AN ACT Relating to child custody and support; amending RCW 26.09.220, and 26.09.230; adding new sections to chapter 26.09 RCW; adding new sections to chapter 9A.64 RCW; repealing RCW 26.09.130, 26.09.190, 26.09.250, and 26.09.260; prescribing penalties; and providing an effective date.

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

NEW SECTION. Sec. 1. The legislature finds and declares that it is the public policy of this state to help minor children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage. It is in the public interest to encourage parents to share the rights and responsibilities of childrearing in order to carry out this policy.

NEW SECTION. Sec. 2. In any proceeding where the custody of a minor child is an issue, the court may, during the proceeding or at any time thereafter, make an order for the custody of a minor child as may seem necessary, proper, and in the best interests of the child.

(1) Custody shall be awarded in the following order of preference, according to the best interests of the child:

(a) To both parents jointly under section 3 of this act. The court shall require the parents to submit a plan for implementation of the custody decree, under section 6 of this act.

(b) To either parent. In making an order for custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, and shall not prefer a parent as custodian because of that parent's sex. The court shall also consider which parent is more likely to allow the child continuing contact with grandparents and other significant relatives when the contact is in the best interest of the child. The burden of proof that joint custody would not be in a child's best interest shall be upon the parent requesting sole custody.

(c) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.

(d) To any other person or persons deemed by the court to be suitable and able to provide the child with an adequate and stable environment.

(2) Before the court makes any order awarding custody to a person or persons other than a parent without the consent of the parents, the court shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interests of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings. The court may, in its discretion, exclude the public from the hearing on this issue.

NEW SECTION. Sec. 3. (1) There shall be a presumption, affecting the burden of proof, that joint custody is in the best interests of a minor child unless:

(a) The court finds that joint custody would be detrimental to a particular child of a specific marriage; or

(b) The parents have agreed to an award of custody to one parent or so agree in open court at a hearing for the purpose of determining the custody of a minor child of the marriage; or

(2) For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court may direct that an investigation be conducted.

(3) If the court declines to enter an order awarding joint custody pursuant to this section, the court shall state in a written decision the reasons for its denial of an award of joint custody.

(4) An award of joint physical and legal custody obligates the parties to exchange information concerning the health, education, religion, and welfare of the minor child, and unless allocated, apportioned, or decreed, the parents or parties shall confer with one another in the exercise of decision-making rights, responsibilities, and authority.

(5) For the purposes of this chapter, "joint custody" means joint physical and legal custody. "Joint physical custody" means an order awarding each of the parents or parties significant periods of time in which a child resides with or is under the care and supervision of each of the parents or parties. Joint physical custody shall be shared by the parents or parties in such a way as to assure a child of frequent and continuing contact with both parents or parties. "Joint legal custody" means that the parents or parties share, or shall have voluntarily allocated or the court shall have decreed between them, the decision-making rights, responsibilities, and authority relating to the health, education, religion, and welfare of a child. "Sole custody" means an order awarding custody to one parent with visitation rights to the noncustodial parent unless the visitation is deemed by the court to be detrimental to a particular child of a specific marriage.

Sec. 4. Section 22, chapter 157, Laws of 1973 1st ex. sess. and RCW 26.09.220 are each amended to read as follows:

(1) In contested custody proceedings, and in other custody proceedings if a parent or the child's custodian so requests, the court may order an investigation and report concerning custodian arrangements for the child. The investigation and report may be made by the staff of the juvenile court or other professional social service organization experienced in counseling children and families.

(2) In preparing ((~~his~~)) the report concerning a child, the investigator may consult any person who may have information about the child and ((~~his~~)) potential custodian arrangements. Upon order of the court, the investigator may refer the child to professional personnel for diagnosis. The investigator may consult with and obtain information from medical, psychiatric, or other expert persons who have served the child in the past without obtaining the consent of the parent or the child's custodian; but the child's consent must be obtained if ((he)) the child has reached the age of twelve, unless the court finds that he lacks mental capacity to consent. If the requirements of subsection (3) of this section are fulfilled, the investigator's report may be received in evidence at the hearing. The report may be received in evidence upon stipulation of all interested parties.

(3) The court shall mail the investigator's report to counsel and to any party not represented by counsel at least ten days prior to the hearing unless a shorter time is ordered by the court for good cause shown. The investigator shall make available to counsel and to any party not represented by counsel the investigator's file of underlying data and reports, complete texts of diagnostic reports made to the investigator pursuant to the provisions of subsection (2) of this section, and the names and addresses of all persons whom the investigator has consulted. Any party to the proceeding may call the investigator and any person whom ((he)) the investigator has consulted for cross-examination. A party may not waive ((~~his~~)) the right of cross-examination prior to the hearing.

