Washington Parenting Plan Restrictions Due to Domestic Violence

When a court finds a parent has engaged in a history of acts of domestic violence, a permanent Washington parent plan may not require mutual decision-making or a dispute resolution process other than court action if the court finds a parent has a history of acts of domestic violence.  RCW 26.09.191. A mother recently challenged a parenting plan that required joint decision making for health care and the court’s failure to enter a restraining order after she presented substantial evidence of a history of domestic violence.

According to the appeals court’s opinion, the parties got married in 2013 and had a child in 2014.  They divorced in August 2015.  The parenting plan acknowledged a “[h]istory of intimidation and verbal abuse. . . in the presence of [the] child,” but the trial court did not impose restrictions.

The father started a relationship with another woman in February 2015 and they had a child.

The mother obtained a restraining order against the father in late 2018 based on a number of behaviors, including harassing calls and texts, throwing the child’s things in the mother’s yard, and threatening to stop contact with the child.

The mother petitioned to modify the parenting plan and agreed modification when she learned the father’s former girlfriend obtained a restraining order against him.  The mother requested restrictions pursuant to RCW 26.09.191 based on domestic violence, abusive use of conflict, and emotional impairment.  She also asked the court to order a mental health evaluation and require the father to get treatment.  She asked for sole-decision making authority for the child.  Additionally, she petitioned for a restraining order.

The mother alleged the father verbally threatened her and was physically violent while they were married.  She testified about a number of incidents, including the father throwing beer cans at her when she was pregnant.  The mother and child moved out.  The mother ultimately began the divorce process and sought support services for survivors of domestic violence.

The mother testified the father had behaved abusively toward the child by shoving things in the child’s face and yelling at the mother in the child’s presence.  She testified he had not been verbally abusive toward the child, but not physically abusive.

The father’s former girlfriend also testified the child was abused or saw the father emotionally or verbally abuse her at nearly all his visits.  She testified the father frequently threw things, threatened to stop seeing the child, and lost his temper often.  She said the father frequently told her he fantasized about killing the mother, including shooting her or pushing her out of a moving car.  She also said she saw the pattern of emotional abuse of the child “as consistent with that pattern that escalates to physical violence.”

The father testified about receiving counseling and domestic violence treatment.  He testified he regretted his previous behavior and wanted to rebuild the relationship with his son.

The trial court stated it did not find sufficient evidence of a history of domestic violence to support a .191 restriction. The court noted that many of the physical incidents described in the testimony were “pretty old history” and the father had taken “substantial steps to get help.”

The trial court found the father used conflict in a way that might seriously damage the child’s psychological development.  The trial court also found he had completed a parenting class and a domestic violence treatment program and had taken steps to address the problems that led to abusive use of conflict.  The court also found it was in the child’s best interest to have “consistent residential time with his father,” based on the testimony and a letter from the child’s counselor recommending consistent contact.  The court ordered the father to pursue mental health treatment.

The parenting plan provided for a phased residential schedule, conditioned on the father’s compliance.  He had limited visitation for the first 180 days. If he complied with the counseling, anger management, and mental health evaluation requirements, he would get more extensive visitation.  The mother was named primary decision-maker for school and educational decisions, but health care decisions were subject to joint decision-making.  The court did not include a restraining order.

The mother appealed, arguing the trial court erred in not imposing the RCW 26.09.191 restrictions or entering a restraining order.

The appeals court noted there was substantial evidence of a history of domestic violence, including a previous finding of intimidation and verbal abuse and a prior restraining order.  The mother and the father’s former girlfriend both testified about physical violence, threats, and verbal abuse.  The ex-girlfriend testified the father told her about fantasizing about harming or killing the mother.  She also testified the child witnessed abuse or was abused during his visits.  The appeals court found the trial court had abused its discretion in not finding the father engaged in a history of acts of domestic violence requiring .191 restrictions.  The appeals court reversed and remanded for the trial court to order sole decision-making for all subjects.

The mother also argued the trial court erred in not imposing a restraining order.  The mother had requested a restraining order to prohibit the father from entering her home or workplace, disturbing the peace, or threatening or hurting her or the child.  She had presented substantial evidence of domestic violence, but the trial court failed to consider the request.  The appeals court found this failure to exercise discretion was an abuse of discretion.  The appeals court remanded, with instructions to the trial court to consider the request in light of the father’s history of domestic violence and testimony that he had confessed to fantasizing about killing the mother.

This case shows how domestic violence can affect custody matters. If you are dealing with a custody case involving a history of domestic violence, a skilled Washington custody attorney can help.  Blair & Kim, PLLC, also has extensive experience handling civil protection orders.  Call us at (206) 622-6562 to set up a consultation to discuss your case.


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