HOUSE BILL REPORT

HB 48

BYRepresentatives Appelwick, Belcher, Wang, Wineberry, P. King, Locke, Todd, K. Wilson, Leonard and Brekke

Revising provisions relating to parenting.

House Committe on Judiciary

Majority Report:     The substitute bill be substituted therefor and the substitute bill do pass.  (17)

     Signed by Representatives Armstrong, Chair; Crane, Vice Chair; Appelwick, Brough, Hargrove, Heavey, P. King, Lewis, Locke, Moyer, Niemi, Padden, Patrick, Schmidt, Scott, Wang and Wineberry.

House Staff:Harry Reinert (786-7110)

AS REPORTED BY COMMITTEE ON JUDICIARY MARCH 6, 1987

BACKGROUND:

Determining who will have the legal custody of a child can be an issue in several contexts.  One or both parents of a child may seek custody in a dissolution, legal separation, or action to declare a marriage invalid.  A parent may also seek custody outside the context of the break-up of a marriage.  Non-parents may seek custody when the child is not in the custody of a parent or when the parents are alleged not to be suitable custodians.

In determining who should have custody, the court must do so in accordance with the "best interest of the child."  The court is to consider five factors in determining the best interest:  (1) the wishes of the parents; (2) depending on the child's age, the wishes of the child; (3) the relationship of the child with the parents and others; (4) the child's adjustment to his or her home, school and community; (5) the physical and mental health of all individuals involved.

Once awarded, custody can be modified only under certain conditions.  Those conditions include maintaining the best interest of the child and the need to respond to some change in the child's or the custodian's circumstances.  In addition, the current custodian must agree to the change, or the child must already have become integrated into the family of the party seeking the change, or it must be shown that there is danger of harm to the child the the current custodian that outweighs the harm to the child of changing custodians.

A parent who does not get custody of a child is entitled to reasonable visitation.  Others may also be awarded visitation.  A parent may be denied visitation only if visitation would be dangerous to the child's health.

In setting child support, the court is to consider "all relevant factors" and then to order payment of a "reasonable or necessary" amount.

It is a crime for the relative of a minor or an incompetent person to deny access to the minor or incompetent by any other person or agency which has a legal right to physical custody.  if the denial of access is attempted to be permanent or for harassment, the crime is a class C felony.  If the denial of access does not meet these criteria, it is a gross misdemeanor on the first offense and a class C felony on subsequent offenses.

SUMMARY:

SUBSTITUTE BILL:  The dissolution of marriage act is amended to remove references to "custody" and incorporate a new set of procedures relating to parenting responsibilities.  The legislative policy is declared to be that parenting arrangements as a result of dissolution of marriage proceedings should be designed maintain a child's emotional growth, health, and stability and physical care.  The best interests of the child are declared to usually be served by maintaining the existing interactions between the parents and the child.

As part of a proceeding for dissolution of marriage, separation, or declaration of invalidity, each party to the proceeding is required to present proposed temporary and permanent parenting plans to the court.  A proposed temporary parenting plan is filed if a parent seeks a temporary order regarding parenting.  The proposed temporary plan should include information concerning each parent's responsibilities of the parenting function, their work and child-care schedules for the preceding 12 months and currently, and any circumstances which present a substantial risk for the child.  The parties may present a joint parenting plan or may each file separate plans.  If the parties do not agree on a temporary plan, the court shall hold a hearing on the plans submitted and enter an order adopting a plan.  The plan which is adopted should be one that is in the best interests of the child.  The court may consider which parent has taken greater responsibility for the last twelve months and which plan will cause the least disruption to the child's emotional stability.

Prior to entry of the decree of dissolution, separation, or declaration of invalidity, the parties are required to submit proposed permanent parenting plans to the court.  The permanent parenting plan must include provision for resolution of future disputes, allocation of decision-making authority, the child's residential arrangements, and financial support for the child.  If the parties do not agree on a permanent parenting plan, and mandatory settlement conferences are required in the superior court of the county, they are required to attend a mandatory settlement conference presided over by a judge or court commissioner.  A party who fails to participate in the settlement conference in good faith may be held in contempt of court.

