AN ACT Relating to child custody and support; amending RCW 26.09.190, 26.09.200, 26.09.260, 26.09.280, and 9A.40.080; adding a new section to chapter 9A.40 RCW; adding new sections to chapter 26.09 RCW; creating a new section; prescribing penalties; and providing an effective date.

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

NEW SECTION. Sec. 1. The legislature finds that it is the public policy of this state to enable minor children to have frequent and continuing contact with both parents when such contact is appropriate. It is the intent of the legislature to encourage parents to share the rights and responsibilities of raising their children when in the best interests of the children. It is also the intent of the legislature to recognize the importance of flexibility in custody arrangements. Therefore the legislature finds and declares that, in the interests of children, it is the public policy of this state to recognize joint custody as an alternative to be considered with sole custody. It is the intent of the legislature that the paramount standard for custody shall be the best interests of the child and that neither joint custody nor sole custody shall be presumed to be preferred. It is the intent of the legislature that courts should be guided by this standard and that neither joint custody nor sole custody should be used as a pretext for the lowering of any support or maintenance award.

The legislature also finds that courts historically have not considered the option of ordering joint custody. The purpose of this act is to encourage the courts to consider joint custody and to require the courts to expressly state the basis for custody decisions.

NEW SECTION. Sec. 2. A new section is added to chapter 26.09 RCW to read as follows:

For the purposes of this chapter:

(1) "Joint custody" means an order awarding custody of the minor child or children to the parties in such a way as to continue the sharing of parental rights and responsibilities and to assure the child or children of having frequent and continuing contact with the parties.

(2) "Joint physical custody" means an order awarding each of the parents or parties significant periods of time in which a child resides with or is under the care and supervision of each of the parents or parties.

(3) "Joint legal custody" means that the parents or parties share, or have voluntarily allocated or the court has decreed between them, the decision-making rights, responsibilities, and authority relating to the health, education, and welfare of a child.

Sec. 3. Section 19, chapter 157, Laws of 1973 1st ex. sess. and RCW 26.09.190 are each amended to read as follows:

The court shall determine custody in accordance with the best interests of the child. The court shall consider all relevant factors including:

(1) The wishes of the child's parent or parents as to ((~~his~~)) joint or sole child custody and as to visitation privileges;

(2) The wishes of the child as to ((~~his custodian~~)) custody and as to visitation privileges;

(3) The interaction and interrelationship of the child ((~~with his~~)), the child's parent or parents, ((~~his~~)) the child's siblings, the child's grandparents and other significant relatives, and any other person who may significantly affect the child's best interests;

(4) The child's adjustment to ((~~his~~)) the child's home, school, and community; and

(5) The mental and physical health of all individuals involved.

The court shall include written findings of fact as to these relevant factors in any order in which custody is disputed. At the request of either party or on its own motion, the court may transfer the cause to the family court or refer the parties to another counseling or mediation service of their choice for amicable settlement of the issues in controversy. The court shall not consider conduct of a parent, proposed guardian, or custodian that does not affect the welfare of the child. The court shall not prefer a parent, proposed guardian, or custodian because of the parent's, proposed guardian's, or custodian's gender.

NEW SECTION. Sec. 4. A new section is added to chapter 26.09 RCW to read as follows:

In any temporary or final custody determination, the parties shall submit to the court a plan for the implementation of the custody order. If the parties cannot agree on a plan, then each party shall submit a proposed plan. The plan shall include but not be limited to provisions for:

(1) Residential arrangements for the child;

(2) Financial resources in support of the child;

(3) Frequent and continuing contact with the parties when such contact is appropriate;

(4) The continuing contact of the child with grandparents and other significant relatives;

(5) Subsequent amendments of the plan in the event of the relocation of a party or other major changes affecting the minor child; and

(6) Resolution of disputes which may arise between the parties.

NEW SECTION. Sec. 5. A new section is added to chapter 26.09 RCW to read as follows:

(1) A final order for joint custody shall include but not be limited to:

(a) Written findings of fact by the court as to the relevant factors in determining the best interests of the child under RCW 26.09.190;

(b) The implementation plan ordered by the court including but not limited to the following:

(i) Residential arrangements for the child;

(ii) Provisions for resources in support of the child;

(iii) Provisions for amendments to the implementation plan adopted by the court; and

(iv) Provisions for a mechanism for the resolution of disputes which may arise between parties. Such mechanism may include counseling, mediation, or the use of family courts.

(2) The court may include the factors in subsection (1) of this section in a temporary joint custody order under RCW 26.09.200.

(3) In its order, the court may award joint custody with or without shared or alternating residential arrangements. When a joint custody order excludes shared or alternating residential arrangements, the court shall state in its written decision the reasons for such exclusion.

NEW SECTION. Sec. 6. A new section is added to chapter 26.09 RCW to read as follows:

If, subsequent to the granting of dissolution of marriage or separation, one of the parties to the marriage dies and is survived by a minor child of the marriage, the parents of such deceased party may petition the court for reasonable visitation rights to the child of the marriage during their minority, unless the court in its discretion finds that such visitation rights would not be in the best interest of the child.

