BILL REQ. #: H-3413.1
| State of Washington | 58th Legislature | 2004 Regular Session |
Prefiled 12/23/2003. Read first time 01/12/2004. Referred to Committee on Juvenile Justice & Family Law.
AN ACT Relating to visitation rights for nonparents; amending RCW 26.09.240, 26.10.160, 26.09.160, and 26.09.260; adding new sections to chapter 26.10 RCW; creating new sections; prescribing penalties; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1
NEW SECTION. Sec. 2 A new section is added to chapter 26.10 RCW
to read as follows:
(1) "Applicant" means a nonparent who initiates a proceeding under
this chapter.
(2) "Contact" includes all court-ordered arrangements by which a
nonparent is authorized to interact with a child other than custody,
conservatorship, guardianship, or joint or shared custody.
(3) "Grandparent" means a nonparent who is related to a child as
grandparent by blood, marriage, or adoption.
(4) "Harm" means that denial of contact results in substantial loss
and detriment to the child's physical, psychological, or emotional
well-being. The likelihood of harm must be beyond the normal short-term distress a child suffers due to a change in circumstances.
(5) "Nonparent" includes any person not legally recognized as a
parent whether or not related by blood, marriage, or adoption.
(6) "Parent-like relationship" means a very significant
relationship between a nonparent and a child in which the nonparent
undertook responsibilities and tasks commonly performed by parents and
commonly recognized as actions by someone in a parent-like
relationship. For nonparents other than grandparents and relatives,
"parent-like relationship" includes significant financial support
provided by the nonparent for the child's basic needs during the
relationship. Excluded from the category of persons having a parent-like relationship with a child are baby-sitters or other caregivers who
provided the child care for compensation or with the expectation of
compensation, either directly or indirectly, in whole or in part.
Compensation does not include incidental funds that the parent provides
to the nonparent to be used for the benefit of the child.
(7) "Relative" means a nonparent who is not a grandparent and who
is related to the child by blood, marriage, or adoption.
(8) "Substantially interfered" means to have unreasonably and
greatly diminished the amount and quality of contact a nonparent has
had with the child. A reasonable reduction in the frequency or length
of contact previously enjoyed with the child is not a substantial
interference.
NEW SECTION. Sec. 3 A new section is added to chapter 26.10 RCW
to read as follows:
(a)(i) The application is filed during a pending dissolution, legal
separation, or modification of a parenting plan;
(ii) A parent or custodian of the child consented to or allowed the
formation and establishment of the relationship or the relationship was
formed as a result of the unavailability or inability of any legal
parent to perform caretaking functions; and
(iii) The relationship between the applicant and the child is
beneficial to the child and to the applicant; or
(b)(i) The application is filed within twelve months from the date
a final order is entered in a dissolution, legal separation, or
modification of a parenting plan or within twelve months of the death
of one of the child's parents;
(ii) A parent or custodian of the child consented to or allowed the
formation and establishment of the relationship or the relationship was
formed as a result of the unavailability or inability of any legal
parent to perform caretaking functions;
(iii) The child's parent or custodian has substantially interfered
with the applicant's relationship with the child;
(iv) The applicant has unsuccessfully attempted to resolve any
disagreement with the parent or custodian before going to court; and
(v) The relationship between the applicant and the child is
beneficial to the child and to the applicant.
(2) Notwithstanding subsection (1) of this section, a grandparent
may initiate a court proceeding for contact with a child by filing a
verified application to obtain court-ordered contact under the
following circumstances:
(a) The application is filed within twelve months following the
effective date of this section;
(b) A parent or custodian of the child consented to or allowed the
formation and establishment of the relationship or the relationship was
formed as a result of the unavailability or inability of any legal
parent to perform caretaking functions; and
(c) The relationship between the applicant and the child is
beneficial to the child and to the applicant.
(3)(a) The court shall treat standing as a threshold issue. The
applicant bears the burden of establishing standing. If the applicant
does not satisfy this burden, the proceeding shall be dismissed.
(b) Upon a finding that the applicant has standing, the applicant
shall come forward with evidence to show that the child would very
likely suffer harm if contact were not awarded. If the applicant
presents evidence that could allow a reasonable fact finder to conclude
that the child would very likely suffer harm, the burden shifts to the
parent or custodian to present evidence why the decision to refuse
contact is reasonable and in the best interests of the child.
