No Joint Decision-Making in Washington Parenting Plan When Parent Has History of Domestic Violence

Courts handling Washington child custody cases should base their determinations regarding parental responsibilities on the best interests of the child.  The court has broad discretion in determining the parenting plan.  However, the court must place restrictions on a parent’s decision-making if it finds he or she has a history of domestic violence.

A Washington appeals court recently reversed a parenting plan that allowed joint decision-making despite a history of domestic violence.  The parents divorced in 2014.  The final parenting plan required the father to meet with a doctor to address domestic violence issues before his summer residential time with the children.  The parenting plan also required him to get a certified evaluation regarding domestic violence and follow any treatment recommendations.

The plan also awarded the mother sole decision-making until the court heard from the domestic violence counselor or evaluator.  The order provided that there would be joint decision-making after the father met the requirements regarding domestic violence.

In 2015, the mother petitioned to modify the final parenting plan, alleging the father had abused the children.  She argued the abuse was a substantial change in circumstances that caused the parenting plan to be detrimental to their physical, mental, or emotional health.

The court appointed a Guardian ad Litem.  She concluded both parents provided a nurturing and loving environment for the children and recommended equal residential time and joint decision-making.  The court entered a temporary parenting plan providing for equal residential time and joint decision-making, based on her recommendations.

At trial, the Guardian ad Litem testified that her recommendations remained the same.  She testified that she remembered speaking with the mother’s domestic violence advocate and certain other people. The court would not allow the mother to call witnesses to rebut the testimony that the Guardian ad Litem had given to them.  The parties ultimately stipulated that the Guardian ad Litem had not talked to those people.

The court found both parents were “strong, nurturing, and loving parents.” The court noted that the mother had “experienced significant domestic violence” but stated it was “satisfied that [the father] underwent sufficient counseling to address the situation.”  The court entered a final order that maintained the equal residential time and joint decision-making.

The Guardian ad Litem submitted a supplemental report stating that, during her testimony, she had mistakenly read from the notes of a previous Guardian ad Litem that reflected interactions that occurred in the spring of 2013.

The mother moved for reconsideration and vacation of the judgment.  The trial court denied both motions.  The mother appealed.  Her appeal was timely as to the motion to vacate, but not as to the motion for reconsideration.

The Washington Rules of Appellate Procedure, however, allow an appellate court to waive this rule “to serve the ends of justice.…” The appellate court may only extend the time to file a notice of appeal “in extraordinary circumstances and to prevent a gross miscarriage of justice….”

The appeals court pointed out the trial court had ordered joint decision-making, even though it had expressly found a history of domestic violence.  The mother was ultimately represented by an attorney in the appeal, but she had represented herself at trial.  The appeals court found it would be a gross miscarriage of justice to uphold the ruling just because she had misunderstood the deadline.

The appeals court found the ruling was a violation of RCW 26.09.191(1), which provides that a parenting plan shall not require joint decision-making if a parent has engaged in a history of acts of domestic violence.  The trial court ordered joint decision-making, despite making a specific finding that the father had a history of domestic violence.  The appeals court found the court had abused its discretion and remanded the case so that the trial court could issue a parenting plan that complied with RCW 26.09.191.

The appeals court’s willingness to accept the untimely appeal in this case shows how significant the trial court’s error was.  The statute is very clear that a parenting plan shall not include joint decision-making when a parent has a history of acts of domestic violence.  If you are dealing with a complex custody issue, the experienced Washington child custody attorneys at Blair & Kim, PLLC, can help.  Call (206) 622-6562 to set up an appointment to discuss your case.

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