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, with the intent to deny access to the minor child by a parent, guardian, or other person not designated as the child's legal custodian but having the right of access to the child pursuant to a residential schedule in a parenting plan ordered by the court or having court-ordered visitation rights with such minor child, the relative takes, entices, detains, or conceals the child during a period in which that parent, guardian, or other person was scheduled to have access to such child under a court-ordered parenting plan or visitation schedule, and, a court order specifying the conditions of access has been previously entered and such order contains a finding that the defendant has, without good cause, intentionally denied or prevented access to such child in violation of a court order, and, that it is necessary in order to ensure continued access to such child by a parent or guardian that the defendant be required to allow access to such child by a parent or guardian under the specific conditions set forth in the order.

Such court order must contain 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 collect an assessment penalty of one hundred dollars from every person convicted of custodial interference in the second degree. Notwithstanding any other provision of law regarding the distribution of penalty assessments, the court shall remit the additional penalty assessment to the treasury of the county or municipality in which the offense occurred.

(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.