(1) The permanent parenting plan shall not
require mutual decision-making or designation of a dispute
resolution process other than court action if it is found that a
parent has engaged in any of the following conduct: (a) Willful
abandonment that continues for an extended period of time or
substantial refusal to perform parenting functions; (b) physical,
sexual, or a pattern of emotional abuse of a child; or (c) a
history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes
grievous bodily harm or the fear of such harm.
(2)(a) The parent's residential time with the child shall be
limited if it is found that the parent has engaged in any of the
following conduct: (i) Willful abandonment that continues for an
extended period of time or substantial refusal to perform
parenting functions; (ii) physical, sexual, or a pattern of
emotional abuse of a child; (iii) a history of acts of domestic
violence as defined in RCW 26.50.010(1) or an assault or sexual
assault which causes grievous bodily harm or the fear of such
harm; or (iv) the parent has been convicted as an adult of a sex
offense under:
(A) RCW 9A.44.076 if, because of the difference in age
between the offender and the victim, no rebuttable presumption
exists under (d) of this subsection;
(B) RCW 9A.44.079 if, because of the difference in age
between the offender and the victim, no rebuttable presumption
exists under (d) of this subsection;
(C) RCW 9A.44.086 if, because of the difference in age
between the offender and the victim, no rebuttable presumption
exists under (d) of this subsection;
(D) RCW 9A.44.089;
(E) RCW 9A.44.093;
(F) RCW 9A.44.096;
(G) RCW 9A.64.020 (1) or (2) if, because of the difference
in age between the offender and the victim, no rebuttable
presumption exists under (d) of this subsection;
(H) Chapter 9.68A RCW;
(I) Any predecessor or antecedent statute for the offenses
listed in (a)(iv)(A) through (H) of this subsection;
(J) Any statute from any other jurisdiction that describes
an offense analogous to the offenses listed in (a)(iv)(A) through
(H) of this subsection.
This subsection (2)(a) shall not apply when (c) or (d) of
this subsection applies.
(b) The parent's residential time with the child shall be
limited if it is found that the parent resides with a person who
has engaged in any of the following conduct: (i) Physical,
sexual, or a pattern of emotional abuse of a child; (ii) a
history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault that causes grievous
bodily harm or the fear of such harm; or (iii) the person has
been convicted as an adult or as a juvenile has been adjudicated
of a sex offense under:
(A) RCW 9A.44.076 if, because of the difference in age
between the offender and the victim, no rebuttable presumption
exists under (e) of this subsection;
(B) RCW 9A.44.079 if, because of the difference in age
between the offender and the victim, no rebuttable presumption
exists under (e) of this subsection;
(C) RCW 9A.44.086 if, because of the difference in age
between the offender and the victim, no rebuttable presumption
exists under (e) of this subsection;
(D) RCW 9A.44.089;
(E) RCW 9A.44.093;
(F) RCW 9A.44.096;
(G) RCW 9A.64.020 (1) or (2) if, because of the difference
in age between the offender and the victim, no rebuttable
presumption exists under (e) of this subsection;
(H) Chapter 9.68A RCW;
(I) Any predecessor or antecedent statute for the offenses
listed in (b)(iii)(A) through (H) of this subsection;
(J) Any statute from any other jurisdiction that describes
an offense analogous to the offenses listed in (b)(iii)(A)
through (H) of this subsection.
This subsection (2)(b) shall not apply when (c) or (e) of
this subsection applies.
(c) If a parent has been found to be a sexual predator under
chapter 71.09 RCW or under an analogous statute of any other
jurisdiction, the court shall restrain the parent from contact
with a child that would otherwise be allowed under this chapter.
If a parent resides with an adult or a juvenile who has been
found to be a sexual predator under chapter 71.09 RCW or under an
analogous statute of any other jurisdiction, the court shall
restrain the parent from contact with the parent's child except
contact that occurs outside that person's presence.
(d) There is a rebuttable presumption that a parent who has
been convicted as an adult of a sex offense listed in (d)(i)
through (ix) of this subsection poses a present danger to a
child. Unless the parent rebuts this presumption, the court
shall restrain the parent from contact with a child that would
otherwise be allowed under this chapter:
(i) RCW 9A.64.020 (1) or (2), provided that the person
convicted was at least five years older than the other person;
(ii) RCW 9A.44.073;
(iii) RCW 9A.44.076, provided that the person convicted was
at least eight years older than the victim;
(iv) RCW 9A.44.079, provided that the person convicted was
at least eight years older than the victim;
(v) RCW 9A.44.083;
(vi) RCW 9A.44.086, provided that the person convicted was
at least eight years older than the victim;
(vii) RCW 9A.44.100;
(viii) Any predecessor or antecedent statute for the
offenses listed in (d)(i) through (vii) of this subsection;
(ix) Any statute from any other jurisdiction that describes
an offense analogous to the offenses listed in (d)(i) through
(vii) of this subsection.
