BILL REQ. #: H-3730.2
| State of Washington | 61st Legislature | 2010 Regular Session |
Prefiled 12/07/09. Read first time 01/11/10. Referred to Committee on Judiciary.
AN ACT Relating to third-party visitation; amending RCW 26.10.160; adding a new chapter to Title 26 RCW; and repealing RCW 26.09.240.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 (1) Except as provided in subsection (2) of
this section, a person who is not the parent of the child may petition
for visitation with the child if the person has established an ongoing
and substantial relationship with the child.
(2) A person may not petition for visitation with a child if the
child's two parents, living together with the child, agree that
visitation should not be granted. For the purposes of this chapter
"parent" means a biological, adoptive, or adjudicated parent.
(3) A person has established an ongoing and substantial
relationship with a child if the person and the child have had a
relationship with substantial continuity for at least one year through
interaction, companionship, and mutuality, without expectation of
financial compensation.
NEW SECTION. Sec. 2 (1) A petition for visitation under section
1 of this act must be filed in the county where the child primarily
resides.
(2) The petitioner may not file a petition for visitation more than
once, unless:
(a) At least two years have passed since the final order issued on
the previous petition for visitation; and
(b) The petitioner shows there has been a substantial change in
circumstances of the nonmoving party or the child based on facts that
have arisen since, or facts that were unknown to the court at the time
of, the order issued on the previous petition for visitation.
(3) The petitioner must file with the petition an affidavit
alleging that:
(a) A sufficient relationship with the child exists or existed
before interference by the respondent; and
(b) The child would likely suffer harm or the substantial risk of
harm if visitation between the petitioner and child were not granted.
(4) The petitioner shall set forth facts in the affidavit
supporting the petitioner's requested order for visitation.
(5) The petitioner shall serve notice of the filing to each person
having legal custody of, or court-ordered residential time with, the
child. A person having legal custody or residential time may file an
opposing affidavit.
(6) If, based on the petition and affidavits, the court finds that
it is more likely than not that visitation will be granted, the court
shall hold a hearing.
(7) The court may not enter any temporary orders to establish,
enforce, or modify visitation under this section.
NEW SECTION. Sec. 3 (1)(a) At a hearing pursuant to section 2(6)
of this act, the court shall enter an order granting visitation if it
finds that the child would likely suffer harm or the substantial risk
of harm if visitation between the petitioner and the child is not
granted and that granting visitation between the child and petitioner
is in the best interest of the child.
(b) An order granting visitation does not confer upon the person
the rights and duties of a parent.
(2) In making its determination, the court shall consider the
respondent's reasons for denying visitation. It is presumed that a fit
parent's decision to deny visitation is in the best interest of the
child and does not create a likelihood of harm or a substantial risk of
harm to the child.
(3) To rebut the presumption, the petitioner must prove by clear
and convincing evidence that the child would likely suffer harm or the
substantial risk of harm if visitation between the petitioner and the
child were not granted.
(4) If the court finds that the petitioner has met the standard for
rebutting the presumption, or if there is no presumption because no
parent has custody of the child, the court shall consider whether it is
in the best interest of the child to enter an order granting
visitation. The petitioner must prove by clear and convincing evidence
that visitation is in the child's best interest. In determining
whether it is in the best interest of the child, the court shall
consider the following, nonexclusive factors:
(a) The love, affection, and strength of the current relationship
between the child and the petitioner and how the relationship is
beneficial to the child;
(b) The length and quality of the prior relationship between the
child and the petitioner before the respondent denied visitation,
including the role performed by the petitioner and the emotional ties
that existed between the child and the petitioner;
(c) The relationship between the petitioner and the respondent;
(d) The nature and reason for the respondent's objection to
granting the petitioner visitation;
(e) The effect that granting visitation will have on the
relationship between the child and the respondent;
(f) The residential time-sharing arrangements between the parties
having residential time with the child;
(g) The good faith of the petitioner and respondent;
(h) Any history of physical, emotional, or sexual abuse or neglect
by the petitioner, or any history of physical, emotional, or sexual
abuse or neglect by a person residing with the petitioner if visitation
would involve contact between the child and the person with such
history;
(i) The child's reasonable preference, if the court considers the
child to be of sufficient age to express a preference; and
(j) Any other factor relevant to the child's best interest.
NEW SECTION. Sec. 4 (1)(a) For the purposes of sections 1
through 3 of this act, the court shall, on motion of the respondent,
order the petitioner to pay reasonable attorneys' fees to the
respondent in advance and prior to any hearing, unless the court finds
that no financial hardship will be imposed upon the respondent.
(b) The court may, on its own motion or the motion of the
respondent, order the petitioner to pay reasonable attorneys' fees and
costs to the respondent regardless of the outcome of the petition.
(2) If visitation is granted, the court shall order the petitioner
to pay all transportation costs associated with visitation.
NEW SECTION. Sec. 5 (1) A court may not modify or terminate an
order granting visitation under section 3 of this act unless it finds,
on the basis of facts that have arisen since the entry of the order or
were unknown to the court at the time it entered the order, that a
substantial change of circumstances has occurred in the circumstances
of the child or nonmoving party and that modification or termination of
the order is necessary for the best interest of the child.
(2) The petitioner must file a petition for modification or
termination in the county where the child primarily resides.
(3) The petitioner must file with the petition an affidavit
alleging that, on the basis of facts that have arisen since the entry
of the order or were unknown to the court at the time it entered the
order, there is a substantial change of circumstances of the child or
nonmoving party and that modification or termination of the order is
necessary for the best interest of the child. The petitioner shall set
forth facts in the affidavit supporting the petitioner's requested
order.
(4) The petitioner shall serve notice of the petition to each
person having legal custody of, or court-ordered residential time or
court-ordered visitation with, the child. A person having legal
custody or residential or visitation time may file an opposing
affidavit.
(5) If, based on the petition and affidavits, the court finds that
it is more likely than not that a modification or termination will be
granted, the court shall hold a hearing.
(6) The court may award reasonable attorneys' fees and costs to
either party.
Sec. 6 RCW 26.10.160 and 2004 c 38 s 13 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 certified sex offender treatment
provider or a certified affiliate 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 certified sex offender treatment provider or a certified affiliate
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.)) 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.
(4)
(((5))) (4) For the purposes of this section, a parent's child
means that parent's natural child, adopted child, or stepchild.
NEW SECTION. Sec. 7 RCW 26.09.240 (Visitation rights -- Person
other than parent -- Grandparents' visitation rights) and 1996 c 177 s 1,
1989 c 375 s 13, 1987 c 460 s 18, 1977 ex.s. c 271 s 1, & 1973 1st
ex.s. c 157 s 24 are each repealed.
NEW SECTION. Sec. 8 Sections 1 through 5 of this act constitute
a new chapter in Title