The dispute resolution process may include counseling, mediation, or arbitration by either an individual or agency or by the court.  The court may not order a dispute resolution process other than judicial action if there has been wilful abandonment, physical or sexual or emotional abuse of the child, or a history of domestic violence or one act of felonious domestic violence of if a parent would be unable to afford the dispute resolution process.

The court shall approve a decision making process agreed to by the parties.  If the parties do not come to an agreement, the court shall order either sole or mutual decision making authority.  The court shall order sole decision making authority if both parties are opposed to mutual decision making, on party has reasonable grounds for opposing mutual decision making, or if there has been a wilful abandonment, physical, sexual or emotional abuse of the child, or a history of domestic violence or one act of felonious domestic violence.  In considering whether mutual decision making should be ordered, the court shall consider the history of the participation of the parents in decision making, whether the parents have demonstrated an ability and desire to cooperate in decision making, and the parents' geographic proximity.

The residential provisions ordered by the court shall be designed to encourage for each parent a loving, stable, and nurturing relationship with a child.  The most significant factor in determining residential placement shall be the relative strength of the child's relationship with each parent.  The court may also take into consideration any agreement entered into by the parties.  In addition, the court may consider each parent's performance of parenting functions, the child's relationship with siblings, the child's emotional needs and developmental level, and the child's wishes.  The court may order a child to alternate households only if there has been no past history of abuse or violence, and either the parties agree to such an arrangement or the parties have shown an ability to cooperate, the parties are in close enough physical proximity, and one parent is designated the residential parent.  The arrangement must also be in the best interests of the child.

The court may limit a parent's residential time with the child if there has been a wilful abandonment, physical, sexual, or emotional abuse of the child, or a history of acts of domestic violence or one act of felonious domestic violence.  If there has been past domestic violence, the court need not limit a parent's residential time if the court expressly finds that the conduct is not likely to reoccur or if the acts had no impact on the child.

An attempt by a parent in negotiation or performance of the parenting plan to condition one aspect of the parenting plan on another may be deemed to be in bad faith.  The court may punish bad faith by a party by a punitive award or civil or criminal contempt and may consider the conduct in awarding attorney's fees.

A new chapter is established to provide procedures for third party custody suits when a person other than a parent seeks custody of a child if the child is not in a parent's physical custody or if the person alleges that neither parent is a suitable custodian.  The procedures mirror the current procedures for custody actions in dissolution of marriage proceedings.  If the court grants the petition, it may order the parents to pay support and health insurance.  The court has the power to enforce the custody decree and enter a temporary injunction.  Parents who are not given custody have a right to reasonable visitation if it would not endanger the child.  The custodian is given the authority to determine the child's upbringing.  The court may not modify the custody order except upon a showing of a substantial change in circumstances.

A relative is guilty of custodial interference in the second degree if, with an intent to deny access to a person, he or she takes or conceals the person from a parent, guardian, institution, or agency for more than 72 hours.

In an action to determine paternity under the uniform parentage act, the court shall make provision for the residence of the child in the same manner as provided for in the parenting plan in a dissolution of marriage proceeding.

SUBSTITUTE BILL COMPARED TO ORIGINAL:  The original bill required that every petition for dissolution included a proposed temporary parent plan.  The substitute requires the temporary plan only if a party to the proceeding requests a temporary order.  The original bill also mandated a settlement conference if the parties could not agree on a plan.  The original bill makes this settlement conference subject to local court rule.  The substitute deletes these provisions leaving current law alone.  The original bill establishes an order of criteria to be considered in determining custody.  The substitute puts all on an equal footing, except for the relationship of each parent with the child which is most important.  Finally, the substitute creates a new chapter which relates solely to third party custody actions.  This was not included in the original bill.

Fiscal Note:    Not Requested.

House Committee ‑ Testified For:     Steve Gaddis, King County Superior Court Commissioner; Kim Prochnoeu, Evergreen Legal Services.

House Committee - Testified Against: Tom Wing, United Fathers of America; Cindy Muffin, Washington Coalition of Family Rights; Robert Michnick, Washington Coalition of Family Rights.

House Committee - Testimony For:     This bill will establish a uniform set of procedures to make sure the parties and the court think through custodial and residential arrangements for children of marriages which are dissolved.

House Committee - Testimony Against: This bill does nothing to improve the current bias of the judiciary against fathers.  The bill should include specific provisions relating to time spent with each parent to get around this bias.