(4) When an investigation and report is ordered under subsection (1) of this section, the court shall investigate the financial ability of the parent, guardian, or other person charged with the support and maintenance of the minor child to pay all or part of the expenses of the investigation and report.

Sec. 5. Section 23, chapter 157, Laws of 1973 1st ex. sess. and RCW 26.09.230 are each amended to read as follows:

((~~Custody~~)) (1) Proceedings where custody or child support is the sole issue shall receive priority in being set for hearing over other civil cases except matters to which special priority is given by law. In any case in which there is more than one contested issue and one of the issues is the custody or support of a minor child, the court shall order a separate hearing on the issue of custody or support. The separate proceeding shall receive priority in being set for a hearing over other civil cases except matters to which special priority is given by law. However, the court need not hear child support and custody issues separately.

(2) Either party may petition the court to authorize the payment of necessary travel and other expenses incurred by any witness whose presence at the hearing the court deems necessary to determine the best interests of the child.

(3) The court without a jury shall determine questions of law and fact. If it finds that a public hearing may be detrimental to the child's best interests, the court may exclude the public from a custody hearing, but may admit any person who has a direct and legitimate interest in the work of the court.

(4) If the court finds it necessary to protect the child's welfare that the record of any interview, report, investigation, or testimony in a custody proceeding be kept secret, the court may make an appropriate order sealing the record.

NEW SECTION. Sec. 6. In any temporary or final custody determination, the parents or parties shall submit to the court a plan for the implementation of the joint custody order. If the parents or parties cannot agree on a plan, the family court shall have jurisdiction over the controversy under section 10 of this act. The plan shall include but not be limited to provisions for:

(1) Residential arrangements for the child;

(2) Rights of access and communication between the respective parents or parties and the child;

(3) Child support, if appropriate to the economic circumstances of the parents or parties;

(4) Subsequent amendments of the plan in the event of the relocation of a parent or party or other major changes affecting the child;

(5) Resolution of disputes which may arise between the parents or parties;

(6) The continuing contact of the child with grandparents and other significant relatives when such contact is in the best interest of the child; and

(7) Any other matter deemed in the best interest of the child.

NEW SECTION. Sec. 7. Except as otherwise agreed by the parents or parties in writing at the time of a sole custody decree, the custodian may determine the child's upbringing, including education, health care, and religious training, unless the court after hearing, finds, upon motion by the noncustodial parent or party, that in the absence of a specific limitation of the custodian's authority, the child's physical, mental, or emotional health would be endangered.

Both parents or parties including the noncustodial parent or party, unless an order terminating the parent child relationship has been entered, shall have equal access to records and information about the minor child including but not limited to medical, dental, and school records.

If both parents or all parties agree to the order, or if the court finds that in the absence of the order the child's physical, mental, or emotional health would be endangered, the court may order an appropriate agency which regularly deals with children to exercise continuing supervision over the case to assure that the custodial or visitation terms of the decree are carried out. The order may be modified by the court at any time upon petition by either parent or party.

NEW SECTION. Sec. 8. (1) Any order for joint custody, or any plan of implementation under section 6 of this act, may be modified or terminated upon the petition of one or both parents or on the court's own motion, if it is shown that the best interest of the child requires modification or termination of the order. The court shall state in its written decision the reasons for modification or termination of the joint custody order if either parent opposes the modification or termination order.

(2) Any order for the custody of a minor child of a marriage entered by a court in this state or in any other state, subject to jurisdictional requirements, may be modified at any time to an order of joint custody.

(3) If the court finds that a motion to modify or terminate a prior custody order has been brought in bad faith, the court shall assess the attorney's fees and court costs in the action against the petitioner.

NEW SECTION. Sec. 9. (1) In all cases of legal separation and dissolution of a marriage and change of custody after an original award, permanent custody of the child shall be granted to the parents consistent with section 2 of this act.

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

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

NEW SECTION. Sec. 10. The family court has jurisdiction over any controversy between spouses or parents, regardless of their marital status, involving domestic violence or when:

(1) The controversy involves child custody or visitation;

(2) The marriage would be dissolved or the household disrupted unless there is a reconciliation; and

(3) There is a minor child whose welfare might be affected.

