selected from the registry and given to the parties along with the background information record as specified in RCW
26.12.175(3), including their hourly rate for services. Each party may, within three judicial days, strike one name from the list. If more than one name remains on the list, the court shall make the appointment from the names on the list. In the event all three names are stricken the person whose name appears next on the registry shall be appointed.
(c) If a party reasonably believes that the appointed guardian ad litem is inappropriate or unqualified, charges an hourly rate higher than what is reasonable for the particular proceeding, or has a conflict of interest, the party may, within three judicial days from the appointment, move for substitution of the appointed guardian ad litem by filing a motion with the court.
(d) Under this section, within either registry referred to in (a) of this subsection, a subregistry may be created that consists of guardians ad litem under contract with the department of social and health services' division of child support. Guardians ad litem on such a subregistry shall be selected and appointed in state-initiated paternity cases only.
(e) The superior court shall remove any person from the guardian ad litem registry who has been found to have misrepresented his or her qualifications.
(3) The rotational registry system shall not apply to court-appointed special advocate programs.
Sec. 15. RCW
26.51.020 and 2021 c 215 s 143 and 2021 c 65 s 103 are each reenacted and amended to read as follows:
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
(1) "Abusive litigation" means litigation where the following apply:
(a)(i) The opposing parties have a current or former intimate partner relationship;
(ii) The party who is filing, initiating, advancing, or continuing the litigation has been found by a court to have committed domestic violence against the other party pursuant to: (A) An order entered under chapter
7.105 RCW or former chapter
26.50 RCW; (B) a parenting plan with restrictions based on RCW
26.09.191((
(2)(a)(iii)))
(4)(a)(iii); or (C) a restraining order entered under chapter
26.09, 26.26A, or
26.26B RCW, provided that the issuing court made a specific finding that the restraining order was necessary due to domestic violence; and
(iii) The litigation is being initiated, advanced, or continued primarily for the purpose of harassing, intimidating, or maintaining contact with the other party; and
(b) At least one of the following factors apply:
(i) Claims, allegations, and other legal contentions made in the litigation are not warranted by existing law or by a reasonable argument for the extension, modification, or reversal of existing law, or the establishment of new law;
(ii) Allegations and other factual contentions made in the litigation are without the existence of evidentiary support; or
(iii) An issue or issues that are the basis of the litigation have previously been filed in one or more other courts or jurisdictions and the actions have been litigated and disposed of unfavorably to the party filing, initiating, advancing, or continuing the litigation.
(2) "Intimate partner" is defined in RCW
7.105.010.
(3) "Litigation" means any kind of legal action or proceeding including, but not limited to: (a) Filing a summons, complaint, demand, or petition; (b) serving a summons, complaint, demand, or petition, regardless of whether it has been filed; (c) filing a motion, notice of court date, note for motion docket, or order to appear; (d) serving a motion, notice of court date, note for motion docket, or order to appear, regardless of whether it has been filed or scheduled; (e) filing a subpoena, subpoena duces tecum, request for interrogatories, request for production, notice of deposition, or other discovery request; or (f) serving a subpoena, subpoena duces tecum, request for interrogatories, request for production, notice of deposition, or other discovery request.
(4) "Perpetrator of abusive litigation" means a person who files, initiates, advances, or continues litigation in violation of an order restricting abusive litigation."
(2) Requires family court judicial officers, guardians ad litem, parenting evaluators, parent coordinators, investigators, and other court-appointed professionals involved in proceedings addressing parenting plans, child custody or visitation, child support, or allocation of parenting functions to complete a training program that consists of at least 20 hours of initial training and at least 15 hours of ongoing training every five years. Provides that the required training program focuses solely on domestic and sexual violence and child abuse and must be provided by a professional with substantial experience in assisting survivors of domestic violence or child abuse.
(3) Amends the definition of "protective actions" to indicate they are actions taken by a competent, protective, and not physically or sexually abusive parent. Adds definitions for "domestic violence," "forensic," and "reunification treatment."
