S.P.A.R.C.

Separated Parenting Access & Resource Center
crazy gamesriddles and jokesfunny picturesdeath psychic!mad triviafunny & odd!pregnancy testshape testwin custodyrecipes

Author Topic: Offer Judge an alternative  (Read 661 times)

crayiii

  • Full Member
  • ***
  • Posts: 210
  • Karma: 0
    • View Profile
Offer Judge an alternative
« on: May 20, 2005, 04:55:08 PM »
I have a hearing on June 3 for my temp parenting plan and a request to drop the TRO.

The Temp Parenting Plan is asking for me to be assigned custody.

Should I submit a new declaration that offers an alternative plan giving me visitation in case the judge doesn't approve my plan?

I'm a bit worried that I will show up at the hearing and the judge will deny the parenting plan and since there have been no options presented to him end it there and I won't even get visitation set up at that time.


Fobbed-Fodder

  • Guest
RE: Offer Judge an alternative
« Reply #1 on: May 20, 2005, 06:42:25 PM »
These are the statutes that you need to learn inside out, because herein lies all of the courts discretion granted by the Washington Legislature.  Gender and racial bias is up to each court as well.

You can compile and download complete Title 26 RCW - Domestic Relations chapters here: http://www.leg.wa.gov/rcw/index.cfm?fuseaction=title&title=26

In my case, once the court understood that I knew what the game rules were, they were far more willing to listen to my demands regarding my childs best interest.

Below are the mandatory Washington pattern forms to use

WPF DR 01.0400    Parenting Plan; Proposed (PPP), Temporary (PPT), Final Order (PP)   7/2003

WPF DR 04.0100    Motion and Declaration for Temporary Order (MTAF)   9/2001

WPF DR 04.0120    Declaration in Support of Parenting Plan (DCLR)   7/2003


TEMPORARY PARENTING PLAN

RCW 26.09.197
Issuance of temporary parenting plan -- Criteria.
After considering the affidavit required by RCW 26.09.194(1) and other relevant evidence presented, the court shall make a temporary parenting plan that is in the best interest of the child. In making this determination, the court shall give particular consideration to:

     (1) Which parent has taken greater responsibility during the last twelve months for performing parenting functions relating to the daily needs of the child; and

     (2) Which parenting arrangements will cause the least disruption to the child's emotional stability while the action is pending.

     The court shall also consider the factors used to determine residential provisions in the permanent parenting plan. “See (RCW 26.09.187(3)(a)(i-vii)”
[1987 c 460 § 14.]

RCW 26.09.194
Proposed temporary parenting plan -- Temporary order -- Amendment -- Vacation of order.
(1) A parent seeking a temporary order relating to parenting shall file and serve a proposed temporary parenting plan by motion. The other parent, if contesting the proposed temporary parenting plan, shall file and serve a responsive proposed parenting plan. Either parent may move to have a proposed temporary parenting plan entered as part of a temporary order. The parents may enter an agreed temporary parenting plan at any time as part of a temporary order. The proposed temporary parenting plan may be supported by relevant evidence and shall be accompanied by an affidavit or declaration which shall state at a minimum the following:

     (a) The name, address, and length of residence with the person or persons with whom the child has lived for the preceding twelve months;

     (b) The performance by each parent during the last twelve months of the parenting functions relating to the daily needs of the child;

     (c) The parents' work and child-care schedules for the preceding twelve months;

     (d) The parents' current work and child-care schedules; and

     (e) Any of the circumstances set forth in RCW 26.09.191 that are likely to pose a serious risk to the child and that warrant limitation on the award to a parent of temporary residence or time with the child pending entry of a permanent parenting plan.

     (2) At the hearing, the court shall enter a temporary parenting order incorporating a temporary parenting plan which includes:

     (a) A schedule for the child's time with each parent when appropriate;

     (b) Designation of a temporary residence for the child;

     (c) Allocation of decision-making authority, if any. Absent allocation of decision-making authority consistent with RCW 26.09.187(2), neither party shall make any decision for the child other than those relating to day-to-day or emergency care of the child, which shall be made by the party who is present with the child;

     (d) Provisions for temporary support for the child; and

     (e) Restraining orders, if applicable, under RCW 26.09.060.

     (3) A parent may make a motion for an order to show cause and the court may enter a temporary order, including a temporary parenting plan, upon a showing of necessity.

     (4) A parent may move for amendment of a temporary parenting plan, and the court may order amendment to the temporary parenting plan, if the amendment conforms to the limitations of RCW 26.09.191 and is in the best interest of the child.

