Selected State Statutes: Washington

Statutes: Washington

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26.26.0001. Parental rights and responsibilities of sexual assault perpetrators and survivors

(1) This section applies in cases when a person alleged or presumed to be a legal parent to a child is alleged to have committed a sexual assault that resulted in the victim of the assault becoming pregnant and subsequently giving birth to the child.

(2) For the purposes of this section, “sexual assault” means nonconsensual sexual penetration that results in pregnancy.

(3) For the purposes of this section, the fact that the person seeking parental rights or presumed to be a legal parent committed a sexual assault that resulted in the victim of the assault becoming pregnant and subsequently giving birth to the child may be proved by either:

(a) Evidence that the person seeking parental rights or presumed to be a legal parent was convicted of or pleaded guilty to a sexual assault under RCW 9A.44.040, 9A.44.050, 9A.44.060, or a comparable crime of sexual assault in any jurisdiction, against the child's parent, and that the child was born within three hundred twenty days after the sexual assault; or

(b) Clear, cogent, and convincing evidence that the person seeking parental rights or presumed to be a legal parent committed sexual assault, as defined in this section, against the child's parent, and that the child was born within three hundred twenty days after the sexual assault.

(4) An allegation that the child was born as the result of a sexual assault may be raised under this chapter:

(a) In a petition to adjudicate parentage; or

(b) In response to a petition to adjudicate parentage.

The pleading making the allegation must be filed in a petition or in a response to a petition in proceedings filed no later than four years after the birth of the child, except that (i) the pleading making the allegation that the child was born as a result of a sexual assault may be filed at any time in proceedings pursuant to RCW 26.26.525; or (ii) for a period of two years after the effective date of this section, a court may waive the time bar in cases in which a presumed, acknowledged, or adjudicated parent was found in a criminal or separate civil proceeding to have committed a sexual assault against the parent alleging that the child was born as a result of the sexual assault.

(5) If there is an allegation that the child was born as a result of a sexual assault against the child's parent by the person seeking parentage or presumed to be the parent of the child, the court must conduct a fact-finding hearing on the allegation.

(a) The court may not enter any temporary orders providing residential time or decision making to the alleged perpetrator prior to the fact-finding hearing on the sexual assault allegation unless both of the following criteria are satisfied: (i) The alleged perpetrator is a presumed parent of the child; and (ii) the court specifically finds that it would be in the best interests of the child if such temporary orders are entered.

(b) Prior to the fact-finding hearing, the court may order genetic testing to determine whether the alleged perpetrator is biologically related to the child. If genetic testing reveals that the alleged perpetrator is not biologically related to the child, the fact-finding hearing must be stricken.

(c) Fourteen days prior to the fact-finding hearing, the party alleging that the child was born as a result of a sexual assault shall submit affidavits setting forth facts supporting the allegation and shall give notice, together with a copy of the affidavit, to other parties to the proceedings, who may file opposing affidavits. Opposing affidavits must be submitted and served to other parties to the proceeding five days prior to the fact-finding hearing.

(d) The court shall determine on the record whether affidavits and documents submitted for the fact-finding hearing should be sealed.

(6) If, after the fact-finding hearing or after a bench trial, the court finds that the person seeking parental rights or presumed to be a legal parent committed sexual assault, pursuant to the standards set forth in subsection (3)(a) or (b) of this section, against the child's parent, and that the child was born within three hundred twenty days of the sexual assault the court must:

(a) Enter an order holding that the person seeking parental rights or presumed to be a legal parent is not a parent of the child, if such an order is requested by the child's legal parent or guardian; or

(b) Enter an order consistent with the relief requested by the child's legal parent or guardian, provided that the court determines that the relief requested is in the best interests of the child.

(7) Absent the express written consent of the child's legal parent or guardian, a person who is found to have committed a sexual assault, as defined in this section, against the child's parent, and that the child was born within three hundred twenty days of the sexual assault has:

(a) No right to an allocation of parental rights, including residential time or decision-making responsibilities for the child;

(b) No right to inheritance from the child; and

(c) No right to notification of, or standing to object to, the adoption of the child.

(8) If the court enters an order under subsection (6) of this section that is inconsistent with the information on the child's birth certificate, the court shall also order the birth certificate be amended in a manner that is consistent with the child's best interests and the wishes of the child's legal parent or guardian.

(9) If the court finds that the person seeking parentage or presumed to be the parent committed a sexual assault, as defined in this section, against the child's parent, and that the child was born within three hundred twenty days of the sexual assault, and the legal parent or guardian requests it, the court must order the person seeking parentage or presumed to be the parent to pay child support or birth-related costs or both.

(10) The legal parent or guardian may decline an order for child support or birth-related costs. If the legal parent or guardian declines an order for child support, and is either currently receiving public assistance or later applies for it for the child born as a result of the sexual assault, support enforcement agencies as defined in this chapter shall not file administrative or court proceedings to establish or collect child support, including medical support, from the person seeking parentage or presumed to be the parent who has been found to have committed a sexual assault, as defined in this section, against the child's parent, and that the child was born within three hundred twenty days of the sexual assault.

(11) If the court enters an order under subsection (10) of this section providing that no child support obligation may be established or collected from the person seeking parentage or presumed to be the parent who has been found to have committed a sexual assault, the court shall forward a copy of the order to the Washington state support registry.

(12) The court may order an award of attorneys' fees under this section on the same basis as attorneys' fees are awarded under RCW 26.09.140.

(13) Any party may move to close the fact-finding hearing and any related proceedings under this section to the public. If no party files such a motion, the court shall determine on its own initiative whether the fact-finding hearing and any related proceedings under this section should be closed to the public. Upon finding good cause for closing the proceeding, and if consistent with Article I, section 10 of the state Constitution, the court may: (a) Restrict admission to only those persons whom the court finds to have a direct interest in the case or in the work of the court, including witnesses deemed necessary to the disposition of the case; and (b) restrict persons who are admitted from disclosing any information obtained at the hearing that would identify the parties involved or the child.