When a court makes a finding there was a history of domestic violence in a Washington custody case, it must impose limitations on the decision-making authority and in most cases the residential time of the parent who committed the domestic violence. A mother recently challenged a parenting plan based on a lack of limitations on the father in light of the court’s finding of a history of domestic violence.
The parties got married in 2019 and had a son about a year later. The mother alleged the father was abusive toward her during the relationship. According to the appeals court’s unpublished opinion, the father told the mother to “. . .get out” following an argument in June 2021. The mother then moved with the child to live with her parents in New Mexico. The father filed for divorce.
The court entered temporary orders allowing the father to have two monthly visits with the child, 25% of which were to occur in Washington. He only actually had about a visit every other month due to the expense and work conflicts.
The parties reached an agreement on the property division, so the issues at trial were related to the parenting plan.
The mother testified about incidents of physical abuse toward her by the father, some of which occurred in the presence of the child. She said he would apologize and say the abuse would end when their relationship reached certain stages, but it did not stop. She said he denied being physically abusive because he considered physical abuse to be punching in the face. She also testified that he said she was his property and he could do whatever he wanted with her.
She also testified about emotional abuse, saying he blamed their lack of intimacy for their fights and his mental health issues. He isolated her from her family because talking to them mad her “miss New Mexico more.” He would threaten to “kill [him]self” or “turn to drugs. . .” when she wanted to leave the relationship. She testified he had anger control issues and problems with alcohol.
The father generally denied the accusations against him.
The guardian ad litem (“GAL”) also testified. The GAL agreed with the mother’s request for a finding of a history of domestic violence, but nevertheless disagreed that the father was a danger to the child. The GAL recommended joint-decision making and two visits with the father each month.
The mother objected to the visits, saying neither of them could afford them. She alleged the father used travel arrangements to harm her and the child while the temporary orders were in place. She asked that the court order just one visit in Washington every three months, with any additional visits occurring in New Mexico at the father’s expense.
The court included a finding of a history of domestic violence in the final parenting plan order. It also ordered certain limitations as a result, requiring the father to comply with treatment recommended by a domestic violence assessment and prohibiting him from consuming alcohol or drugs during his residential time. There was language that removed the domestic violence treatment requirement once it was completed, but the court explained that removal of the limitation would not remove the finding of a history of domestic violence.
The court ordered joint decision-making for major decisions. The court noted that the child needed regular visits with the father. The court ordered that, before the child was school-aged, the father would get visits up to 96 hours twice per month, occurring in either New Mexico or Washington, and an optional third visit in New Mexico.
Mandatory Limitations
The mother appealed, arguing the court abused its discretion by not imposing mandatory limitations after making a finding of a history of domestic violence. Specifically, she argued the court erred by not limiting the father’s decision-making and not imposing sufficient limitations on his residential time.
Limitations on decision-making and generally residential time are mandatory when there is a finding of a history of domestic violence. RCW 26.09.191. The appeals court noted the statute specifically states a parenting plan cannot require mutual decision-making if there has been a finding of domestic violence.
The appeals court pointed out that the statute allows flexibility with regard to limitations on residential time. Residential time limitations are to be tailored to the specific circumstances to protect the child and other parent from abuse or harm. There is, however, an exception if the court expressly finds contact between the parent and child will not harm the child and the probability of abusive conduct by the parent recurring is remote, such that limitations would not be in the best interest of the child. RCW 26.09.191.
The appeals court concluded the trial court had not complied with the statutory requirements. It had not made an express finding that residential time with the father would not cause harm to the child. Without such a finding, the trial court was required to place limitations on the father’s residential time that addressed the mother’s safety. The appeals court acknowledged the court had placed some limitations on the father by requiring domestic violence treatment and prohibiting him from using alcohol and other nonprescription substances when he had the child. The court did not, however, seem to consider the mother’s safety as required by the statute.
The father was allowed up to three visits of four days per month before the child was school-aged, meaning he could have the child for as many 12 days per month. The appeals court noted arranging these visits would require substantial contact between the parents. If the father used all three visits, the child would be exchanged six times a month. The appeals court stated it could not conclude the court had placed appropriate limitations on the father’s residential time that was “reasonably calculated to provide for the safety” of the mother.
Concluding that the trial court had abused its discretion by giving the father joint decision-making and not properly limiting his residential time to protect the mother, the appeals court remanded the case to the trial court.
Number of Visits
The mother also argued the trial court abused its discretion based on the number of monthly visits it ordered. She argued the parties could not reasonably afford the number of visits ordered due to the distance. The appeals court noted that the amount and timing of visits would likely be affected when the court applied appropriate limitations on remand.
The court also awarded attorney’s fees to the mother.
Contact Blair & Kim, PLLC
Family violence can significantly affect custody, visitation, and other matters in a custody case. Blair & Kim, PLLC, is experienced in family law as well as civil protection order matters. If you are involved in a divorce or custody case involving family violence, contact us at (206) 622-6562 to schedule a consultation with a Washington family law attorney.