5676-S

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

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

Sec. 1. RCW 26.09.191 and 1994 c 267 s 1 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 if it is found that a parent has engaged in any of the following conduct: (a) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions; (b) physical, sexual, or a pattern of emotional abuse of a child; or (c) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm.

(2)(a) The parent's residential time with the child shall be limited if it is found that the parent has engaged in any of the following conduct: (i) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions; (ii) physical, sexual, or a pattern of emotional abuse of a child; ((or)) (iii) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm; or (iv) the parent has been convicted as an adult of a sex offense under RCW 9A.44.079, 9A.44.086, 9A.44.089, 9A.44.093, 9A.44.096, or chapter 9.68A RCW. 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; ((or)) (ii) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault that causes grievous bodily harm or the fear of such harm; or (iii) the person has been convicted as an adult of a sex offense under RCW 9A.44.086, 9A.44.089, 9A.44.093, 9A.44.096, or chapter 9.68A RCW. This subsection (2)(b) shall not apply when (c) or (d) of this subsection applies.

(c) If a parent has been ((~~convicted as an adult of a sexual offense under RCW 9A.64.020 or chapter 9.68A or 9A.44 RCW, or has been~~)) found to be a sexual predator under chapter 71.09 RCW, 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 ((~~convicted, or with a juvenile who has been adjudicated, of a sexual offense under RCW 9A.64.020 or chapter 9.68A or 9A.44 RCW, or who has been~~)) found to be a sexual predator under chapter 71.09 RCW, 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 the court shall restrain the parent from contact with a child that would otherwise be allowed under this chapter when the parent has been convicted as an adult of a sex offense under RCW 9A.64.020(1) or (2), 9A.44.073, 9A.44.076, 9A.44.083, and 9A.44.100. If a parent resides with a person who, as an adult has been convicted, or as a juvenile has been adjudicated, of a sex offense under RCW 9A.64.020(1), 9A.44.073, 9A.44.076, 9A.44.079, 9A.44.083, and 9A.44.100, the court shall restrain the parent from contact with the parent's child except contact that occurs outside the convicted or adjudicated person's presence.

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

(i) If the child was not sexually abused 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 sexually abused by the parent requesting residential time, (A) 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 (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.

(f) If the court finds that the presumption has been rebutted, the court may allow a parent who has been convicted as an adult of a sex offense under RCW 9A.64.020(1) or (2), 9A.44.073, 9A.44.076, 9A.44.083, and 9A.44.100 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.

(g) A court may order unsupervised contact between the offending parent and a child who was not sexually abused by the parent after the presumption has been rebutted and supervised residential time has occurred for at least one year with no further arrests or convictions of sexual offenses involving children under chapter 9A.44 RCW, RCW 9A.64.020, or chapter 9.68A RCW and (i) the sexual offense of the offending parent was not committed against a child, stepchild, or adopted 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 probation requirements, if any. If the offending parent was not ordered by a court to participate in treatment for sex offenders, then the evidence shall include the results of a psycho-sexual evaluation conducted by a state-certified sex offender treatment provider indicating that the offender is not a risk to reoffend.

(h)(i) The limitations imposed by the court under (a) or (b) of this subsection shall be reasonably calculated to protect the child from physical, sexual, or emotional abuse or harm that could result if the child has contact with the parent requesting residential time. If the court expressly finds based on the evidence that limitation on the residential time with the child will not adequately protect the child from the harm or abuse that could result if the child has contact with the parent requesting residential time, the court shall restrain the parent requesting residential time from all contact with the child.

(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 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) 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.

((~~(e)~~)) (i) 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 ((~~(d)~~)) (h) (i) and (iii) of this subsection, or if the court expressly finds the parent's conduct did not have an impact on the child, then the court need not apply the limitations of (a), (b), and ((~~(d)~~)) (h) (i) and (iii) of this subsection. The weight given to the existence of a protection order issued under chapter 26.50 RCW as to domestic violence is within the discretion of the court. This subsection shall not apply when (c) ((~~and (d)(ii)~~)), (d), (e), (f), and (h)(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;

(f) A parent has withheld from the other parent access to the child for a protracted period without good cause; or

(g) Such other factors or conduct as the court expressly finds adverse to the best interests of the child.

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

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

Sec. 2. RCW 26.10.160 and 1994 c 267 s 2 are each amended to read as follows:

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

(2)(a) Visitation with the child shall be limited if it is found that the parent seeking visitation has engaged in any of the following conduct: (i) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions; (ii) physical, sexual, or a pattern of emotional abuse of a child; ((or)) (iii) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm; or (iv) the parent has been convicted as an adult of a sex offense under RCW 9A.44.079, 9A.44.086, 9A.44.089, 9A.44.093, 9A.44.096, or chapter 9.68A RCW. This subsection (2)(a) shall not apply when (c) or (d) of this subsection applies.

(b) The parent's ((~~residential time~~)) visitation 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; ((or)) (ii) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm; or (iii) the person has been convicted as an adult of a sex offense under RCW 9A.44.086, 9A.44.089, 9A.44.093, 9A.44.096, or chapter 9.68A RCW. This subsection (2)(b) shall not apply when (c) or (d) of this subsection applies.

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

(i) If the child was not sexually abused by the parent requesting visitation, (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 sexually abused by the parent requesting visitation, (A) 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 (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.

(f) If the court finds that the presumption has been rebutted, the court may allow a parent who has been convicted as an adult of a sex offense under RCW 9A.64.020(1) or (2), 9A.44.073, 9A.44.076, 9A.44.083, and 9A.44.100 to have visitation with the child supervised by a neutral and independent adult and pursuant to an adequate plan for supervision of such visitation. 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.

(g) A court may order unsupervised contact between the offending parent and a child who was not sexually abused by the parent after the presumption has been rebutted and supervised visitation has occurred for at least one year with no further arrests or convictions of sexual offenses involving children under chapter 9A.44 RCW, RCW 9A.64.020, or 9.68A RCW and (i) the sexual offense of the offending parent was not committed against a child, stepchild, or adopted 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 visitation between the parent and the child, and after consideration of evidence of the offending parent's compliance with probation requirements, if any. If the offending parent was not ordered by a court to participate in treatment for sex offenders, then the evidence shall include the results of a psycho-sexual evaluation conducted by a state-certified sex offender treatment provider indicating that the offender is not a risk to reoffend.

(h)(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 visitation. If the court expressly finds based on the evidence that limitations on visitation with the child will not adequately protect the child from the harm or abuse that could result if the child has contact with the parent requesting visitation, the court shall restrain the person seeking visitation from all contact with the child.

(iii) If the court limits ((~~residential time~~)) visitation 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.

((~~(e)~~)) (i) 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 ((~~(d)~~)) (h) (i) and (iii) of this subsection, or if the court expressly finds based on the evidence 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 ((~~(d)~~)) (h) (i) and (iii) of this subsection. The weight given to the existence of a protection order issued under chapter 26.50 RCW as to domestic violence is within the discretion of the court. This subsection shall not apply when (c) ((~~and (d)(ii)~~)), (d), (e), (f), and (h)(ii) of this subsection apply.

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

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