(4) The court shall order contact if it finds that the applicant
has satisfied the burden of showing by clear and convincing evidence
that:
(a) The child would very likely suffer harm if contact is not
awarded; and
(b) The parent's or custodian's denial of contact was unreasonable
and not in the child's best interests.
(5) If the court dismisses the proceeding for lack of standing, the
court shall award reasonable and necessary costs and fees to the
prevailing party unless there is a compelling reason to do otherwise.
In all other cases, the court may award such costs and fees as it deems
appropriate.
(6) If the parent or custodian fails to comply with a court order
awarding contact between the grandparent and the child, the grandparent
may file a motion to initiate a contempt action under RCW 26.09.160.
NEW SECTION. Sec. 4 A new section is added to chapter 26.10 RCW
to read as follows:
(a) The application is filed during a pending dissolution, legal
separation, or modification of a parenting plan;
(b) A parent or custodian of the child consented to or allowed the
formation and establishment of the relationship or the relationship was
formed as a result of the unavailability or inability of any legal
parent to perform caretaking functions;
(c) The child's parent or custodian has substantially interfered
with the applicant's relationship with the child; and
(d) The relationship between the applicant and the child is
beneficial to the child and to the applicant.
(2) Notwithstanding subsection (1) of this section, a relative may
initiate a court proceeding for contact with a child by filing a
verified application to obtain court-ordered contact under the
following circumstances:
(a) The application is filed within twelve months following the
effective date of this section;
(b) A parent or custodian of the child consented to or allowed the
formation and establishment of the relationship or the relationship was
formed as a result of the unavailability or inability of any legal
parent to perform caretaking functions;
(c) The child's parent or custodian has substantially interfered
with the applicant's relationship with the child; and
(d) The relationship between the applicant and the child is
beneficial to the child and to the applicant.
(3)(a) The court shall treat standing as a threshold issue. The
applicant bears the burden of establishing standing. If the applicant
does not satisfy this burden, the proceeding shall be dismissed.
(b) Upon a finding that the applicant has standing, the applicant
shall come forward with evidence to show that the child would very
likely suffer harm if contact were not awarded. If the applicant
presents evidence that could allow a reasonable fact finder to conclude
that the child would very likely suffer harm, the burden shifts to the
parent or custodian to present evidence why the decision to refuse
contact is reasonable and in the best interests of the child.
(4) The court shall order contact if it finds that the applicant
has satisfied the burden of showing by clear and convincing evidence
that:
(a) The child would very likely suffer harm if contact is not
awarded; and
(b) The parent's or custodian's denial of contact was unreasonable
and not in the child's best interests.
(5) If the court dismisses the proceeding for lack of standing, the
court shall award reasonable and necessary costs and fees to the
prevailing party unless there is a compelling reason to do otherwise.
In all other cases, the court may award such costs and fees as it deems
appropriate.
(6) If the parent or custodian fails to comply with a court order
awarding contact between the relative and the child, the relative may
file a motion to initiate a contempt action under RCW 26.09.160.
NEW SECTION. Sec. 5 A new section is added to chapter 26.10 RCW
to read as follows:
(a) The application is filed during a pending dissolution, legal
separation, or modification of a parenting plan;
(b) The applicant is an individual with a parent-like relationship
with the child;
(c) The relationship has been parent-like in nature for a
substantial period of time;
(d) A parent or custodian of the child consented to or allowed the
formation and establishment of the relationship or the relationship was
formed as a result of the unavailability or inability of any legal
parent to perform caretaking functions;
(e) The child's parent or custodian has substantially interfered
with the applicant's relationship with the child; and
(f) The relationship between the applicant and the child is
beneficial to the child and to the applicant.
(2)(a) The court shall treat standing as a threshold issue. The
applicant bears the burden of establishing standing. If the applicant
does not satisfy this burden, the proceeding shall be dismissed.
(b) Upon a finding that the applicant has standing, the applicant
shall come forward with evidence to show that the child would very
likely suffer harm if contact were not awarded. If the applicant
presents evidence that could allow a reasonable fact finder to conclude
that the child would very likely suffer harm, the burden shifts to the
parent or custodian to present evidence why the decision to refuse
contact is reasonable and in the best interests of the child.
