BILL REQ. #:  S-0923.2 

Read first time 02/03/2003.   Referred to Committee on Children & Family Services & Corrections.

     AN ACT Relating to changing how the court determines the allocation of residential time between parents; amending RCW 26.09.187; and creating a new section.

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

NEW SECTION.  Sec. 1   (1) The legislature makes the following findings:
     (a) The 1987 legislature approved a new parenting act based on a forty-page intent section titled "Replacing the Concept of Child Custody - Commentary and Text," and this positive legislative action was based on:
     (i) A desire to update family law practices to be more reflective of our current social practices and desires involving each parent with their children of divorce;
     (ii) A belief that use of statutory terms "child custody" and "visitation" was outdated as children were not currently seen as visitors to their second parents, and general practices too often reflected a "win-lose" adversarial process, and in too many cases the children were seemingly also divorced from the second parent;
     (iii) Social science research had determined that in most cases, but certainly not all, it was in the best interest of the children, emotionally, psychologically, physically, and financially, to have an active relationship with both parents, although legal system maintained the old practices of limiting the children to "every other weekend" with the second parent in nearly eighty percent of the cases;
     (iv) There was a new belief that family law had to move away from a notion of parents fighting to reestablish parental rights in a divorce, a new reality needed to be instituted that placed a "duty" on parents to remain involved in their children's lives, and parenting plan documents were created to reflect a more accurate distribution of parenting responsibilities based on actual parenting practices rather than the previous "winner take all" approach that included disproportionate parenting responsibilities and disregarded the importance of parental involvement of the second parent; and
     (v) Courthouse practices were previously based on limited knowledge of the social research relating to children of divorce and it was obvious that "every other weekend" was an easy court order to write based on the previous reality that most primary working parents were employed for five-day work weeks. It was necessary to create parenting plan documents that required detailed specific residential schedules to move away from almost automatic orders placing children with the second parent on an every other weekend schedule;
     (b) The Washington supreme court in 1999 researched permanent parenting plan documents and found an unjustifiable number of decisions where the second parent was still arbitrarily limited to every-other-weekend residential schedules with their children; and
     (c) The various institutions with an interest in family law have failed to develop better processes to provide for a better and more effective, and less adversarial, distribution of parenting time between mothers and fathers to share the upbringing of their children of divorce.
     (2) The legislature intends to give direction to our judicial system to ensure better outcomes for children of divorce and assure the continuing involvement of each parent.

Sec. 2   RCW 26.09.187 and 1989 c 375 s 10 are each amended to read as follows:
     (1) DISPUTE RESOLUTION PROCESS. The court shall not order a dispute resolution process, except court action, when it finds that any limiting factor under RCW 26.09.191 applies, or when it finds that either parent is unable to afford the cost of the proposed dispute resolution process. If a dispute resolution process is not precluded or limited, then in designating such a process the court shall consider all relevant factors, including:
     (a) Differences between the parents that would substantially inhibit their effective participation in any designated process;
     (b) The parents' wishes or agreements and, if the parents have entered into agreements, whether the agreements were made knowingly and voluntarily; and
     (c) Differences in the parents' financial circumstances that may affect their ability to participate fully in a given dispute resolution process.
     (2) ALLOCATION OF DECISION-MAKING AUTHORITY.
     (a) AGREEMENTS BETWEEN THE PARTIES. The court shall approve agreements of the parties allocating decision-making authority, or specifying rules in the areas listed in RCW 26.09.184(4)(a), when it finds that:
     (i) The agreement is consistent with any limitations on a parent's decision-making authority mandated by RCW 26.09.191; and
     (ii) The agreement is knowing and voluntary.
     (b) SOLE DECISION-MAKING AUTHORITY. The court shall order sole decision-making to one parent when it finds that:
     (i) A limitation on the other parent's decision-making authority is mandated by RCW 26.09.191;
     (ii) Both parents are opposed to mutual decision making;
     (iii) One parent is opposed to mutual decision making, and such opposition is reasonable based on the criteria in (c) of this subsection((;)).
     (c) MUTUAL DECISION-MAKING AUTHORITY. Except as provided in (a) and (b) of this subsection, the court shall consider the following criteria in allocating decision-making authority:
     (i) The existence of a limitation under RCW 26.09.191;
     (ii) The history of participation of each parent in decision making in each of the areas in RCW 26.09.184(4)(a);
     (iii) Whether the parents have a demonstrated ability and desire to cooperate with one another in decision making in each of the areas in RCW 26.09.184(4)(a); and
     (iv) The parents' geographic proximity to one another, to the extent that it affects their ability to make timely mutual decisions.
     (3) RESIDENTIAL PROVISIONS.
     (a) The court shall make residential provisions for each child which encourage each parent to maintain a loving, stable, and nurturing relationship with the child, consistent with the child's developmental level and the family's social and economic circumstances. The child's residential schedule shall be consistent with RCW 26.09.191. There is a presumption that the child's residential schedule shall include at least one-third of a year in which the child resides with or is under the actual, direct, day-to-day care and supervision of each of the parents.
     Where the limitations of RCW 26.09.191 are not dispositive of the child's residential schedule, the court shall consider the following factors:
     (i) The relative strength, nature, and stability of the child's relationship with each parent((, including));
     (ii) Whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
     (((ii))) (iii) The agreements of the parties, provided they were entered into knowingly and voluntarily;
     (((iii))) (iv) Each parent's past and potential for future performance of parenting functions;
     (((iv))) (v) The emotional needs and developmental level of the child;
     (((v))) (vi) The child's relationship with siblings and with other significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities;
     (((vi))) (vii) The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and
     (((vii))) (viii) Each parent's employment schedule, and shall make accommodations consistent with those schedules.
     Factor (i) shall be given the greatest weight.
     (b) The court may order that a child frequently alternate his or her residence between the households of the parents for brief and substantially equal intervals of time only if the court finds the following:
     (i) No limitation exists under RCW 26.09.191;
     (ii)(A) The parties have agreed to such provisions and the agreement was knowingly and voluntarily entered into; or
     (B) The parties have a satisfactory history of cooperation and shared performance of parenting functions; the parties are available to each other, especially in geographic proximity, to the extent necessary to ensure their ability to share performance of the parenting functions; and
     (iii) The provisions are in the best interests of the child.