AN ACT Relating to custodial interference; amending RCW 9A.40.070 and 9A.40.080; creating new sections; and prescribing penalties.

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

Sec. 1. Section 2, chapter 95, Laws of 1984 and RCW 9A.40.070 are each amended to read as follows:

(1) A relative of a person is guilty of custodial interference in the second degree if, with the intent to deny access to such person by a parent, guardian, institution, agency, or other person having a lawful right to physical custody of such person, the relative takes, entices, retains, detains, or conceals the person from a parent, guardian, institution, agency, or other person having a lawful right to physical custody of such person.

(2) A relative of a minor child is guilty of custodial interference in the second degree if:

(a) The relative takes, entices, retains, detains, or conceals the child with intent to deprive access to the child by a parent, guardian, or other person who is not the legal custodian but who has the right of access to the child pursuant to a court-ordered residential schedule in a parenting plan or a court-ordered visitation schedule; and

(b) The relative violated a court order that specifies the following:

(i) The defendant has, without good cause, intentionally denied or prevented access to the child in violation of a previous court order; and

(ii) The specific conditions of access in the order are necessary to ensure that the defendant will allow the parent, guardian, or other person access to the child; and

(iii) The order contains the following language:

WARNING: VIOLATION OF THE PROVISIONS OF THIS ORDER WITH ACTUAL KNOWLEDGE OF ITS TERMS IS A CRIMINAL OFFENSE UNDER RCW 9A.40.070, MAY SUBJECT A VIOLATOR TO ARREST, AND IS ALSO PUNISHABLE BY CIVIL CONTEMPT.

(3) The first conviction of custodial interference in the second degree is a gross misdemeanor. The second or subsequent conviction of custodial interference in the second degree is a class C felony.

Sec. 2. Section 3, chapter 95, Laws of 1984 and RCW 9A.40.080 are each amended to read as follows:

(1) Any reasonable expenses incurred in locating or returning a child or incompetent person shall be assessed against a defendant convicted under RCW 9A.40.060 or 9A.40.070. In addition to any fine that may be imposed by the court, the court shall also recover court costs of one hundred dollars from every person convicted of custodial interference in the second degree.

(2) In any prosecution of custodial interference in the first or second degree, it is a complete defense, if established by the defendant by a preponderance of the evidence, that:

(a) The defendant's purpose was to protect the child, incompetent person, or himself or herself from imminent physical harm, ((~~and~~)) that the belief in the existence of the imminent physical harm was reasonable, and that the defendant sought the assistance of the police, sheriff's office, protective agencies, or the court of any state before committing the acts giving rise to the charges or within a reasonable time thereafter.

(b) The complainant had, prior to the defendant committing the acts giving rise to the crime, repeatedly or for a protracted period of time, failed to exercise his or her rights to physical custody or access to the child under a court-ordered parenting plan or order granting visitation rights, provided that such failure was not the direct result of the defendant's denial of access to such person;

(d) The offender failed to return the child due to reasons directly related to the welfare of the child, and allowed access to the child in accordance with the court order within a reasonable period of time.

(3) Consent of a child less than sixteen years of age or of an incompetent person does not constitute a defense to an action under RCW 9A.40.060 or 9A.40.070.

NEW SECTION. Sec. 3. Nothing contained in this act shall be construed to limit the court's contempt power.

NEW SECTION. Sec. 4. 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. 5. Every law enforcement officer investigating an alleged incident of child abduction shall make a written police report of any bona fide allegation and the disposition of such investigation.