(4) Adds new provisions addressing the analysis and findings a court must undertake if domestic violence or child abuse is present in a case. Requires the court to first consider and make specific findings on specified domestic violence factors and then address how domestic violence affects the best interest of the child factors. Requires the court to address provisions that will promote the safety, recovery, and resilience of the child and the parent who is abused, and specifies such provisions. Specifies matters that the court may not consider as evidence against an abused parent, including actions taken by the abused parent to protect the parent's own or the parent's child's physical safety or psychological well-being. Requires the court to make written findings based on evidence regarding alleged domestic violence or child abuse, and specifies the types of evidence to be considered by the court. Provides that any professional appointed to express an opinion relating to abuse, trauma, or the behavior of victims and perpetrators must possess demonstrated expertise and experience in working with victims of domestic violence or child abuse that is not solely forensic in nature.
(5) Adds new provisions relating to protective parents. Prohibits a court from restricting contact with or removing the child from a parent who is competent, protective, and not physically or sexually abusive, and with whom the child is bonded, solely to improve a deficient relationship with the other parent or solely on the basis of protective actions taken by the parent. Specifies the analysis a court must use when there are allegations of domestic violence or child abuse and where a child is allegedly resisting, refusing, or exhibiting fear toward an allegedly abusive parent. Prohibits a court from ordering reunification treatment unless there is valid proof of its safety and therapeutic value, and prohibits certain types of reunification treatment, including those predicated on cutting off a child from a competent, protective, and nonabusive parent with whom the child is bonded, or those that require or result in a no-contact order, a transfer of custody, the use of private transportation agents engaged in the use of force or threats, or the use of threats, undue coercion, verbal abuse, or isolation from the child's family.
(6) With respect to limitations that the court may impose, revises standards for court-ordered evaluation and treatment. Removes language allowing a court to order a parent to undergo evaluations for domestic violence, substance use disorder, mental health, or anger management with input from collateral sources, and to order treatment if the evidence supports a finding of the need for treatment and that the issue interferes with parenting functions. Provides instead that the court may condition residential time on successful completion of a program of intervention for parents who abuse their partners or children. Provides that successful completion must be determined by information provided by the program director regarding the participation of the abusive parent in the program and with collateral input provided from the other parent. Provides that the court may refer, but must not order, a parent who is abused to receive services relating to the impact of domestic violence on the parent who is abused and the child.
(7) Removes provisions that allow a court to not impose limitations on residential time, and that allow a court to not impose limitations on decision making and dispute resolution, based on clear and convincing evidence that specified factors exist.
(8) Removes provisions that allow a court to make exceptions in applying limitations where both parents are subject to either mandatory or discretionary limitations.
(9) Establishes new provisions addressing when a court may allow a parent who has engaged in domestic violence to have custody or residential time with a child. Requires the court, when determining whether a parent has rebutted a statutory presumption, to consider specified factors, including: The effect of the abuse on the child's well-being; evidence that the parent can and will prioritize the child's well-being and is able to make shared decisions about the child; and whether the parent has genuinely acknowledged past harm and is committed to avoiding it in the future. Requires any court order granting custody or parenting time to a parent who engaged in domestic violence to include specific written findings that detail the factors that rebut the domestic violence presumption, how the order will promote the child's physical safety and psychological well-being, and how the order will protect the other parent from harm posed by the parent who is abusive. Requires the court to include residential time provisions that promote the safety and physical and psychological well-being of the child and the parent who is abused, including supervised visitation or supervised exchanges. Creates a presumption that any requirement for supervised exchanges should be provided by a professional supervisor and provides factors for overcoming the presumption. Allows a court to impose specified prohibitions or requirements on an abusive parent as a condition of residential time, including: Prohibiting possession or consumption of alcohol or controlled substances during and for 24 hours preceding the parenting time or visitation; requiring surrender of all firearms and ammunition for a period of time determined by the court; prohibiting overnight parenting time or visitation; and requiring location settings or devices be used during the residential time with the parent who is abusive. The court must determine which parent is the primary aggressor and provides that mandatory limitations on residential time, decision-making, and dispute resolution may only be entered against the primary aggressor.
