SENATE BILL REPORT

SSB 6009

BYSenate Committee on Law & Justice (originally sponsored by Senators Owen, Nelson, Warnke, Moore and Smith)

Pertaining to custodial interference.

Senate Committee on Law & Justice

Senate Hearing Date(s):February 22, 1989; February 28, 1989; March 1, 1989

Majority Report:  That Substitute Senate Bill No. 6009 be substituted therefor, and the substitute bill do pass.

      Signed by Senators Pullen, Chairman; McCaslin, Vice Chairman; Hayner, Madsen, Nelson, Newhouse, Thorsness.

Senate Staff:Richard Rodger (786-7461)

                  April 17, 1989

House Committe on Judiciary

AS PASSED SENATE, MARCH 13, 1989

BACKGROUND:

Under the dissolution of marriage act, the court must approve a parenting plan which includes residential provisions for children of the marriage.

Courts have inherent and statutory authority to enforce their orders.  This authority may be used to coerce a person into compliance with the court's order or to punish a person for failure to comply with the order.  Coercive, or civil, contempt must be designed to obtain compliance only.  As soon as the person complies with the order, the court's sanction must be lifted.  Punitive, or criminal, contempt is not subject to this limitation.

The requirements of the crime of custodial interference in the second degree are met when a relative of a person takes, entices, retains, detains or conceals that person with the intent to deny access to such person by a parent, guardian, institution, agency or other person who has a lawful right to physical custody.

SUMMARY:

A motion may be filed in superior court to enforce the residential provisions contained in a court order.  If the court finds reasonable cause to believe that a parent is not complying with its order, it may schedule a show-cause hearing regarding why the parent is not in compliance.  If the court determines at the hearing that the parent has not complied with the residential provisions, the court may find the parent in contempt. 

Upon a finding of contempt the court shall order the parent to provide additional time with the child to the person filing the motion.  The court may also award court costs, attorney's fees, and reasonable expenses incurred in locating or returning the child.

If the parent is able but unwilling to comply with the residential provisions, the court may order the parent imprisoned until the parent agrees to comply.

On a second failure to comply with the residential provision within five years, the county prosecuting attorney will institute criminal contempt proceedings against the noncomplying parent.  Upon a finding of contempt, the court shall imprison the parent for a minimum of five days.

Any noncompliance with the residential provision occurring after a finding of criminal contempt is charged as custodial interference in the second degree.

A parent's conviction of custodial interference in the second degree shall constitute a substantial change of circumstances for the purposes of modifying a parenting plan residential provision.

A warning provision is added to court orders containing parenting plans.  Additional defenses are added to the criminal offense of custodial interference.

Appropriation:    none

Revenue:    none

Fiscal Note:      requested February 21, 1989

Senate Committee - Testified: Senator Owen, prime sponsor (pro); Kim Prochnau; Evergreen Legal Services (con)

HOUSE AMENDMENTS:

A parent who is found in contempt is required to pay a civil penalty of not less than $100.  On a second finding of contempt within three years, the penalty shall not be less than $250 and the moving party is given double the time with the child as missed due to the other parent's actions.  The sections of the statute providing for criminal contempt proceedings are stricken.

If the court finds the motion for contempt was brought without a reasonable basis, the court shall require the moving party to pay all costs, reasonable attorney's fees incurred, and a civil penalty of not less than $100.

A parent may be charged with custodial interference in the second degree if they fail to comply with the residential provisions after the second finding of contempt.  The parent may also be charged with custodial interference without a prior finding of contempt.

In deciding motions to modify the residential schedule, the court shall retain the current schedule, unless the nonmoving party has been found in contempt twice within three years for failing to comply with schedule.