(e) There is a rebuttable presumption that a parent who
resides with a person who, as an adult, has been convicted, or as
a juvenile has been adjudicated, of the sex offenses listed in
(e)(i) through (ix) of this subsection places a child at risk of
abuse or harm when that parent exercises residential time in the
presence of the convicted or adjudicated person. Unless the
parent rebuts the presumption, the court shall restrain the
parent from contact with the parent's child except for contact
that occurs outside of the convicted or adjudicated person's
presence:
(i) RCW 9A.64.020 (1) or (2), provided that the person
convicted was at least five years older than the other person;
(ii) RCW 9A.44.073;
(iii) RCW 9A.44.076, provided that the person convicted was
at least eight years older than the victim;
(iv) RCW 9A.44.079, provided that the person convicted was
at least eight years older than the victim;
(v) RCW 9A.44.083;
(vi) RCW 9A.44.086, provided that the person convicted was
at least eight years older than the victim;
(vii) RCW 9A.44.100;
(viii) Any predecessor or antecedent statute for the
offenses listed in (e)(i) through (vii) of this subsection;
(ix) Any statute from any other jurisdiction that describes
an offense analogous to the offenses listed in (e)(i) through
(vii) of this subsection.
(f) The presumption established in (d) of this subsection
may be rebutted only after a written finding that:
(i) If the child was not the victim of the sex offense
committed by the parent requesting residential time, (A) contact
between the child and the offending parent is appropriate and
poses minimal risk to the child, and (B) the offending parent has
successfully engaged in treatment for sex offenders or is engaged
in and making progress in such treatment, if any was ordered by a
court, and the treatment provider believes such contact is
appropriate and poses minimal risk to the child; or
(ii) If the child was the victim of the sex offense
committed by the parent requesting residential time, (A) contact
between the child and the offending parent is appropriate and
poses minimal risk to the child, (B) if the child is in or has
been in therapy for victims of sexual abuse, the child's
counselor believes such contact between the child and the
offending parent is in the child's best interest, and (C) the
offending parent has successfully engaged in treatment for sex
offenders or is engaged in and making progress in such treatment,
if any was ordered by a court, and the treatment provider
believes such contact is appropriate and poses minimal risk to
the child.
(g) The presumption established in (e) of this subsection
may be rebutted only after a written finding that:
(i) If the child was not the victim of the sex offense
committed by the person who is residing with the parent
requesting residential time, (A) contact between the child and
the parent residing with the convicted or adjudicated person is
appropriate and that parent is able to protect the child in the
presence of the convicted or adjudicated person, and (B) the
convicted or adjudicated person has successfully engaged in
treatment for sex offenders or is engaged in and making progress
in such treatment, if any was ordered by a court, and the
treatment provider believes such contact is appropriate and poses
minimal risk to the child; or
(ii) If the child was the victim of the sex offense
committed by the person who is residing with the parent
requesting residential time, (A) contact between the child and
the parent in the presence of the convicted or adjudicated person
is appropriate and poses minimal risk to the child, (B) if the
child is in or has been in therapy for victims of sexual abuse,
the child's counselor believes such contact between the child and
the parent residing with the convicted or adjudicated person in
the presence of the convicted or adjudicated person is in the
child's best interest, and (C) the convicted or adjudicated
person has successfully engaged in treatment for sex offenders or
is engaged in and making progress in such treatment, if any was
ordered by a court, and the treatment provider believes contact
between the parent and child in the presence of the convicted or
adjudicated person is appropriate and poses minimal risk to the
child.
(h) If the court finds that the parent has met the burden of
rebutting the presumption under (f) of this subsection, the court
may allow a parent who has been convicted as an adult of a sex
offense listed in (d)(i) through (ix) of this subsection to have
residential time with the child supervised by a neutral and
independent adult and pursuant to an adequate plan for
supervision of such residential time. The court shall not
approve of a supervisor for contact between the child and the
parent unless the court finds, based on the evidence, that the
supervisor is willing and capable of protecting the child from
harm. The court shall revoke court approval of the supervisor
upon finding, based on the evidence, that the supervisor has
failed to protect the child or is no longer willing or capable of
protecting the child.
