AN ACT Relating to restrictions
on residential time and visitation for abusive parents; amending RCW 26.09.191
and 26.10.160; and declaring an emergency.
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:
(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;
(D) RCW 9A.44.089;
(E) RCW 9A.44.093;
(F) RCW 9A.44.096;
(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;
(H) Chapter 9.68A
RCW;
(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; ((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 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;
(D) RCW 9A.44.089;
(E) RCW 9A.44.093;
(F) RCW 9A.44.096;
(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;
(H) Chapter 9.68A
RCW;
(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 ((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 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 ((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 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;
(ii) RCW 9A.44.073;
(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;
(v) RCW 9A.44.083;
(vi) RCW 9A.44.086,
provided that the person convicted was at least eight years older than the
victim;
(vii) RCW 9A.44.100;
(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;
(ii) RCW 9A.44.073;
(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;
(v) RCW 9A.44.083;
(vi) RCW 9A.44.086,
provided that the person convicted was at least eight years older than the
victim;
(vii) RCW 9A.44.100;
(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:
(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:
(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 state-certified 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 state-certified
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. 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) 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))) (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 (((d)))
(m)(i) and (iii) 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 (((d))) (m)(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), (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;
(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.
(6) For the purposes
of this section, a parent's child means that parent's natural child, adopted
child, or stepchild.
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:
(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;
(D) RCW 9A.44.089;
(E) RCW 9A.44.093;
(F) RCW 9A.44.096;
(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;
(H) Chapter 9.68A
RCW;
(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)) 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)) that causes grievous
bodily harm or the fear of such harm; 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;
(D) RCW 9A.44.089;
(E) RCW 9A.44.093;
(F) RCW 9A.44.096;
(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;
(H) Chapter 9.68A
RCW;
(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 ((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 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 ((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 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;
(ii) RCW 9A.44.073;
(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;
(v) RCW 9A.44.083;
(vi) RCW 9A.44.086,
provided that the person convicted was at least eight years older than the
victim;
(vii) RCW
9A.44.100;
(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 visitation 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;
(ii) RCW 9A.44.073;
(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;
(v) RCW 9A.44.083;
(vi) RCW 9A.44.086,
provided that the person convicted was at least eight years older than the
victim;
(vii) RCW 9A.44.100;
(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:
(i) If the child was
not the victim of the sex offense committed 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 the victim of the sex offense committed by the parent requesting
visitation, (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:
(i) If the child was
not the victim of the sex offense committed by the person who is residing with
the parent requesting visitation, (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 visitation, (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
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.
(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 visitation 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 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.
(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 visitation 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 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.
(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 visitation 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 visitation
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 state-certified 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
visitation 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 visitation 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 state-certified
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 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.
(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) 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))) (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 (((d)))
(m) (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)))
(m)(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), (g), (h), (i), (j), (k), (l), and
(m)(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.
(5) For the purposes
of this section, a parent's child means that parent's natural child, adopted
child, or stepchild.
NEW SECTION. Sec.
3. This act is necessary for
the immediate preservation of the public peace, health, or safety, or support
of the state government and its existing public institutions, and takes effect
immediately.