NEW SECTION. Sec. 11. Before the filing of any proceeding for determination of custody or visitation rights, dissolution of marriage, legal separation, or a declaration concerning the validity of a marriage, either spouse or parent, or both, may file in the family court a petition invoking the jurisdiction of the court for the purpose of preserving the marriage by effecting a reconciliation between the parties, or for amicable settlement of the controversy between the spouses or parents, so as to avoid further litigation over the issue involved.

NEW SECTION. Sec. 12. The petition shall:

(1) Allege that a controversy exists between the spouses or parents and request the aid of the court to effect a reconciliation or an amicable settlement of the controversy;

(2) State the name and age of each minor child whose welfare may be affected by the controversy;

(3) State the name and address of petitioner;

(4) If the petition is presented by one spouse or parent only, list the other spouse or parent as a respondent, and the address of that spouse or parent;

(5) Name as a respondent any other person who has any relation to the controversy, and state the address of the person, if known to the petitioner;

(6) State generally and without specific allegations as to the incident if the petition arises out of an incident of domestic violence; and

(7) State other information as the court may by rule require.

NEW SECTION. Sec. 13. (1) In any proceeding where the court has ordered either or both parents to pay any amount for the support of a minor child, the court may order either parent or both parents to assign to the clerk of the court that portion of salary or wages of either parent due or to be due in the future as will be sufficient to pay the amount ordered by the court for the support of the minor child. The order shall operate as an assignment and shall be binding upon any existing or future employer of the defaulting parent upon whom a copy of the order is served. The order may be modified or revoked at any time by the court.

(2) (a) Notwithstanding the provisions of subsection (1) of this section, in any proceeding where the court has ordered either or both parents to pay any amount for the support of a minor child, upon a petition signed under penalty of perjury by the person or clerk of the court to whom support has been ordered to have been paid that the parent so ordered is in arrears in payment in a sum equal to the amount of one month of the payment within the twenty-four month period immediately preceding filing of the petition with the court, the court shall issue without notice to the parent ordered to pay support an order requiring the parent ordered to pay support to assign either to the person to whom support has been ordered to have been paid or to the clerk of the court, that portion of the salary or wages of the parent due or to be due in the future as will be sufficient to pay the amount ordered by the court for the support of the minor child. The order shall operate as an assignment and shall be binding upon any existing or future employer of the parent ordered to pay support upon whom a copy of the order is served. The petition shall state the number of previous times a petition for assignment has been filed under this subsection and the county in which any petition was filed.

(b) A petition shall not be accepted for filing under this subsection unless it contains a declaration stating that the parent or clerk of the court, to whom support has been ordered to be paid, has given the parent ordered to pay support a written notice of the intent to seek a wage assignment in the event of a default in support payments and that the notice was transmitted by certified mail or personally served at least fifteen days before the date of the filing of the petition. A written notice of intent to seek a wage assignment may be given at the time of the entry of the final decree of dissolution or at any time subsequently. In addition to any other penalty provided by law, the filing of a petition with knowledge of the falsity of the declaration of notice is punishable as contempt. The parent ordered to pay support may at any time waive the written notice required by this subsection.

(c) The parent to whom support has been ordered to be paid shall notify the court and the employer of the parent ordered to pay support, by any form of mailing requiring a return receipt, of any change of address within a reasonable period of time after any change. In instances in which payments have been ordered to be made to a county officer designated by the court, the parent to whom support has been ordered to be paid shall notify the court and the county officer, by any form of mail requiring a return receipt, of any address change within a reasonable period of time after a change. If the employer or clerk of the court is unable to deliver payments under the assignment for a period of three months due to the failure of the person to whom support has been ordered to be paid to notify the employer or clerk of the court of a change of address, the employer or clerk of the court shall not make any further payments under the assignment and shall return all undeliverable payments to the employee.

(d) An assignment order made pursuant to this subsection shall not become effective until ten days after service of the order on an employer.

(e) Within ten days of service of an assignment order issued under this subsection on an employer, the employer shall deliver a copy of the assignment order to the parent ordered to pay support.

(f) A parent alleged to be in default may move to quash an assignment order issued under this subsection within ten days after service on the parent of notice of the assignment order by his or her employer if the parent states under oath that a default in the amount alleged in the petition has not occurred within the twenty-four month period referred to in the petition or that the amount is not owed. The motion and notice of motion to quash the assignment order shall be filed with the court issuing the assignment order within ten days after service on the parent of notice of the order by the employer. The clerk of the court shall set the motion to quash for hearing within not less than fifteen days, nor more than twenty days, after receipt of the notice of motion and shall mail to the petitioner at the return address contained in the petition a copy of the notice of motion by first-class mail within five days after receipt of the notice of motion.