     (5) If a proceeding for dissolution of marriage, legal separation, or declaration of invalidity is dismissed, any temporary order or temporary parenting plan is vacated.
[1987 c 460 § 13.]




PERMANENT PARENTING PLAN

RCW 26.09.181
Procedure for determining permanent parenting plan.
(1) SUBMISSION OF PROPOSED PLANS. (a) In any proceeding under this chapter, except a modification, each party shall file and serve a proposed permanent parenting plan on or before the earliest date of:

     (i) Thirty days after filing and service by either party of a notice for trial; or

     (ii) One hundred eighty days after commencement of the action which one hundred eighty day period may be extended by stipulation of the parties.

     (b) In proceedings for a modification of custody or a parenting plan, a proposed parenting plan shall be filed and served with the motion for modification and with the response to the motion for modification.

     (c) No proposed permanent parenting plan shall be required after filing of an agreed permanent parenting plan, after entry of a final decree, or after dismissal of the cause of action.

     (d) A party who files a proposed parenting plan in compliance with this section may move the court for an order of default adopting that party's parenting plan if the other party has failed to file a proposed parenting plan as required in this section.

     (2) AMENDING PROPOSED PARENTING PLANS. Either party may file and serve an amended proposed permanent parenting plan according to the rules for amending pleadings.

     (3) GOOD FAITH PROPOSAL. The parent submitting a proposed parenting plan shall attach a verified statement that the plan is proposed by that parent in good faith.

     (4) AGREED PERMANENT PARENTING PLANS. The parents may make an agreed permanent parenting plan.

     (5) MANDATORY SETTLEMENT CONFERENCE. Where mandatory settlement conferences are provided under court rule, the parents shall attend a mandatory settlement conference. The mandatory settlement conference shall be presided over by a judge or a court commissioner, who shall apply the criteria in RCW 26.09.187 and 26.09.191. The parents shall in good faith review the proposed terms of the parenting plans and any other issues relevant to the cause of action with the presiding judge or court commissioner. Facts and legal issues that are not then in dispute shall be entered as stipulations for purposes of final hearing or trial in the matter.

     (6) TRIAL SETTING. Trial dates for actions involving minor children brought under this chapter shall receive priority.

     (7) ENTRY OF FINAL ORDER. The final order or decree shall be entered not sooner than ninety days after filing and service.

     This subsection does not apply to decrees of legal separation.
[1989 2nd ex.s. c 2 § 1; 1989 c 375 § 8; 1987 c 460 § 7.]



RCW 26.09.184
Permanent parenting plan.
(1) OBJECTIVES. The objectives of the permanent parenting plan are to:

     (a) Provide for the child's physical care;

     (b) Maintain the child's emotional stability;

     (c) Provide for the child's changing needs as the child grows and matures, in a way that minimizes the need for future modifications to the permanent parenting plan;

     (d) Set forth the authority and responsibilities of each parent with respect to the child, consistent with the criteria in RCW 26.09.187 and 26.09.191;

     (e) Minimize the child's exposure to harmful parental conflict;

     (f) Encourage the parents, where appropriate under RCW 26.09.187 and 26.09.191, to meet their responsibilities to their minor children through agreements in the permanent parenting plan, rather than by relying on judicial intervention; and

     (g) To otherwise protect the best interests of the child consistent with RCW 26.09.002.

     (2) CONTENTS OF THE PERMANENT PARENTING PLAN. The permanent parenting plan shall contain provisions for resolution of future disputes between the parents, allocation of decision-making authority, and residential provisions for the child.

     (3) DISPUTE RESOLUTION. A process for resolving disputes, other than court action, shall be provided unless precluded or limited by RCW 26.09.187 or 26.09.191. A dispute resolution process may include counseling, mediation, or arbitration by a specified individual or agency, or court action. In the dispute resolution process:

     (a) Preference shall be given to carrying out the parenting plan;

     (b) The parents shall use the designated process to resolve disputes relating to implementation of the plan, except those related to financial support, unless an emergency exists;

     (c) A written record shall be prepared of any agreement reached in counseling or mediation and of each arbitration award and shall be provided to each party;

     (d) If the court finds that a parent has used or frustrated the dispute resolution process without good reason, the court shall award attorneys' fees and financial sanctions to the prevailing parent;

     (e) The parties have the right of review from the dispute resolution process to the superior court; and

     (f) The provisions of (a) through (e) of this subsection shall be set forth in the decree.

