Seattle Attorneys Blog
Washington child custody rules do not favor modifying parenting plans to decrease visitation. A court may, however, modify a parenting plan if it finds, based on information that occurred after the decree or that was unknown to the court at the time, that there has been a substantial change that makes a modification necessary to serve the child’s best interests. RCW 26.09.260. Additionally, restrictions or limitations may be appropriate when certain circumstances are present. A court may, for example, preclude or limit a provision in the parenting plan if the parent’s involvement is not in the child’s best interest, and one or more specified factors are present. Those factors include neglect, long-term impairment, and withholding access to the child from the other parent. Additionally, one of the listed factors is essentially any other factor the court finds to be adverse to the child’s best interests. RCW 26.09.194. Even when a court does place limitations or restrictions on visitation, it may put something in place to allow the parent to work toward resuming regular visitation. This process may include working with a counselor or therapist to ensure that resumption of the visitation is in the child’s best interest.
A mother recently challenged a court’s restriction on her visitation on a number of grounds, including the engagement of a counselor to make recommendations on reinstating visitation. The previous parenting plan ordered the daughter to reside with her father and visit her mother every other weekend.
The mother petitioned for increased visitation when she married several years later. The father petitioned to decrease her visitation, alleging physical and emotional abuse of the daughter, domestic violence in the mother’s home, and abusive use of conflict. The trial court granted the father’s petition and suspended the mother’s visitation for 45 days.
The child was diagnosed with post-traumatic stress disorder, adjustment and anxiety disorder, and depressed mood. The health care providers found that the child’s anxiety occurred when she was supposed to visit her mother.
There was evidence of domestic violence in the mother’s previous relationships, some of which happened before the entry of the parenting plan. The father’s girlfriend testified about the mother’s statement that her boyfriend may have molested the daughter. Neither the court nor the father was aware of that information when the parenting plan was entered. A doctor testified the child said her stepfather had put her in the running shower with her clothes on as punishment, but the mother testified she had done it.
The court restricted the mother’s time with the child, finding emotional abuse and exposure to domestic violence. The court also requested that a mental health counselor work with the child to support reintegration of the mother back into her life.
The new parenting plan stated the counselor would be engaged to develop a plan for reintegration. It contemplated initial meetings between the child and the counselor, with the counselor subsequently scheduling therapeutic visits that included the mother. The plan also asked the counselor to provide recommendations on moving to one-on-one visits. The court also contemplated short visits at the mother’s home eventually, with “a very slow integration to a normalized schedule of residential time” under the previous parenting plan.
The mother appealed, arguing an improper delegation of the court’s discretion to the counselor, an error in restricting her residential time, and an error in making findings of exposure to domestic violence based on impermissible testimony.
The appeals court found no improper delegation. The parenting plan clearly stopped visitation until a counselor addressed the child’s anxiety and PTSD. It directed the counselor to make recommendations. Those recommendations could only serve to increase the mother’s visitation. The appeals court found the order did not state that the trial court would not be making the final decision regarding greater visitation. Furthermore, the mother could challenge any changes made based on the counselor’s recommendations.
The court also noted that limitations or restrictions on residential time are required if the court finds the parent, or someone residing with the parent, has engaged in certain conduct, including emotional abuse of the child.
The trial court found the child had been emotionally abused in her mother’s care, based on testimony from the child’s health care providers. There was testimony that the child’s anxiety was a result of exposure to “excessive discipline” and that she did not “trust her mother to keep her safe.” The trial court may also have considered the shower incident excessive discipline and emotional abuse. The appeals court found no abuse of discretion in the trial court’s finding that the mother or her husband had emotionally abused the child or in the limitation of the mother’s visitation as a result.
A court may also order restrictions if it finds substantial evidence of a danger of harm to the child. The court must make a particularized finding of a specific level of harm. There had been testimony of violations of the parenting plan prohibiting the child from being with the mother’s then-boyfriend and evidence that the boyfriend had been abusive to the mother and her children. There was also evidence that another of the mother’s previous boyfriends had allegedly abused the child. There was also testimony that a third previous boyfriend had abused the mother and one of her other children. The appeals court found it reasonable for the trial court to find the child had been exposed to domestic violence and therefore limit visitation.
The mother also argued the evidence presented at the trial had been related to matters that occurred before the entry of the previous parenting plan. The husband argued that the events occurred after the parenting plan was entered or that the evidence was not known at the time the parenting plan was created. The appeals court noted that the alleged abuse about which the father’s girlfriend testified had not been known to the court at the time the parenting plan was entered. Additionally, the mother’s relationship with the man who allegedly abused her and her other child occurred after the entry of the previous parenting plan. The trial court could therefore properly consider the information before it regarding these relationships to find the child had been exposed to domestic violence.
The appeals court found the child’s emotional and mental distress in the face of visiting her mother made the modification appropriate. There was substantial evidence supporting the court’s findings to limit visitation. The appeals court affirmed.
Although the mother in this case temporarily lost visitation, the court put in place a means for her to work toward getting it back, if it is in the child’s best interest. A fundamental principle of family law is protecting the best interest of the child. If you are facing a custody or visitation issue, our Washington visitation attorneys can help protect your rights. Call Blair & Kim, PLLC at (206) 622-6562 or contact us online to discuss your case.
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