(g) The employer shall continue to withhold and forward support as ordered by the court until served with notice that the motion to quash under this subsection has been granted.

(h) The due date of support payments under this subsection shall be the date specifically stated in the order of support or if no date is stated in the support order, then it shall be the last day of the month in which the support payment is to be paid.

(i) For purposes of this subsection, arrearages of payment shall be computed on the basis of the payments owed and unpaid on the date that the parent ordered to pay support has been given notice of the order of assignment. The fact that the parent ordered to pay support may have subsequently paid the arrearages shall not relieve the court of its duty under this subsection to order the assignment.

(j) Upon petition by the parent ordered to pay support, the court shall terminate an order of assignment entered under this subsection upon proof of full payment pursuant to the wage assignment for the appropriate period of time, as follows:

(i) An assignment under this subsection pursuant to an initial petition shall continue until support payments are current.

(ii) An assignment under this subsection pursuant to a second petition filed within twenty-four months shall continue for twelve months.

(iii) An assignment under this subsection pursuant to a third or subsequent petition filed within forty-eight months shall continue for eighteen months.

Upon petition by the parent ordered to pay support, the court shall terminate an order of assignment entered under this subsection if the employer or clerk of the court has been unable to deliver payments under the assignment for a period of three months due to the failure of the person to whom support has been ordered to be paid to notify the employer or clerk of the court of a change of address.

(3) The court shall prescribe forms for the orders for wage assignment required or authorized by this section. The employer may deduct from the salary or wages of the employee the sum of one dollar for each payment made pursuant to the order. Any assignment made pursuant to court order shall have priority as against any attachment, execution, or other assignment, unless otherwise ordered by the court.

(4) The employer shall cooperate with and provide relevant employment information to the district attorney for the purpose of enforcing the child support obligation.

(5) An employer shall not use any assignment authorized by this section as grounds for the dismissal of the employee.

(6) As used in this section "employer" includes the United States government and any state agency or political subdivision.

(7) On declaration or affidavit of the parent to whom support has been ordered to be paid to the court that:

(a) The parent ordered to make support payments is in default in the payment in the amount specified in subsection (1) of this section; and

(b) The whereabouts of the defaulting parent or the identity of the employer are unknown to the parent to whom support has been ordered to be paid, the assistant attorney general or prosecuting attorney shall notify the court of the last known address of the absent parent and the name and address of the absent parent's last known employer. The court shall then order the defaulting parent to make support payments under subsection (2) of this section.

(8) Nothing in this section shall limit the authority of the prosecuting attorney or assistant attorney general to utilize any and all civil and criminal remedies to enforce child support obligations regardless of whether or not the custodial parent receives welfare moneys.

NEW SECTION. Sec. 14. There is added to chapter 9A.64 RCW a new section to read as follows:

(1) A person is guilty of custodial interference if, knowing that he or she has no legal right to do so, he or she takes from, entices from, or wilfully fails to return to lawful custody any incompetent person or other person entrusted by authority of law to the custody of another person or institution.

(2) Custody shall include "residential care" where the incompetent person or other person entrusted by authority of law to the custody of another person or institution is the subject of a joint custody order or decree.

(3) Custodial interference is a class C felony.

NEW SECTION. Sec. 15. There is added to chapter 9A.64 RCW a new section to read as follows:

(1) A person is guilty of visitational interference if, as a custodial parent, he or she fails to allow the noncustodial parent visitation rights of any minor children of their marriage as set forth in the final or existing decree or any order relating to the visitation of the minor children.

(2) Visitational interference is a gross misdemeanor.

NEW SECTION. Sec. 16. The following acts or parts of acts are each repealed:

(1) Section 13, chapter 157, Laws of 1973 1st ex. sess. and RCW 26.09.130;

(2) Section 19, chapter 157, Laws of 1973 1st ex. sess. and RCW 26.09.190;

(3) Section 25, chapter 157, Laws of 1973 1st ex. sess. and RCW 26.09.250; and

(4) Section 26, chapter 157, Laws of 1973 1st ex. sess. and RCW 26.09.260.

NEW SECTION. Sec. 17. Sections 1 through 3 and 6 through 13 of this act are each added to chapter 26.09 RCW.

NEW SECTION. Sec. 18. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 19. This act shall take effect January 1, 1986.