(i) If the court finds that the parent has met the burden of
rebutting the presumption under (g) of this subsection, the court
may allow a parent residing with a person who has been
adjudicated as a juvenile of a sex offense listed in (e)(i)
through (ix) of this subsection to have residential time with the
child in the presence of the person adjudicated as a juvenile,
supervised by a neutral and independent adult and pursuant to an
adequate plan for supervision of such residential time. The
court shall not approve of a supervisor for contact between the
child and the parent unless the court finds, based on the
evidence, that the supervisor is willing and capable of
protecting the child from harm. The court shall revoke court
approval of the supervisor upon finding, based on the evidence,
that the supervisor has failed to protect the child or is no
longer willing or capable of protecting the child.
(j) If the court finds that the parent has met the burden of
rebutting the presumption under (g) of this subsection, the court
may allow a parent residing with a person who, as an adult, has
been convicted of a sex offense listed in (e)(i) through (ix) of
this subsection to have residential time with the child in the
presence of the convicted person supervised by a neutral and
independent adult and pursuant to an adequate plan for
supervision of such residential time. The court shall not
approve of a supervisor for contact between the child and the
parent unless the court finds, based on the evidence, that the
supervisor is willing and capable of protecting the child from
harm. The court shall revoke court approval of the supervisor
upon finding, based on the evidence, that the supervisor has
failed to protect the child or is no longer willing or capable of
protecting the child.
(k) A court shall not order unsupervised contact between the
offending parent and a child of the offending parent who was
sexually abused by that parent. A court may order unsupervised
contact between the offending parent and a child who was not
sexually abused by the parent after the presumption under (d) of
this subsection has been rebutted and supervised residential time
has occurred for at least two years with no further arrests or
convictions of sex offenses involving children under chapter 9A.44 RCW, RCW 9A.64.020, or chapter 9.68A RCW and (i) the sex
offense of the offending parent was not committed against a child
of the offending parent, and (ii) the court finds that
unsupervised contact between the child and the offending parent
is appropriate and poses minimal risk to the child, after
consideration of the testimony of a state-certified therapist,
mental health counselor, or social worker with expertise in
treating child sexual abuse victims who has supervised at least
one period of residential time between the parent and the child,
and after consideration of evidence of the offending parent's
compliance with community supervision requirements, if any. If
the offending parent was not ordered by a court to participate in
treatment for sex offenders, then the parent shall obtain a
psychosexual evaluation conducted by a certified sex offender
treatment provider or a certified affiliate sex offender
treatment provider indicating that the offender has the lowest
likelihood of risk to reoffend before the court grants
unsupervised contact between the parent and a child.
(l) A court may order unsupervised contact between the
parent and a child which may occur in the presence of a juvenile
adjudicated of a sex offense listed in (e)(i) through (ix) of
this subsection who resides with the parent after the presumption
under (e) of this subsection has been rebutted and supervised
residential time has occurred for at least two years during which
time the adjudicated juvenile has had no further arrests,
adjudications, or convictions of sex offenses involving children
under chapter 9A.44 RCW, RCW 9A.64.020, or chapter 9.68A RCW, and
(i) the court finds that unsupervised contact between the child
and the parent that may occur in the presence of the adjudicated
juvenile is appropriate and poses minimal risk to the child,
after consideration of the testimony of a state-certified
therapist, mental health counselor, or social worker with
expertise in treatment of child sexual abuse victims who has
supervised at least one period of residential time between the
parent and the child in the presence of the adjudicated juvenile,
and after consideration of evidence of the adjudicated juvenile's
compliance with community supervision or parole requirements, if
any. If the adjudicated juvenile was not ordered by a court to
participate in treatment for sex offenders, then the adjudicated
juvenile shall obtain a psychosexual evaluation conducted by a
certified sex offender treatment provider or a certified
affiliate sex offender treatment provider indicating that the
adjudicated juvenile has the lowest likelihood of risk to
reoffend before the court grants unsupervised contact between the
parent and a child which may occur in the presence of the
adjudicated juvenile who is residing with the parent.