(3) The court shall order contact if it finds that the applicant
has satisfied the burden of showing by clear and convincing evidence
that:
(a) The child would very likely suffer harm if contact is not
awarded; and
(b) The parent's or custodian's denial of contact was unreasonable
and not in the child's best interests.
(4) If the court dismisses the proceeding for lack of standing, the
court shall award reasonable and necessary costs and fees to the
prevailing party unless there is a compelling reason to do otherwise.
In all other cases, the court may award such costs and fees as it deems
appropriate.
(5) If the parent or custodian fails to comply with a court order
awarding contact between the nonparent and the child, the nonparent may
file a motion to initiate a contempt action under RCW 26.09.160.
Sec. 6 RCW 26.09.240 and 1996 c 177 s 1 are each amended to read
as follows:
(((1))) A person other than a parent may petition the court for
visitation with a child ((at any time or may intervene in a pending
dissolution, legal separation, or modification of parenting plan
proceeding. A person other than a parent may not petition for
visitation under this section unless the child's parent or parents have
commenced an action under this chapter.)) under section 3, 4, or 5 of this act.
(2) A petition for visitation with a child by a person other than
a parent must be filed in the county in which the child resides.
(3) A petition for visitation or a motion to intervene pursuant to
this section shall be dismissed unless the petitioner or intervenor can
demonstrate by clear and convincing evidence that a significant
relationship exists with the child with whom visitation is sought. If
the petition or motion is dismissed for failure to establish the
existence of a significant relationship, the petitioner or intervenor
shall be ordered to pay reasonable attorney's fees and costs to the
parent, parents, other custodian, or representative of the child who
responds to this petition or motion.
(4) The court may order visitation between the petitioner or
intervenor and the child between whom a significant relationship exists
upon a finding supported by the evidence that the visitation is in the
child's best interests.
(5)(a) Visitation with a grandparent shall be presumed to be in the
child's best interests when a significant relationship has been shown
to exist. This presumption may be rebutted by a preponderance of
evidence showing that visitation would endanger the child's physical,
mental, or emotional health.
(b) If the court finds that reasonable visitation by a grandparent
would be in the child's best interest except for hostilities that exist
between the grandparent and one or both of the parents or person with
whom the child lives, the court may set the matter for mediation under
RCW 26.09.015.
(6) The court may consider the following factors when making a
determination of the child's best interests:
(a) The strength of the relationship between the child and the
petitioner;
(b) The relationship between each of the child's parents or the
person with whom the child is residing and the petitioner;
(c) The nature and reason for either parent's objection to granting
the petitioner visitation;
(d) The effect that granting visitation will have on the
relationship between the child and the child's parents or the person
with whom the child is residing;
(e) The residential time sharing arrangements between the parents;
(f) The good faith of the petitioner;
(g) Any criminal history or history of physical, emotional, or
sexual abuse or neglect by the petitioner; and
(h) Any other factor relevant to the child's best interest.
(7) The restrictions of RCW 26.09.191 that apply to parents shall
be applied to a petitioner or intervenor who is not a parent. The
nature and extent of visitation, subject to these restrictions, is in
the discretion of the court.
(8) The court may order an investigation and report concerning the
proposed visitation or may appoint a guardian ad litem as provided in
RCW 26.09.220.
(9) Visitation granted pursuant to this section shall be
incorporated into the parenting plan for the child.
(10) The court may modify or terminate visitation rights granted
pursuant to this section in any subsequent modification action upon a
showing that the visitation is no longer in the best interest of the
child
Sec. 7 RCW 26.10.160 and 1996 c 303 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; (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 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; (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 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;
(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 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.
(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
(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 (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),
(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.)) A person other than a parent may petition the
court for visitation with a child under sections 3, 4, and 5 of this
act.
(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.
