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Legal Information: Washington

Custody

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Updated: 
December 3, 2020

If the abusive parent committed domestic violence or a sex offense, can the abusive parent get decision-making powers?

If the judge believes that the abusive parent has done any of the following, the abusive parent cannot get mutual decision-making rights. The judge must believe that the abusive parent:

  1. committed physical abuse, sexual abuse, or a pattern of emotional abuse against any child;
  2. has a history of committing acts of domestic violence (as defined by law) against anyone; or
  3. committed an assault or sexual assault (against anyone) that caused:

1 R.C.W. § 26.09.191(1)

If the abusive parent committed domestic violence or a sex offense, can the abusive parent get residential parenting time?

If the judge believes that the abusive parent has done anything listed in one of the four categories below, the abusive parent’s residential time with the child must be limited. The judge must believe that the abusive parent:

  1. committed physical abuse, sexual abuse, or a pattern of emotional abuse against a child;
  2. has a history of committing acts of domestic violence (as defined by law);
  3. committed an assault or sexual assault that resulted in:
  4. was convicted as an adult of a sex offense as follows:
    1. if s/he was convicted of one of the sex offenses listed here in section (2)(a), the judge could limit residential time;1
    2. if s/he was convicted of one of the more serious sex offenses listed here in section (2)(d), the judge has to assume that the parent is a danger to the child and cannot allow contact between the parent and child unless the parent is able to convince the judge otherwise;
    3. if s/he was designated to be a sexual predator, the judge cannot allow contact with the child.2

The types of limitations that a judge can order on a parent’s residential time include:

  • completion of relevant counseling/treatment for the parent;
  • supervised contact between the child and the parent; or
  • no contact between the child and the parent (if the judge believes that the other limitations would not protect the child from harm or abuse).3

1 R.C.W. § 26.09.191(2)(a)
2 R.C.W. § 26.09.191(2)(c),(d)
3 R.C.W. § 26.09.191(2)(m)(i)

If the abusive parent sexually abused the subject child (the one who the custody case is about), will the judge allow contact?

The questions above deal with limitations that a judge can place on a parent if the parent sexually abused “a child.” However, if the abusive parent sexually abused the subject child (the one who the custody case is about), the limitations are much stricter. The judge can only allow contact between the abusive parent and the child if the child’s therapist or an evaluator who evaluated the child recommends it. The therapist/evaluator must confirm that the child is ready for contact with the parent and will not be harmed by it.1

1 R.C.W. § 26.09.191(2)(m)(ii)

If the subject child was conceived from a sexual assault, can the abusive parent (offender) get decision-making powers or parenting time?

No. If the judge finds by “clear and convincing evidence” that the subject child was conceived due to a sexual assault by the abusive parent, the parent cannot get any parental rights. Therefore, the abusive parent (the offender) cannot get residential time or decision-making responsibilities for the child. However, the offender can still be ordered to pay child support.1

It is important to note that the abusive parent (offender) does not need to be criminally convicted of the sexual assault against you – although a conviction can help your case. As long as you can convince the judge that the offender sexually assaulted you and that your child was conceived as a result, the offender can be denied all parental rights.

1 R.C.W. §§ 26.09.191(2)(m)(iii); 26.26.0001(7)(a),(9)

If a parent who is not abusive lives with someone who committed domestic violence or a sex offense, can the non-abusive parent get residential parenting time?

If a parent who is not abusive lives with someone who has committed domestic violence or a sex offense, this may affect the non-abusive parent’s right to see his/her children. The non-abusive parent’s residential parenting time must be limited if s/he lives with someone who:

  1. committed physical abuse, sexual abuse, or a pattern of emotional abuse of a child;
  2. has a history of acts of domestic violence (as defined by law);
  3. committed an assault or sexual assault that resulted in:
    • serious (“grievous”) bodily harm;
    • the fear of serious (“grievous”) bodily harm;
    • a pregnancy; or
  4. was convicted as an adult or as a juvenile of a sex offense as follows:
    1. if s/he was convicted of one of the sex offenses listed here in section (2)(a), the judge could limit residential time;1
    2. if s/he was convicted of one of the more serious sex offenses listed here in section (2)(d), the parent can only have contact with the child when that person is not around unless the parent can change the judge’s mind;
    3. if s/he was designated to be a sexual predator, the judge can only allow contact that takes place when that person is not around.2

1 R.C.W. § 26.09.191(2)(b)
2 R.C.W. § 26.09.191(2)(c),(d),(e)

Can the judge restrict the parenting plan based on the conduct of the other parent?

Even once a parenting plan is in place, the law recognizes that a parent’s involvement or actions can have a negative effect on the child’s best interests. The judge can limit or remove any parts of the parenting plan if any of the following factors exist:

  1. a parent has neglected their parenting functions or not performed them in a substantial way;
  2. a parent has a long-term physical or emotional condition that interferes with his/her performance of parenting functions;
  3. a parent has a long-term drug or alcohol dependency that interferes with his/her performance of parenting functions;
  4. there is no emotional tie between the parent and the child or it is substantially damaged;
  5. a parent purposefully creates conflict, including abusive litigation as defined in R.C.W. 26.51.020, which creates the danger of serious damage to the child’s psychological development.1

“Parenting functions” include:

  1. maintaining a loving, stable, consistent, and nurturing relationship with the child;
  2. attending to the daily needs of the child, such as feeding, clothing, physical care and grooming, supervision, health care, and day care;
  3. doing other activities that are appropriate to the developmental level of the child and that are within the social and economic circumstances of the particular family;
  4. providing an adequate education for the child, including remedial or other education that the child needs;
  5. helping the child in developing and maintaining appropriate interpersonal relationships;
  6. exercising appropriate judgment regarding the child’s welfare, consistent with the child’s developmental level and the family’s social and economic circumstances; and
  7. providing for the financial support of the child.2

1 R.C.W. § 26.09.191(3)
2 R.C.W. § 26.09.004(2)