Upon the death of either parent, the custody of minor children belongs of right to the surviving parent unless the court finds that the custody is not in the child's best interest.

NEW SECTION. Sec. 7. A new section is added to chapter 26.09 RCW to read as follows:

If the parties have agreed to joint custody and have agreed to an implementation plan under section 4 of this act, the court shall order joint custody unless the court determines it is not in the best interests of the child. The court may inquire whether any alleged agreement for a joint custody plan made pursuant to this section was procured due to coercion or under duress.

Sec. 8. Section 20, chapter 157, Laws of 1973 1st ex. sess. and RCW 26.09.200 are each amended to read as follows:

A party to a custody proceeding may move for a temporary custody order. The motion must be supported by an affidavit as provided in RCW 26.09.270. The court may award temporary custody after a hearing, or, if there is no objection, solely on the basis of the affidavits.

The temporary custody order shall be for joint custody if the parties have agreed to a temporary plan under section 4 of this 1985 act unless the court determines it is not in the best interests of the child.

If a proceeding for dissolution of marriage, legal separation, or declaration of invalidity is dismissed, any temporary custody order is vacated unless a parent or the child's custodian moves that the proceeding continue as a custody proceeding and the court finds, after a hearing, that the circumstances of the parents and the best interests of the child require that a custody decree be issued.

If a custody proceeding commenced in the absence of a petition for dissolution of marriage, legal separation, or declaration of invalidity, ((~~(subsection (1) of RCW 26.09.180)~~)) is dismissed, any temporary order is vacated.

Sec. 9. Section 26, chapter 157, Laws of 1973 1st ex. sess. and RCW 26.09.260 are each amended to read as follows:

(1) The court shall not modify a prior custody decree unless it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or ((~~his~~)) the child's custodian or joint custodian and that the modification is necessary to serve the best interests of the child.

((In)) (2) For actions in which the residential arrangements for the child would be modified, in addition to applying ((~~these~~)) the standards in subsection (1) of this section, the court shall retain the custodian established by the prior decree unless:

(a) The custodian agrees to the modification;

(b) The child has been integrated into the family of the petitioner with the consent of the custodian; or

(c) The child's present environment is detrimental to ((~~his~~)) 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.

((~~(2)~~)) (3) Subsection (2) of this section shall not apply to actions in which the residential arrangements for the child would not be modified.

(4) If the court finds that a motion to modify a prior custody order has been brought in bad faith, the court shall assess the attorney's fees and court costs of the ((~~custodian~~)) respondent against the petitioner.

Sec. 10. Section 28, chapter 157, Laws of 1973 1st ex. sess. as amended by section 4, chapter 32, Laws of 1975 and RCW 26.09.280 are each amended to read as follows:

(1) Hereafter every action or proceeding to change, modify, or enforce any final order, judgment, or decree heretofore or hereafter entered in any dissolution or legal separation or declaration concerning the validity of a marriage, whether under this chapter or prior law, in relation to the care, custody, control, or support of the minor children of the marriage may be brought in the county where said minor children are then residing, or in the court in which said final order, judgment, or decree was entered, or in the county where the parent or other person who has the care, custody, or control of the said children is then residing.

(2) For the purposes of this section, a parent or other person shall only be considered to have the care, custody, or control of a child if by the terms of any final order, decree, or judgment the child is to reside with the person more than six months of the year.

(3) For the purposes of this section, a child shall only be considered to reside within a county if:

(a) The county is the county of residence within the state of the person with whom the child under the terms of any final order, decree, or judgment is to reside for more than six months of the year;

(b) The county is the county where the child has by agreement in fact resided for more than six of the last twelve months; or

(c) In the case of a child under twelve months of age, the county is the county where the child has resided more than one-half of the child's life.

(4) For the purposes of this section, if by the terms of any final order, decree, or judgment, or by agreement of the parties, the child spends an equal amount of time with two parties, the action may be brought in either county where a party resides.

NEW SECTION. Sec. 11. A new section is added to chapter 9A.40 RCW to read as follows:

(1) A person who is a custodial parent is guilty of custodial interference in the third degree if, with intent to deny access to the child by the noncustodial parent, the person fails to allow the noncustodial parent visitation rights to any children of their marriage as set forth in the final or existing decree or any order relating to the visitation of the child.

(2) Custodial interference in the third degree is a misdemeanor.

Sec. 12. Section 3, chapter 95, Laws of 1984 and RCW 9A.40.080 are each amended to read as follows:

(1) Any reasonable expenses incurred in locating or returning a child or incompetent person shall be assessed against a defendant convicted under RCW 9A.40.060 ((or)), 9A.40.070, or section 11 of this 1985 act.

(2) In any prosecution of custodial interference in the first ((or)), second, or third degree, it is a complete defense, if established by the defendant by a preponderance of the evidence, that the defendant's purpose was to protect the child, incompetent person, or himself or herself from imminent physical harm, and that the belief in the existence of the imminent physical harm was reasonable.

(3) Consent of a child less than sixteen years of age or of an incompetent person does not constitute a defense to an action under RCW 9A.40.060 ((or)), 9A.40.070, or section 11 of this 1985 act.

NEW SECTION. Sec. 13. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 14. This act shall take effect on January 1, 1986.