Sec. 8 RCW 26.09.160 and 1991 c 367 s 4 are each amended to read
as follows:
(1) The performance of parental functions and the duty to provide
child support are distinct responsibilities in the care of a child. If
a party fails to comply with a provision of a decree or temporary order
of injunction, the obligation of the other party to make payments for
support or maintenance or to permit contact with children is not
suspended. An attempt by a parent, in either the negotiation or the
performance of a parenting plan, to condition one aspect of the
parenting plan upon another, to condition payment of child support upon
an aspect of the parenting plan, to refuse to pay ordered child
support, to refuse to perform the duties provided in the parenting
plan, or to hinder the performance by the other parent of duties
provided in the parenting plan, shall be deemed bad faith and shall be
punished by the court by holding the party in contempt of court and by
awarding to the aggrieved party reasonable attorneys' fees and costs
incidental in bringing a motion for contempt of court.
(2)(a) A motion may be filed to initiate a contempt action to
coerce a parent to comply with an order establishing residential
provisions for a child or awarding contact with a child to a nonparent
under sections 3, 4, and 5 of this act. If the court finds there is
reasonable cause to believe the parent has not complied with the order,
the court may issue an order to show cause why the relief requested
should not be granted.
(b) If, based on all the facts and circumstances, the court finds
after hearing that the parent, in bad faith, has not complied with the
order establishing residential provisions for the child or awarding
contact with a nonparent, the court shall find the parent in contempt
of court. Upon a finding of contempt, the court shall order:
(i) The noncomplying parent to provide the moving party additional
time with the child. The additional time shall be equal to the time
missed with the child, due to the parent's noncompliance;
(ii) The parent to pay, to the moving party, all court costs and
reasonable attorneys' fees incurred as a result of the noncompliance,
and any reasonable expenses incurred in locating or returning a child;
and
(iii) The parent to pay, to the moving party, a civil penalty, not
less than the sum of one hundred dollars.
The court may also order the parent to be imprisoned in the county
jail, if the parent is presently able to comply with the provisions of
the court-ordered parenting plan or court order awarding contact with
a nonparent and is presently unwilling to comply. The parent may be
imprisoned until he or she agrees to comply with the order, but in no
event for more than one hundred eighty days.
(3) On a second failure within three years to comply with a
residential provision of a court-ordered parenting plan or court order
awarding contact with a nonparent, a motion may be filed to initiate
contempt of court proceedings according to the procedure set forth in
subsection (2)(a) and (b) of this section. On a finding of contempt
under this subsection, the court shall order:
(a) The noncomplying parent to provide the other parent or party
additional time with the child. The additional time shall be twice the
amount of the time missed with the child, due to the parent's
noncompliance;
(b) The noncomplying parent to pay, to the other parent or party,
all court costs and reasonable attorneys' fees incurred as a result of
the noncompliance, and any reasonable expenses incurred in locating or
returning a child; and
(c) The noncomplying parent to pay, to the moving party, a civil
penalty of not less than two hundred fifty dollars.
The court may also order the parent to be imprisoned in the county
jail, if the parent is presently able to comply with the provisions of
the court-ordered parenting plan or court order awarding contact with
a nonparent and is presently unwilling to comply. The parent may be
imprisoned until he or she agrees to comply with the order but in no
event for more than one hundred eighty days.
(4) For purposes of subsections (1), (2), and (3) of this section,
the parent shall be deemed to have the present ability to comply with
the order establishing residential provisions or awarding contact with
a nonparent unless he or she establishes otherwise by a preponderance
of the evidence. The parent shall establish a reasonable excuse for
failure to comply with the court-ordered contact with a nonparent or
the residential provision of a court-ordered parenting plan by a
preponderance of the evidence.
(5) Any monetary award ordered under subsections (1), (2), and (3)
of this section may be enforced, by the party to whom it is awarded, in
the same manner as a civil judgment.
(6) Subsections (1), (2), and (3) of this section authorize the
exercise of the court's power to impose remedial sanctions for contempt
of court and is in addition to any other contempt power the court may
possess.
(7) Upon motion for contempt of court under subsections (1) through
(3) of this section, if the court finds the motion was brought without
reasonable basis, the court shall order the moving party to pay to the
nonmoving party, all costs, reasonable attorneys' fees, and a civil
penalty of not less than one hundred dollars.
Sec. 9 RCW 26.09.260 and 2000 c 21 s 19 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.
(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 a court order awarding contact with a nonparent or 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.
(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) 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) 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.
(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 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.
NEW SECTION. Sec. 10 Captions used in this act are not part of
the law.
NEW SECTION. Sec. 11 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.