HB 1930 — Concerning child custody.

H-1937.1SUBSTITUTEH-1081.2HOUSE HOUSE BILL 1930State of Washington65th Legislature2017 Regular SessionBy House Judiciary (originally sponsored by Representatives Frame, Rodne, and Jinkins)READJinkinsRead FIRSTfirst TIMEtime 02/17/17.AN02/03/17. ACT Relating to child custody;

Referred to Committee on Judiciary.AN ACT Relating to child custody;

and adding new sections to chapter 26.10 RCW.BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:Sec. 1.  RCW 26.10.030 and 2003 c 105 s 3 are each amended to read as follows:(1) Except as authorized for proceedings brought under chapter 13.34 RCW, or chapter 26.50 RCW in district or municipal courts, a child custody proceeding is commenced in the superior court by a person other than a parent, by filing a petition seeking custody of the child in the county where the child is permanently a resident or where the child is found, but only if the child is not in the physical custody of one of its parents or((or if the petitioner alleges thatthat)) and neither parent is a suitable custodian.

In proceedings in which the juvenile court has not exercised concurrent jurisdiction and prior to a child custody hearing, the court shall determine if the child is the subject of a pending dependency action.(2) Notice of a child custody proceeding shall be given to ((thethe child's))child's any parent, guardian,guardian and custodiancustodian, of the child, who may appear and be heard and may file a responsive pleading.

The court may, upon a showing of good cause, permit the intervention of other interested parties.(3) The petitioner shall include in the petition the names of any adult members of the petitioner's household.Sec. 2.  RCW 26.10.032 and 2003 c 105 s 6 are each amended to read as follows:(1) A party seeking a custody order shall submit, along with his or her ((motion,motion, an((an affidavit declaring)) petition, a declaration stating that the child is not in the physical custody of one of its parents or((or)) and that neither parent is a suitable custodian and setting forth facts supporting the requested order.

In a custody action between a nonparent and a parent, the nonparent seeking custody has the burden to show that the child is not in the physical custody of one of its parents and either:

or (b) that placementthe withchild's angrowth otherwiseand fitdevelopment parent would be detrimentaldetrimentally toaffected theby child'splacement physical,with mental,an orotherwise emotionalfit health.parent.

The party seeking custody shall give notice, along with a copy of the ((affidavit)) petitiondeclaration, and any declarations, to other parties to the proceedings, who may file opposing ((affidavits)) declarations.(2) ((The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order should not be granted.)) TheDetermination courtof shall deny the petition unless it finds that the declaration or declarations establish adequate cause,cause meaningshall facts that, if true, would show the parent is unfit or placement with an otherwise fit parent would be detrimentalpursuant to thean child'sorder physical, mental, or emotional health.(3) Temporary custody orders may issue upon entry of a finding of adequate cause.Sec. 3.  RCW 26.10.100 and 1987 c 460 s 38 are each amended to readshow ascause. follows:((The court shall determine custody in accordance with the best interests of the child)) A nonparent seeking custody from a parent must prove, by clear, cogent, and convincing evidence, that:

The show cause hearing shall not be set unless the court finds that the declaration or declarations provide a prima facie showing of adequate cause.

A mere showing that nonparental custody of the child is in the best interests of the child is insufficient to establish adequate cause.

The petition must be dismissed without the prima facie showing.

At the show cause hearing all parties are entitled to present a declaration as to why the requested order should or should not be granted.

If adequate cause is not established and the order is not granted, the petition must be dismissed.Sec. 3.  RCW 26.10.100 and 1987 c 460 s 38 are each amended to read as follows:((The court shall determine custody in accordance with the best interests of the child)) A nonparent seeking custody from a parent must prove, by clear, cogent, and convincing evidence, that the child is not in the physical custody of one of its parents and:

or (2) placement of the child with an otherwise fit parent wouldwill beresult detrimentalin actual detriment to the child's physical,growth mental,and ordevelopment.Sec. 4.  RCW emotional health.Sec. 4.  RCW 26.10.160 and 2011 c 89 s 7 are each amended to read as follows:(1) A parent not granted custody of the child is entitled to reasonable visitation rights except as provided in subsection (2) of this section.(2)(a) Visitation with the child shall be limited if it is found that the parent seeking visitation has engaged in any of the following conduct:

The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.(4) The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child.)) Modification of a parent's visitation rights shall be subject to the requirements of subsection (2) of this section.(((5))) (4) For the purposes of this section:(a) "A parent's child" means that parent's legal child, whether natural child, adopted child, "de facto" child, or stepchild;

and(b) "Social worker" means a person with a master's or further advanced degree from a social work educational program accredited and approved as provided in RCW 18.320.010.Sec. 5.  RCW 26.10.190 and 2000 c 21 s 21 are each amended to read as follows:(1) The court shall hear and review petitions ((for modifications of a)) to change a final, nonparent parenting plan, custody order, visitation order, or other order governing the residence of a child, including terminating the order to return the child to the care of the parent, and conduct any proceedings concerning a relocation of the residence where the child resides a majority of the time, pursuant to this chapter (( 26.09 RCW)).(2) If the order is granted and a parent has a child returned to him or her, the parent may file a petition for entry of a parenting plan under a separate cause number.(3) If the court finds that a motion to modify or terminate a prior custody ((decree)) order has been brought in bad faith, the court shall assess the attorney's fees and court costs of the custodian against the ((petitioner)) moving party.NEW SECTION.  Sec. 6.  A new section is added to chapter 26.10 RCW to read as follows:(1) If the original custody order was entered by default, agreement of the parties, or after trial with no specific findings of the unfitness or actual detriment of the parents, or by default, or by agreement of the parties, the nonparent custody order must be terminated unless custodians or a nonmoving party demonstrates by clear, cogent, and convincing evidence the current unfitness of the parent or actual detriment to the child.(2) If the original nonparent custody order was entered pursuant to a finding of unfitness or actual detriment, the moving party must demonstrate by a preponderance of evidence a substantial change in his or her circumstances since the entry of the prior order, specifically related to the basis for the custody order and the best interests of the child.NEW SECTION.  Sec. 7.  A new section is added to chapter 26.10 RCW to read as follows:(1) The court may order adjustments to the residential aspects of a residential schedule upon a showing of a substantial change in circumstances of either parent or of the child if the proposed modification is only a minor modification in the residential schedule that does not change the residence the child is scheduled to reside in the majority of the time and:(a) Does not exceed twenty-four full days in a calendar year;(b) Is based on a change of residence of the parent with whom the child does not reside the majority of the time or an involuntary change in work schedule by a parent that makes the residential schedule in the parenting plan impractical to follow;

Following that determination, the court shall determine what modification pursuant to relocation should be made, if any, to the residential schedule, custody order, or visitation order.(4) A parent with whom the child does not reside a majority of the time and whose residential time with the child is subject to limitations pursuant to RCW 26.10.160 may not seek expansion of residential time unless that parent demonstrates a substantial change in circumstances specifically related to the basis for the limitation.(5) A parent with whom the child does not reside a majority of the time who is required by the existing residential schedule to complete evaluations, treatment, parenting, or other classes may not seek expansion of residential time under of this section unless that parent has fully complied with such requirements.(6) The court may order adjustments to any of the nonresidential aspects of a residential schedule upon a showing of a substantial change of circumstances of a custodian, either parent, or of a child, and that the adjustment is in the best interests of the child.Sec. 8.  RCW 26.10.200 and 1987 c 460 s 48 are each amended to read as follows:(1) A party seeking ((a temporary custody order or)) modification or termination of a ((custody decree)) nonparent custody order or residential schedule shall submit together with his or her motion, ((an affidavit)) a declaration setting forth facts supporting the requested ((orderorder or)) modification or terminationmodification and shall give notice, together with a copy of the ((affidavit)) declaration, to other parties to the proceedings, who may file opposing ((affidavits)) declarations.

The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the ((affidavits)) declarations, which may include the moving party demonstrating by a preponderance of the evidence a substantial change in circumstances specifically related to the basis for the limitation, in which case it shall set a date for hearing on an order to show cause why the requested ((orderorder or)) modification or terminationmodification should not be granted.(2) If the original custody order was entered with no specific findings of unfitness or actual detriment of the parties, adequate cause is not required.Sec. 9.  RCW 26.09.260 and 2009 c 502 s 3 are each amended to read as follows:(1) Other than modifications pertaining to a nonparent custody order governed by chapter 26.10 RCW and except as otherwise provided in subsections (4), (5), (6), (8), and (10) of this section, the court shall not modify a prior custody ((decree)) order or a parenting plan unless it finds, upon the basis of facts that have arisen since the prior ((decree)) order or plan or that were unknown to the court at the time of the prior ((decree)) order or plan, that a substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child.