     (4) ALLOCATION OF DECISION-MAKING AUTHORITY.

     (a) The plan shall allocate decision-making authority to one or both parties regarding the children's education, health care, and religious upbringing. The parties may incorporate an agreement related to the care and growth of the child in these specified areas, or in other areas, into their plan, consistent with the criteria in RCW 26.09.187 and 26.09.191. Regardless of the allocation of decision-making in the parenting plan, either parent may make emergency decisions affecting the health or safety of the child.

     (b) Each parent may make decisions regarding the day-to-day care and control of the child while the child is residing with that parent.

     (c) When mutual decision making is designated but cannot be achieved, the parties shall make a good-faith effort to resolve the issue through the dispute resolution process.

     (5) RESIDENTIAL PROVISIONS FOR THE CHILD. The plan shall include a residential schedule which designates in which parent's home each minor child shall reside on given days of the year, including provision for holidays, birthdays of family members, vacations, and other special occasions, consistent with the criteria in RCW 26.09.187 and 26.09.191.

     (6) PARENTS' OBLIGATION UNAFFECTED. If a parent fails to comply with a provision of a parenting plan or a child support order, the other parent's obligations under the parenting plan or the child support order are not affected. Failure to comply with a provision in a parenting plan or a child support order may result in a finding of contempt of court, under RCW 26.09.160.

     (7) PROVISIONS TO BE SET FORTH IN PERMANENT PARENTING PLAN. The permanent parenting plan shall set forth the provisions of subsections (3)(a) through (c), (4)(b) and (c), and (6) of this section.
[1991 c 367 § 7; 1989 c 375 § 9; 1987 c 460 § 8.]
NOTES:
     Severability -- Effective date -- Captions not law -- 1991 c 367: See notes following RCW 26.09.015.
Custody, designation of for purposes of other statutes: RCW 26.09.285.
Failure to comply with decree or temporary injunction -- Obligations not suspended: RCW 26.09.160.




RCW 26.09.187
Criteria for establishing permanent parenting plan.
(1) DISPUTE RESOLUTION PROCESS. The court shall not order a dispute resolution process, except court action, when it finds that any limiting factor under RCW 26.09.191 applies, or when it finds that either parent is unable to afford the cost of the proposed dispute resolution process. If a dispute resolution process is not precluded or limited, then in designating such a process the court shall consider all relevant factors, including:

     (a) Differences between the parents that would substantially inhibit their effective participation in any designated process;

     (b) The parents' wishes or agreements and, if the parents have entered into agreements, whether the agreements were made knowingly and voluntarily; and

     (c) Differences in the parents' financial circumstances that may affect their ability to participate fully in a given dispute resolution process.

     (2) ALLOCATION OF DECISION-MAKING AUTHORITY.

     (a) AGREEMENTS BETWEEN THE PARTIES. The court shall approve agreements of the parties allocating decision-making authority, or specifying rules in the areas listed in RCW 26.09.184(4)(a), when it finds that:

     (i) The agreement is consistent with any limitations on a parent's decision-making authority mandated by RCW 26.09.191; and

     (ii) The agreement is knowing and voluntary.

     (b) SOLE DECISION-MAKING AUTHORITY. The court shall order sole decision-making to one parent when it finds that:

     (i) A limitation on the other parent's decision-making authority is mandated by RCW 26.09.191;

     (ii) Both parents are opposed to mutual decision making;

     (iii) One parent is opposed to mutual decision making, and such opposition is reasonable based on the criteria in (c) of this subsection;

     (c) MUTUAL DECISION-MAKING AUTHORITY. Except as provided in (a) and (b) of this subsection, the court shall consider the following criteria in allocating decision-making authority:

     (i) The existence of a limitation under RCW 26.09.191;

     (ii) The history of participation of each parent in decision making in each of the areas in RCW 26.09.184(4)(a);

     (iii) Whether the parents have a demonstrated ability and desire to cooperate with one another in decision making in each of the areas in RCW 26.09.184(4)(a); and

     (iv) The parents' geographic proximity to one another, to the extent that it affects their ability to make timely mutual decisions.

     (3) RESIDENTIAL PROVISIONS.

