Advocate for Comprehensive Family Court Reform - Oppose Shortsighted Changes
As a non-profit civil legal aid organization specializing in appealing harmful trial court custody outcomes, Family Violence Appellate Project (FVAP) has unique expertise on matters relating to custody decisions, particularly cases involving domestic violence. FVAP’s experience working with survivors, protective parents, and their children forms the basis of FVAP’s strong support for comprehensive family court reform and also opposition to regressive bills that fundamentally change our state’s approach to protecting survivors and their children in parenting cases.
The Superior Court Judges Association (“SCJA”) is proposing significant changes to RCW 26.09.191, the most important statute governing parenting plan decisions in cases involving physical, sexual and emotional abuse. House Bill 2237 adopts this proposal. The companion bill, SB 5205, is the original version proposed by SCJA from 2023. Both bills are currently being considered.
1. Primarily, SCJA’s Goal Is For More Judicial Discretion When Making Custody Determinations. But Expanding Judicial Discretion Will Result In Appellate Review Being Extremely Curtailed And Dangerous Custody Mistakes Will Not Be Able To Be Fixed.
- While this approach may fit a conventional understanding of what is wrong, the SCJA framework blinds us from considering alternative solutions and prevents us from reaching sustainable, rehabilitative reform.
- Most unrepresented litigants and even trial attorneys do not fully understand that the appellate court is limited in what they can change or fix by court rules and case law. The Court of Appeals presumes trial judges follow the law and the rules, and that they have exercised their discretion appropriately and correctly.
- This approach is called an abuse of discretion standard of review. The party challenging a parenting plan "'bears the heavy burden of showing a manifest abuse of discretion'" by the trial court. It is extremely hard to win an appeal (generally only about 20% are successful). It will be almost impossible to fix a dangerous mistake in a custody order if judicial discretion is increased in .191 for ANY family law litigant.
2. SCJA Provides No Supporting Rationale for More Judicial Discretion or for Their Proposal’s Global Effect: The Weakening Of Critical Protections For Survivors And Their Children.
- Yet, currently, custody bias favors abusive fathers.
- Discretionary findings such as “emotional impairment” have been applied to limit a survivor’s contact with their children in cases where a parent does not have a diagnosis, and where that parent’s treatment provider testifies the parent poses no risk of harm to their children.
- Protective parents have been branded with “abusive use of conflict” discretionary findings, subject to limitations as severe as supervised visitation as a result.
- SCJA’s proposal threatens MORE removal of more children from survivor and protective parents into the custody of the abuser.
3. The Proposal Creates a New Requirement for a Victim of Domestic Violence to Confront Their Abuser
- SCJA’s proposal introduces a new requirement to change our protective statute from one with firm mandatory limitations on decision-making in domestic violence cases, to one with a rebuttable presumption.
- The existing statute, and case law interpreting it, prohibits a court from ordering joint decision-making when it enters findings for any of the mandatory limitations, including domestic violence. And there is substantial case law that supports the decades-long statutory limitation on decision-making for perpetrators of domestic violence.
- Moreover, our Legislature’s intent and the history behind domestic violence laws indicate that sole decision-making should not be given to the parent found to have a history of domestic violence.
- The dynamic between an abuser and his victim renders joint decision-making unworkable because of an imbalance of power. If he is an abuser, he is more likely to use power, in the parenting role, to dominate and intimidate the other parent.
- By ordering joint decision-making, the court places the victim in an impossible position—she is forced to negotiate with her abuser despite her lack of power within that relationship. Therefore, joint decision-making leads to a greater level of contact and conflict than sole decision-making. In turn, these repeated conflict opportunities result in the greater potential for childhood stress.
4. The Proposal Permits A Trial Court To Treat A Finding Of Mental Health Or “Abusive Use Of Conflict” As Seriously As A Parent’s Sex Abuse And Domestic Violence
- This section is perhaps the most problematic of the proposed changes. The existing statute does not contemplate that discretionary factors should ever be weighed as equally as mandatory ones. The proposal provides no rationale supporting the notion that harm to children caused by one or more of the discretionary factors can equal or outweigh the harm caused by abuse to a parent or child.
- While family courts today do wrongly place children in the primary care of abusers, our legislature should strive to adopt changes that prevent these harmful outcomes, not codify them. This crisis point necessitates progressive reform of RCW 26.09, as well as related statutes (such as those regulating Guardian ad Litems and other paid third-party professionals) and court rules for family law cases, to protect children and survivors from serious harm. For example, efforts to codify the Keeping Children Safe from Family Violence act in Washington state–tailored to the needs of Washington survivors, and implementing the Model Code on Domestic and Family Violence–tailored to the needs of Washington survivors, all should be seriously considered in comprehensive family court reform.
- The proposal's inclusion that "there is a presumption that the mandatory limitations shall have priority in setting the limitations of the residential schedule, decision making and dispute resolution" is not strong enough (and indeed, under the proposal, can now be rebutted). Any clarification to the statute must include a clear "shall" requirement that mandatory limitations are always weighed more heavily than discretionary findings/limitations, and that mandatory limitations "shall" take precedence and limitations considered prior to any other discretionary findings/limitations.
