Provisions of law governing when a court either must or may impose limitations in parenting plans are reorganized and updated.  Provisions governing limitations that arise as a result of sexual abuse of a child or sex offenses committed against a child are separated into a separate section of law.  Many provisions remain substantially the same or similar to requirements under current law but are restructured and given subject headings for readability.  New definitions are added for "abusive use of conflict," "protective actions," "willful abandonment," and "sex offense against a child," and a number of other substantive changes or additions are made.

 
Limitations on Residential Time Based on Sex Offenses or Sexual Abuse.
There is a rebuttable presumption that a parent must be restrained from contact with a child if the parent or a person the parent resides with has been convicted of any sex offense committed against a child.  With respect to a parent who resides with a juvenile adjudicated of a sex offense, the presumption applies only if the juvenile was at least eight years older than the victim of the offense.  Standards for rebutting the presumption are revised by removing the requirements that:  there must be a written finding that the child was not conceived and subsequently born as a result of a sexual assault committed by the parent, and the person's treatment provider believes contact between the parent and child is appropriate and poses minimal risk.

Contact if Presumption is Rebutted.  

If a court orders supervised residential time because the parent resides with a person who has been convicted as an adult or adjudicated as a juvenile of a sex offense against a child, the supervisor may be the parent if the court finds the parent is willing and capable of protecting the child from harm.  Provisions governing when a court may allow unsupervised contact between a parent and child in the presence of a juvenile adjudicated of a sex offense who resides with the parent are removed.  

Sexual Abuse by Parent or Person Who Resides With the Parent.
Language regarding the burden of proof for a finding of sexual abuse of a child in a civil action or dependency case is revised.  The finding must be based on a preponderance of the evidence in a family law or dependency case, rather than clear and convincing evidence in a civil action or by a preponderance of the evidence in a dependency action.  

Limitations That May Be Imposed.  
More specific requirements are established governing supervised visitation and court orders for evaluation and treatment. 

Supervised Visitation.  If a court orders supervised visitation, there is a presumption of supervision by a professional supervisor.  The presumption is overcome if the court finds:  there is a lay person who has demonstrated through sworn worn testimony and evidence of past interactions with children that the lay person is capable of and committed to protecting the child, and the parent is unable to access professional supervision due to geographic isolation or other factors, or due to financial indigency.

The court must include clear written guidelines and prohibitions to be followed by the supervised party.  Supervised visits may not occur until the parties have signed an acknowledgment confirming that they have read and agree to follow the court orders and the guidelines and prohibitions regarding visitation.  The court may only permit supervision by an individual or program that is committed to protecting the child from physical or emotional abuse or harm and is willing and capable of intervening in behaviors inconsistent with the court orders and guidelines.

A parent may seek an emergency ex parte order temporarily suspending residential time in certain circumstances.  The court must set a review hearing to take place within 14 days of entering an ex parte order.  The ex parte order may be requested if:  the supervised parent repeatedly violates the court order or guidelines; the supervised parent threatens the supervisor or child with physical harm, commits an act of domestic violence, or materially violates a treatment condition; or the supervisor is unable or unwilling to protect the child and/or the protected parent, or no longer willing to provide service to the supervised parent. 

Evaluation or treatment.  The court may order a parent to undergo evaluations for such issues as domestic violence, substance use disorder, mental health, or anger management, with collateral input provided from the other parent.  Reasons for any lack of collateral input from the other parent must be documented in the evaluation report.  The court may order a parent to complete treatment if the need for treatment is supported by the evidence and the evidence supports a finding that the issue interferes with parenting functions.  A parent's residential time and decision-making authority may be conditioned upon completion of court-ordered evaluation or treatment.

 
Determination Not to Impose Limitations.  
A court may decide not to impose limitations on residential time in cases where the limitations are not based on sexual abuse of a child or a sex offense against a child.  The court's determination may be based upon express written findings based on clear and convincing evidence that contact will not cause abuse or harm to the child and the probability that the abusive conduct will recur is so remote that limitations would not be in the child's best interests.  Language is removed that allows a court to not impose limitations based on an express finding that the parent's conduct did not have an impact on the child.

 
The court is given discretion to decide not to impose limitations on decision-making or dispute resolution if the court makes express written findings based on clear and convincing evidence that it would be contrary to the child's best interests to order sole decision making or limit dispute resolution.  If there has been a finding of domestic violence, the court must not require face-to-face mediation, arbitration, or interventions that require the parties to share the same physical or virtual space. 

A number of factors are established for the court to consider in determining whether there is clear and convincing evidence supporting a determination not to impose limitations.

When Limitations Apply to Both Parents. 
New provisions are established allowing a court to make exceptions in applying limitations where both parents are subject to limitations.

If mandatory residential time limitations apply to both parents, the court may make an exception in applying the limitations.  The court must make detailed written findings regarding the comparative risk of harm posed by each parent and explain the limitations imposed on each parent, including any decision not to impose restrictions on a parent or to award decision making to a parent who is subject to limitations.

If mandatory residential time limitations apply to one parent and discretionary limitations on decision-making and dispute resolution apply to the other parent, there is a presumption that mandatory limitations have priority in setting the limitations of the residential schedule, decision making, and dispute resolution.  The court must make detailed written findings of reasons for any deviation from the presumption.   