     (a) The court shall make residential provisions for each child which encourage each parent to maintain a loving, stable, and nurturing relationship with the child, consistent with the child's developmental level and the family's social and economic circumstances. The child's residential schedule shall be consistent with RCW 26.09.191. Where the limitations of RCW 26.09.191 are not dispositive of the child's residential schedule, the court shall consider the following factors:

     (i) The relative strength, nature, and stability of the child's relationship with each parent, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;

     (ii) The agreements of the parties, provided they were entered into knowingly and voluntarily;

     (iii) Each parent's past and potential for future performance of parenting functions;

     (iv) The emotional needs and developmental level of the child;

     (v) The child's relationship with siblings and with other significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities;

     (vi) The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and

     (vii) Each parent's employment schedule, and shall make accommodations consistent with those schedules.

     Factor (i) shall be given the greatest weight.

     (b) The court may order that a child frequently alternate his or her residence between the households of the parents for brief and substantially equal intervals of time only if the court finds the following:

     (i) No limitation exists under RCW 26.09.191;

     (ii)(A) The parties have agreed to such provisions and the agreement was knowingly and voluntarily entered into; or

     (B) The parties have a satisfactory history of cooperation and shared performance of parenting functions; the parties are available to each other, especially in geographic proximity, to the extent necessary to ensure their ability to share performance of the parenting functions; and

     (iii) The provisions are in the best interests of the child.
[1989 c 375 § 10; 1987 c 460 § 9.]
NOTES:
Custody, designation of for purposes of other statutes: RCW 26.09.285.



RCW 26.09.191
Restrictions in temporary or permanent parenting plans.
(1) The permanent parenting plan shall not require mutual decision-making or designation of a dispute resolution process other than court action if it is found that a parent has engaged in any of the following conduct: (a) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions; (b) physical, sexual, or a pattern of emotional abuse of a child; or (c) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm.

     (2)(a) The parent's residential time with the child shall be limited if it is found that the parent has engaged in any of the following conduct: (i) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions; (ii) physical, sexual, or a pattern of emotional abuse of a child; (iii) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm; or (iv) the parent has been convicted as an adult of a sex offense under:

     (A) RCW 9A.44.076 if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (d) of this subsection;

     (B) RCW 9A.44.079 if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (d) of this subsection;

     (C) RCW 9A.44.086 if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (d) of this subsection;

     (D) RCW 9A.44.089;

     (E) RCW 9A.44.093;

     (F) RCW 9A.44.096;

     (G) RCW 9A.64.020 (1) or (2) if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (d) of this subsection;

     (H) Chapter 9.68A RCW;

     (I) Any predecessor or antecedent statute for the offenses listed in (a)(iv)(A) through (H) of this subsection;

     (J) Any statute from any other jurisdiction that describes an offense analogous to the offenses listed in (a)(iv)(A) through (H) of this subsection.

     This subsection (2)(a) shall not apply when (c) or (d) of this subsection applies.

     (b) The parent's residential time with the child shall be limited if it is found that the parent resides with a person who has engaged in any of the following conduct: (i) Physical, sexual, or a pattern of emotional abuse of a child; (ii) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault that causes grievous bodily harm or the fear of such harm; or (iii) the person has been convicted as an adult or as a juvenile has been adjudicated of a sex offense under:

     (A) RCW 9A.44.076 if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (e) of this subsection;

     (B) RCW 9A.44.079 if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (e) of this subsection;

     (C) RCW 9A.44.086 if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (e) of this subsection;

     (D) RCW 9A.44.089;

     (E) RCW 9A.44.093;

     (F) RCW 9A.44.096;

     (G) RCW 9A.64.020 (1) or (2) if, because of the difference in age between the offender and the victim, no rebuttable presumption exists under (e) of this subsection;

     (H) Chapter 9.68A RCW;

     (I) Any predecessor or antecedent statute for the offenses listed in (b)(iii)(A) through (H) of this subsection;

     (J) Any statute from any other jurisdiction that describes an offense analogous to the offenses listed in (b)(iii)(A) through (H) of this subsection.

     This subsection (2)(b) shall not apply when (c) or (e) of this subsection applies.

     (c) If a parent has been found to be a sexual predator under chapter 71.09 RCW or under an analogous statute of any other jurisdiction, the court shall restrain the parent from contact with a child that would otherwise be allowed under this chapter. If a parent resides with an adult or a juvenile who has been found to be a sexual predator under chapter 71.09 RCW or under an analogous statute of any other jurisdiction, the court shall restrain the parent from contact with the parent's child except contact that occurs outside that person's presence.