(10) Removes provisions that allow a court to impose discretionary parenting plan limitations based on a number of factors, such as: Nonperformance of parenting functions; a long-term emotional, physical or substance use impairment that interferes with parenting functions; abusive use of conflict; or withholding of access to the child. Instead amends current law governing the factors a court must consider in determining residential provisions for a child to include consideration of whether a parent's involvement or conduct has an adverse effect on the child's best interest due to these factors: Substantial nonperformance of parenting functions; a serious mental illness as defined by the Americans with Disabilities Act, physical impairment, or substance abuse impairment, that interferes with the performance of parenting functions; absence or substantial impairment of emotional ties between the parent and the child; withholding of the child from the other parent for a protracted period; or other factors or conduct as the court finds adverse to the child's best interests.
(11) Establishes new provisions relating to specialized visitation centers and providers. Provides that courts should refer cases only to supervised visitation or safe exchange centers or providers that adhere to the prevailing guiding principles. Imposes a number of requirements on a court making referrals to a visitation center or provider, including becoming familiar with the center's or provider's services and safety procedures, providing relevant referral information, and being aware of the center's or provider's policies on suspending or terminating visitation. Imposes a number of requirements on visitation centers and providers, including: Having policies and procedures that are centered around the safety of the child and the parent who is abused; establishing security protocols and specialized procedures for supervised visitation or exchanges; providing staff specifically trained in domestic violence dynamics in postseparation situations; and providing comprehensive training to staff regarding recognizing and understanding the dynamics of domestic violence and any risk posed to the child and the parent who is abused, including how abuse may manifest in the supervised visitation or exchange setting.
(12) Establishes new provisions with detailed requirements relating to custody evaluations and use of experts to assist with decision making in cases involving domestic violence and child abuse. Provides that the court may use an expert to collect, analyze, and synthesize information regarding the family and to make recommendations to the court through a custody evaluation, and describes the processes that comprise a custody evaluation. Specifies the role of the mental health professional conducting a full custody evaluation. Provides that an expert appointed to conduct a full custody evaluation must be a licensed mental health professional with specified training and experience, with competency in a number of identified matters, and meet a number of other requirements. Requires a court when appointing an expert for a full custody evaluation to enter an order that specifies a number of requirements and parameters for the custody evaluation. Requires the expert to screen for domestic violence and child abuse initially and throughout the process, provide parents with specified information, and take steps to ensure the process does not increase risks for a parent or child. In addition, specifies numerous required assessments and considerations for an expert conducting a custody evaluation and making recommendations, including specific requirements if domestic violence is identified as an issue. Addresses admissibility and judicial use of the expert's report and release and distribution of the report. Requires mandatory training for experts on all relevant topics, including forensic interviewing, coercive controlling abuse, dynamics of domestic violence in custody cases, and the risks and impact of domestic violence for children. Specifies a number of requirements where the court appoints a nonmental health professional as an expert to conduct custody evaluations.
(13) Establishes new provisions addressing alternative dispute resolution (ADR) program requirements and duties of ADR professionals and judges. Establishes a number of requirements for ADR programs and prohibits courts from referring parties to an ADR program that does not meet the requirements. Requires ADR professionals to receive specified training and ADR programs to develop and implement specified policies and procedures, including: Screening and ongoing assessment of the domestic violence process; and safety procedures to minimize the likelihood of harm, harassment, or intimidation. Requires an ADR professional in every case to screen for domestic violence and conduct an assessment of the nature and context of any domestic violence and its effect on the ADR process. Provides that in cases where domestic violence has occurred, the ADR process may not be used unless the victim consents and the process is conducted in a specialized manner that accounts for the abuse. Requires the ADR professional in any case involving domestic violence to inform the parties that an ADR agreement ends the case without any trial or opportunity to present the case to a judge. Allows a judge to not incorporate an ADR agreement if the agreement on its face does not appear to serve the best interest of the children or appears manifestly unsafe, unless after further inquiry the parties demonstrate to the court the agreement is safe and serves the child's best interest.