When discretionary limitations on decision-making and dispute resolution apply to both parents, the court must make detailed written findings regarding the comparative risk of harm to the child posed by each parent, and explain the limitations imposed on each parent, including any decision not to impose restrictions on a parent or to award decision making to a parent who is subject to limitations.

In making these determinations, the court must consider the best interests of the child and which parenting arrangement best maintains a child's emotional growth, health and stability, and physical care.  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.

(In support) This bill helps clarify language on parenting plan limitations and provides clear guidance for courts and judges.  Restricting parental access is sometimes necessary for the best interest of the child.  The families involved in these proceedings deserve a clear statute with consistent outcomes across the state.  Issues like domestic violence and sexual assault need to be taken seriously, and courts need to prioritize keeping children safe.  At the same time, courts need flexibility to respond to the actual family in front of them.  

There are many cases where courts have not imposed limitations where there was clear evidence of sexual abuse or domestic violence, or where a court has wrongfully imposed limitations on a parent on the basis of abandonment or abusive use of conflict because the parent is fleeing domestic violence or taking steps to protect a child from abuse.  The bill would allow for more judicial discretion to address the complexities and nuances of domestic violence cases where abusive litigation or other power and control methods are used.  The bill reduces the ability to weaponize the statute because it explicitly says that a parent acting to protect their child is not engaging in abusive use of conflict, and a parent fleeing domestic violence does not mean that the parent has abandoned their children.  

This bill will improve outcomes for survivors by providing much needed clarity.  This is particularly beneficial for survivors with no legal representation.  Survivors in rural communities do not have equitable access to civil legal aid resources and are most often self-represented in parenting plan matters.  The changes in the bill will make it much easier for survivors to clearly articulate their situation and self-advocate without legal counsel.  

Current law lacks important definitions and clear guidance which creates inconsistency in family law courts across the state.  The lack of guidance in the statute has resulted in decisions that adversely impacted survivors without the court providing the reasoning for those decisions.  The bill provides more guidance on supervision and requires a court to make detailed findings when limitations apply to both parents.    

There are significant concerns about how difficult it is to read and understand the current statute, even for experienced attorneys.  The bill will make a complex and emotionally difficult process clearer for unrepresented parties.  It will also allow judicial officers to better craft parenting plans to serve the best interests of the children and to afford due process to all the parties.  There are often cases in which implementing the current statute and the best interests of a child are in conflict.  Existing law forces judges to choose between following the law or serving the child's best interests.  The bill will help allow judges to do both.  

(Opposed) There are many shortcomings in the current system, but this bill does not provide meaningful reform.  The bill does not address the fallacy of mutual abuse.  It doesn't address discretionary limitations that are so often applied to survivors, resulting in removal of children from their protective parents.  The bill fails to define emotional impairment and fails to address abusive use of conflict, which are often unfairly applied against survivors of abuse.

The bill does not go far enough to fix the fundamental problems parents face.  Little time and thought was put into the development of this bill and important suggestions from stakeholders were rejected.  Do not let this politically expedient proposal impede development of effective and implementable family court reform policy.  House Bill 2010, which adopts Kayden's Law, offers a much better path to reform.

The bill allows judges to order decision-making between survivors and the persons who harmed them, which puts survivors at risk of continued abuse and coercive control.  It also allows discretionary limitations to be prioritized over mandatory limitations.  The bill does not address the need for judicial training.  Judges need training to understand abuse dynamics so they can correctly identify who is the perpetrator.  Without education and training, more discretion will continue to put children in a situation of continued trauma and abuse.

Judges already have too much discretion to make decisions, which are not reviewable on appeal as a practical matter.  Discretion has allowed judges to impose limitations based on abusive use of conflict simply because the parent is trying to protect herself and her children from further abuse.  Allowing more discretion opens the door to more abusers trying to silence survivors who are trying to protect themselves and their children.  The problem of judges making incorrect findings regarding domestic violence is not solved by giving more discretion to judges who get it wrong. 

There are many good provisions in the bill.  However, the concern is that these changes can be weaponized by parents.  Fifty-fifty parenting arrangements are in the best interests of children.  The goal should be to find ways to support families and parents, not punish and divide them.  Parental alienation is a real issue that can arise when a parent is separated from their children, and it has profound consequences for families.

(In support) Elizabeth Hendren, Sexual Violence Law Center; Alison Price, Rural Resources Victim Services; Em Stone, Washington State Coalition Against Domestic Violence; Mary Welch, Northwest Justice Project; Kim Todaro, Domestic Violence Legal Advocacy Project; Grace; Chandra Ifie; and Jennifer Forbes and Janet Helson, Superior Court Judges' Association.

(Opposed) Shira Cole, People Advancing Youth Equity and Safety; Tamara Ohman; Gina Yorks; Evangeline Stratton, Family Violence Appellate Project; Elizabeth Cooper; James Clark, National Parents Organization; and Kimberly Kerr.

Paula Sardiñas, We Build Back Black Alliance; Nicole Belt; Tina Swithin, One Mom's Battle; Danielle Pollack, The National Family Violence Law Center at GW Law; Michael Pollock; Rasham Nassar; Dana Tingey, High Ground; Tanya Goodman; Jack Loop; Heidi Padilla; Kim Espe; Laura Channel; Chelsi Eastwood; Olivia Ortiz; Angel Cruzado and Geoff Thomas, Guilty Without Trial Parent Group; Shaun Beals; and Stephen Hicks, National Parents Organization of Washington.