     (d) There is a rebuttable presumption that a parent who has been convicted as an adult of a sex offense listed in (d)(i) through (ix) of this subsection poses a present danger to a child. Unless the parent rebuts this presumption, the court shall restrain the parent from contact with a child that would otherwise be allowed under this chapter:

     (i) RCW 9A.64.020 (1) or (2), provided that the person convicted was at least five years older than the other person;

     (ii) RCW 9A.44.073;

     (iii) RCW 9A.44.076, provided that the person convicted was at least eight years older than the victim;

     (iv) RCW 9A.44.079, provided that the person convicted was at least eight years older than the victim;

     (v) RCW 9A.44.083;

     (vi) RCW 9A.44.086, provided that the person convicted was at least eight years older than the victim;

     (vii) RCW 9A.44.100;

     (viii) Any predecessor or antecedent statute for the offenses listed in (d)(i) through (vii) of this subsection;

     (ix) Any statute from any other jurisdiction that describes an offense analogous to the offenses listed in (d)(i) through (vii) of this subsection.

     (e) There is a rebuttable presumption that a parent who resides with a person who, as an adult, has been convicted, or as a juvenile has been adjudicated, of the sex offenses listed in (e)(i) through (ix) of this subsection places a child at risk of abuse or harm when that parent exercises residential time in the presence of the convicted or adjudicated person. Unless the parent rebuts the presumption, the court shall restrain the parent from contact with the parent's child except for contact that occurs outside of the convicted or adjudicated person's presence:

     (i) RCW 9A.64.020 (1) or (2), provided that the person convicted was at least five years older than the other person;

     (ii) RCW 9A.44.073;

     (iii) RCW 9A.44.076, provided that the person convicted was at least eight years older than the victim;

     (iv) RCW 9A.44.079, provided that the person convicted was at least eight years older than the victim;

     (v) RCW 9A.44.083;

     (vi) RCW 9A.44.086, provided that the person convicted was at least eight years older than the victim;

     (vii) RCW 9A.44.100;

     (viii) Any predecessor or antecedent statute for the offenses listed in (e)(i) through (vii) of this subsection;

     (ix) Any statute from any other jurisdiction that describes an offense analogous to the offenses listed in (e)(i) through (vii) of this subsection.

     (f) The presumption established in (d) of this subsection may be rebutted only after a written finding that:

     (i) If the child was not the victim of the sex offense committed by the parent requesting residential time, (A) contact between the child and the offending parent is appropriate and poses minimal risk to the child, and (B) the offending parent has successfully engaged in treatment for sex offenders or is engaged in and making progress in such treatment, if any was ordered by a court, and the treatment provider believes such contact is appropriate and poses minimal risk to the child; or

     (ii) If the child was the victim of the sex offense committed by the parent requesting residential time, (A) contact between the child and the offending parent is appropriate and poses minimal risk to the child, (B) if the child is in or has been in therapy for victims of sexual abuse, the child's counselor believes such contact between the child and the offending parent is in the child's best interest, and (C) the offending parent has successfully engaged in treatment for sex offenders or is engaged in and making progress in such treatment, if any was ordered by a court, and the treatment provider believes such contact is appropriate and poses minimal risk to the child.

     (g) The presumption established in (e) of this subsection may be rebutted only after a written finding that:

     (i) If the child was not the victim of the sex offense committed by the person who is residing with the parent requesting residential time, (A) contact between the child and the parent residing with the convicted or adjudicated person is appropriate and that parent is able to protect the child in the presence of the convicted or adjudicated person, and (B) the convicted or adjudicated person has successfully engaged in treatment for sex offenders or is engaged in and making progress in such treatment, if any was ordered by a court, and the treatment provider believes such contact is appropriate and poses minimal risk to the child; or

     (ii) If the child was the victim of the sex offense committed by the person who is residing with the parent requesting residential time, (A) contact between the child and the parent in the presence of the convicted or adjudicated person is appropriate and poses minimal risk to the child, (B) if the child is in or has been in therapy for victims of sexual abuse, the child's counselor believes such contact between the child and the parent residing with the convicted or adjudicated person in the presence of the convicted or adjudicated person is in the child's best interest, and (C) the convicted or adjudicated person has successfully engaged in treatment for sex offenders or is engaged in and making progress in such treatment, if any was ordered by a court, and the treatment provider believes contact between the parent and child in the presence of the convicted or adjudicated person is appropriate and poses minimal risk to the child.

     (h) If the court finds that the parent has met the burden of rebutting the presumption under (f) of this subsection, the court may allow a parent who has been convicted as an adult of a sex offense listed in (d)(i) through (ix) of this subsection to have residential time with the child supervised by a neutral and independent adult and pursuant to an adequate plan for supervision of such residential time. The court shall not approve of a supervisor for contact between the child and the parent unless the court finds, based on the evidence, that the supervisor is willing and capable of protecting the child from harm. The court shall revoke court approval of the supervisor upon finding, based on the evidence, that the supervisor has failed to protect the child or is no longer willing or capable of protecting the child.

