AN ACT Relating to parents' compliance with residential provisions for a child; amending RCW 9A.40.070, 26.09.260, and 9A.40.080; adding new sections to chapter 26.09 RCW; and prescribing penalties.

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

NEW SECTION. Sec. 1. A new section is added to chapter 26.09 RCW to read as follows:

(1) A motion may be filed without notice to initiate a contempt action to coerce a parent to comply with an order establishing residential provisions for a child. If the court finds there is reasonable cause to believe the parent has not complied with the order, the court may issue an order to show cause. The order to show cause shall require the parent to appear at a certain time and place and show cause why the relief requested should not be granted.

(2) A copy of the motion and order to show cause shall be personally served on the parent. The order to show cause shall include a warning that an arrest warrant may be issued for the failure to appear. The court may issue a bench warrant for the arrest of the parent, if the parent fails to appear on the return date provided in the order.

(3) If, based on all the facts and circumstances, the court finds after hearing that the parent has not complied with the order establishing residential provisions, the court may find the parent in contempt of court. Upon a finding of contempt, the court shall order the noncomplying parent to provide the moving party additional time with the child. The additional time shall be equal to the time missed with the child, due to the parent's noncompliance. The court may also order:

(a) The parent to be imprisoned in the county jail, if the parent is presently able to comply with the provisions of the court-ordered parenting plan and is presently unwilling to comply. The parent may be imprisoned until he or she agrees to comply with the order, but in no event for more than one hundred eighty days;

(b) The parent to pay, to the moving party all court costs and reasonable attorneys' fees incurred as a result of the noncompliance, and any reasonable expenses incurred in locating or returning a child; and

(4) On the second failure within five years to comply with a residential provision of a court-ordered parenting plan, the county prosecuting attorney shall institute a criminal contempt proceeding against the noncomplying parent. On a finding of contempt under this subsection, the court shall order:

(a) The noncomplying parent to provide the other parent or party additional time with the child. The additional time shall be equal to the time missed with the child, due to the parent's noncompliance; and

(b) The parent to be imprisoned for not less than five days nor more than one hundred eighty days. The jail sentence shall not be suspended or deferred.

In addition, the court may order the noncomplying parent to pay to the other parent or party, all court costs and reasonable attorneys' fees incurred as a result of the noncompliance, and any reasonable expenses incurred in locating or returning a child.

(5) Any noncompliance with the residential provision of a court-ordered parenting plan, which occurs after a finding of contempt has been entered under subsection (4) of this section, shall be charged by the county prosecuting attorney under RCW 9A.40.070(2).

(6) The parent shall be deemed to have the present ability to comply with the order establishing residential provisions unless he or she establishes otherwise by a preponderance of the evidence. The parent shall establish a reasonable excuse for failure to comply with the residential provision of a court-ordered parenting plan by a preponderance of the evidence.

(7) Any monetary award ordered under this section may be enforced, by the party to whom it is awarded, in the same manner as a civil judgment.

(8) This section authorizes the exercise of the court's coercive and punitive contempt power and is in addition to any other contempt power the court may possess.

Sec. 2. 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. This subsection shall not apply to a parent's noncompliance with a court-ordered parenting plan.

(2) A parent of a child is guilty of custodial interference in the second degree if: (a) The parent takes, entices, retains, detains, or conceals the child, with the intent to deny access, from any person having the lawful right to time with the child pursuant to a court-ordered parenting plan, and (b) the parent has not complied with the residential custody provision of a court-ordered parenting plan after a finding of contempt under section 1(4) of this act.

(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. 3. Section 26, chapter 157, Laws of 1973 1st ex. sess. as amended by section 19, chapter 460, Laws of 1987 and RCW 26.09.260 are each amended to read as follows:

(1) The court shall not modify a prior custody decree or a parenting plan unless it finds, upon the basis of facts that have arisen since the prior decree or plan or that were unknown to the court at the time of the prior decree or plan, that a substantial change has occurred in the circumstances of the child or the parents and that the modification is necessary to serve the best interests of the child. In applying these standards, the court shall retain the residential schedule established by the decree or parenting plan unless:

(a) The parents agree to the modification;

(b) The child has been integrated into the family of the petitioner with the consent of the other parent in substantial deviation from the parenting plan; ((or))

(c) The child's present environment is detrimental to the child's physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child; or

(d) The child's contact with his or her parent has been disrupted by the other parent's noncompliance with the provisions of the parenting plan. Evidence of a conviction under section 2(2) of this act shall constitute a substantial change of circumstances for the purposes of this section.

(2) If the court finds that a motion to modify a prior decree or parenting plan has been brought in bad faith, the court shall assess the attorney's fees and court costs of the nonmoving parent against the moving party.

NEW SECTION. Sec. 4. A new section is added to chapter 26.09 RCW to read as follows:

All court orders containing parenting plan provisions or orders of contempt, entered pursuant to section 1 of this act, shall include the following language:

WARNING: VIOLATION OF THE RESIDENTIAL PROVISIONS OF THIS ORDER WITH ACTUAL KNOWLEDGE OF ITS TERMS IS PUNISHABLE BY CIVIL CONTEMPT, MAY BE PUNISHABLE BY CRIMINAL CONTEMPT, AND MAY BE A CRIMINAL OFFENSE UNDER RCW 9A.40.070(2). VIOLATION OF THIS ORDER MAY SUBJECT A VIOLATOR TO ARREST.

Sec. 5. 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.

(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, 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; or

(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. 6. 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.