(m)(i) The limitations imposed by the court under (a) or (b)
of this subsection shall be reasonably calculated to protect the
child from the physical, sexual, or emotional abuse or harm that
could result if the child has contact with the parent requesting
residential time. The limitations shall also be reasonably
calculated to provide for the safety of the parent who may be at
risk of physical, sexual, or emotional abuse or harm that could
result if the parent has contact with the parent requesting
residential time. The limitations the court may impose include,
but are not limited to: Supervised contact between the child and
the parent or completion of relevant counseling or treatment. If
the court expressly finds based on the evidence that limitations
on the residential time with the child will not adequately
protect the child from the harm or abuse that could result if the
child has contact with the parent requesting residential time,
the court shall restrain the parent requesting residential time
from all contact with the child.
(ii) The court shall not enter an order under (a) of this
subsection allowing a parent to have contact with a child if the
parent has been found by clear and convincing evidence in a civil
action or by a preponderance of the evidence in a dependency
action to have sexually abused the child, except upon
recommendation by an evaluator or therapist for the child that
the child is ready for contact with the parent and will not be
harmed by the contact. The court shall not enter an order
allowing a parent to have contact with the child in the
offender's presence if the parent resides with a person who has
been found by clear and convincing evidence in a civil action or
by a preponderance of the evidence in a dependency action to have
sexually abused a child, unless the court finds that the parent
accepts that the person engaged in the harmful conduct and the
parent is willing to and capable of protecting the child from
harm from the person.
(iii) If the court limits residential time under (a) or (b)
of this subsection to require supervised contact between the
child and the parent, the court shall not approve of a supervisor
for contact between a child and a parent who has engaged in
physical, sexual, or a pattern of emotional abuse of the child
unless the court finds based upon the evidence that the
supervisor accepts that the harmful conduct occurred and is
willing to and capable of protecting the child from harm. The
court shall revoke court approval of the supervisor upon finding,
based on the evidence, that the supervisor has failed to protect
the child or is no longer willing to or capable of protecting the
child.
(n) If the court expressly finds based on the evidence that
contact between the parent and the child will not cause physical,
sexual, or emotional abuse or harm to the child and that the
probability that the parent's or other person's harmful or
abusive conduct will recur is so remote that it would not be in
the child's best interests to apply the limitations of (a), (b),
and (m)(i) and (iii) of this subsection, or if the court
expressly finds that the parent's conduct did not have an impact
on the child, then the court need not apply the limitations of
(a), (b), and (m)(i) and (iii) of this subsection. The weight
given to the existence of a protection order issued under chapter 26.50 RCW as to domestic violence is within the discretion of the
court. This subsection shall not apply when (c), (d), (e), (f),
(g), (h), (i), (j), (k), (l), and (m)(ii) of this subsection
apply.
(3) A parent's involvement or conduct may have an adverse
effect on the child's best interests, and the court may preclude
or limit any provisions of the parenting plan, if any of the
following factors exist:
(a) A parent's neglect or substantial nonperformance of
parenting functions;
(b) A long-term emotional or physical impairment which
interferes with the parent's performance of parenting functions
as defined in RCW 26.09.004;
(c) A long-term impairment resulting from drug, alcohol, or
other substance abuse that interferes with the performance of
parenting functions;
(d) The absence or substantial impairment of emotional ties
between the parent and the child;
(e) The abusive use of conflict by the parent which creates
the danger of serious damage to the child's psychological
development;
(f) A parent has withheld from the other parent access to
the child for a protracted period without good cause; or
(g) Such other factors or conduct as the court expressly
finds adverse to the best interests of the child.
(4) In cases involving allegations of limiting factors under
subsection (2)(a)(ii) and (iii) of this section, both parties
shall be screened to determine the appropriateness of a
comprehensive assessment regarding the impact of the limiting
factor on the child and the parties.
(5) In entering a permanent parenting plan, the court shall
not draw any presumptions from the provisions of the temporary
parenting plan.
(6) In determining whether any of the conduct described in
this section has occurred, the court shall apply the civil rules
of evidence, proof, and procedure.
(7) For the purposes of this section, a parent's child means
that parent's natural child, adopted child, or stepchild.
[2007 c 496 § 303; 2004 c 38 § 12; 1996 c 303 § 1; 1994 c 267 § 1. Prior: 1989 c 375 § 11; 1989 c 326 § 1; 1987 c 460 § 10.]
NOTES:
Part headings not law -- 2007 c 496: See note following RCW 26.09.002.
Effective date -- 2004 c 38: See note following RCW 18.155.075.
Effective date -- 1996 c 303: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 30, 1996]." [1996 c 303 § 3.]
Effective date -- 1994 c 267: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [April 1, 1994]." [1994 c 267 § 6.]