5. The Proposal Permits A Trial Court To Subject A Non-Abuser Survivor Parent To The Same Limitations And Restrictions As Required For Domestic Violence And Sexual Abuse.
- The proposal creates a new section that provides options for limitations a court can impose. These limitations apply to both mandatory and discretionary limitations, elevating discretionary factors to conduct that creates the same or substantially similar harm or risk of harm as domestic violence and sexual abuse.
- This section therefore directs the court to enter the same limitations for non-abusers with discretionary findings as those it could enter to protect a child from actual physical, sexual, or emotional abuse. This includes non-abusers that have an “emotional impairment” finding but that have no mental health diagnosis, and non-abusers with a finding of “abusive use of conflict”, which has become synonymous with the debunked theory of “parental alienation syndrome” in our state.
- Related, the "Evaluation or Treatment" proposal permits a trial court to enter an order of no contact until a non-abuser parent completes treatment, including for findings that do not include a diagnosis.
- While there are state regulated treatment programs for domestic violence and criminal sexual abuse, neither the existing statute nor the proposal provide treatment protocols for discretionary factors. Often in practice, this blend of discretion and ambiguity results in the permanency of an order for supervised visitation or no contact for the non-abuser parent.
- “Emotional impairment" and “abusive use of conflict” have no rehabilitative pathway, whereas a domestic violence perpetrator can complete treatment, return to court, and have residential time reinstated.
- The provision also does not guide the trial court as to what testimony or evidence should be considered when ordering evaluations and/or treatment, whether it should be based on testimony from certified professionals in the relevant field with basic training and education requirements, nor that it should require express written findings.
- Note that other states, such as California, Oregon, and Colorado, do not contain discretionary limitations such as are present in Washington's existing statute. And regarding mental health, Oregon references the ADA definition of "mental illness" and substantial limitation. Colorado clarifies that a mental disability alone shall not constitute the basis for restrictions on residential time.
- None of these limitations require the court to make express written findings based on the evidence, which should be required for all parenting limitations.
- Additionally, supervised access is an unregulated industry. Missing from the proposal’s approach to codify a rebuttable presumption that ALL supervision should be professional, is a companion set of principles regarding when and under what conditions supervised access should be ordered by courts.
- This absence of substantive standards may be a direct reflection of our lack of understanding of supervised access. While many jurisdictions have adopted detailed standards for the provision of supervised access services, Washington has not articulated substantive guidelines for the imposition of supervised access beyond the physical safety or best interests of the child.
6. Family Court Reform Must Include Requirements For Express Written Findings Supporting All Conclusions In Parenting Plans, In Particular When There Is A Limitation Being Placed On A Parent.
- Requiring express written findings allows appellate courts to confirm that a trial court has fully analyzed the evidence, and made its conclusions based on that evidence. It gives parties a fighting chance to request review of their parenting plan by the appellate court. It upholds the trial court’s responsibility to interpret and and apply the law correctly, based on the evidence.
- While some proposed provisions include a requirement for express written findings, we propose that all findings related to limitations on either parent in a parenting plan should memorialize the evidence relied upon (“do the analysis”) and also “show the work” of the trial judge through express written findings.
Conclusion
Our Legislature has long recognized “[d]omestic violence is a problem of immense proportions affecting individuals as well as communities. Based on that historic recognition, our legislature has consistently adopted legislation to further protect survivors. However, this proposal accomplishes the opposite goal.
While FVAP recognizes the need to amend RCW 26.09.191 to further protect survivors and protective parents in family court, the current proposal is not the answer. As such, FVAP, in partnership with non-profit organizations and survivor parents, is preparing to introduce a bill packet in the next legislative session that comprehensively addresses the underlying and pervasive problems in family court today.
Consistent with our legislature’s storied efforts to tackle the tremendous problem of domestic violence in Washington State, we urge you to oppose the SCJA proposal.
References
.191 Bill Summary Positions & Proposals spreadsheet
Statutory Definition of Domestic Violence
Overview & History of RCW 26.09.191
Survivor stories about “abusive use of conflict”
Survivor stories about “emotional impairment”
Danny v. Laidlaw Transit Servs (Case law surveying Washington’s public policy of combating domestic violence)
In re Marriage of Kim (case law about the abuse of discretion standard of review; no reasonable judge would have reached the same conclusion)
DV LEAP study: RATES AT WHICH ACCUSED AND ADJUDICATED BATTERERS RECEIVE SOLE OR JOINT CUSTODY (2013)
Emotional Impairment – Definitions of Conduct in Case Law
Abusive use of Conflict - Definitions of Conduct in Case Law
Family Court Reform - Statutes Implicated
Caven v. Caven (RCW 26.09.191 requires sole decision-making upon a finding of a history of acts of domestic violence)