     (i) If the court finds that the parent has met the burden of rebutting the presumption under (g) of this subsection, the court may allow a parent residing with a person who has been adjudicated as a juvenile of a sex offense listed in (e)(i) through (ix) of this subsection to have residential time with the child in the presence of the person adjudicated as a juvenile, supervised by a neutral and independent adult and pursuant to an adequate plan for supervision of such residential time. The court shall not approve of a supervisor for contact between the child and the parent unless the court finds, based on the evidence, that the supervisor is willing and capable of protecting the child from harm. The court shall revoke court approval of the supervisor upon finding, based on the evidence, that the supervisor has failed to protect the child or is no longer willing or capable of protecting the child.

     (j) If the court finds that the parent has met the burden of rebutting the presumption under (g) of this subsection, the court may allow a parent residing with a person who, as an adult, has been convicted of a sex offense listed in (e)(i) through (ix) of this subsection to have residential time with the child in the presence of the convicted person supervised by a neutral and independent adult and pursuant to an adequate plan for supervision of such residential time. The court shall not approve of a supervisor for contact between the child and the parent unless the court finds, based on the evidence, that the supervisor is willing and capable of protecting the child from harm. The court shall revoke court approval of the supervisor upon finding, based on the evidence, that the supervisor has failed to protect the child or is no longer willing or capable of protecting the child.

     (k) A court shall not order unsupervised contact between the offending parent and a child of the offending parent who was sexually abused by that parent. A court may order unsupervised contact between the offending parent and a child who was not sexually abused by the parent after the presumption under (d) of this subsection has been rebutted and supervised residential time has occurred for at least two years with no further arrests or convictions of sex offenses involving children under chapter 9A.44 RCW, RCW 9A.64.020, or chapter 9.68A RCW and (i) the sex offense of the offending parent was not committed against a child of the offending parent, and (ii) the court finds that unsupervised contact between the child and the offending parent is appropriate and poses minimal risk to the child, after consideration of the testimony of a state-certified therapist, mental health counselor, or social worker with expertise in treating child sexual abuse victims who has supervised at least one period of residential time between the parent and the child, and after consideration of evidence of the offending parent's compliance with community supervision requirements, if any. If the offending parent was not ordered by a court to participate in treatment for sex offenders, then the parent shall obtain a psychosexual evaluation conducted by a certified sex offender treatment provider or a certified affiliate sex offender treatment provider indicating that the offender has the lowest likelihood of risk to reoffend before the court grants unsupervised contact between the parent and a child.

     (l) A court may order unsupervised contact between the parent and a child which may occur in the presence of a juvenile adjudicated of a sex offense listed in (e)(i) through (ix) of this subsection who resides with the parent after the presumption under (e) of this subsection has been rebutted and supervised residential time has occurred for at least two years during which time the adjudicated juvenile has had no further arrests, adjudications, or convictions of sex offenses involving children under chapter 9A.44 RCW, RCW 9A.64.020, or chapter 9.68A RCW, and (i) the court finds that unsupervised contact between the child and the parent that may occur in the presence of the adjudicated juvenile is appropriate and poses minimal risk to the child, after consideration of the testimony of a state-certified therapist, mental health counselor, or social worker with expertise in treatment of child sexual abuse victims who has supervised at least one period of residential time between the parent and the child in the presence of the adjudicated juvenile, and after consideration of evidence of the adjudicated juvenile's compliance with community supervision or parole requirements, if any. If the adjudicated juvenile was not ordered by a court to participate in treatment for sex offenders, then the adjudicated juvenile shall obtain a psychosexual evaluation conducted by a certified sex offender treatment provider or a certified affiliate sex offender treatment provider indicating that the adjudicated juvenile has the lowest likelihood of risk to reoffend before the court grants unsupervised contact between the parent and a child which may occur in the presence of the adjudicated juvenile who is residing with the parent.

     (m)(i) The limitations imposed by the court under (a) or (b) of this subsection shall be reasonably calculated to protect the child from the physical, sexual, or emotional abuse or harm that could result if the child has contact with the parent requesting residential time. If the court expressly finds based on the evidence that limitations on the residential time with the child will not adequately protect the child from the harm or abuse that could result if the child has contact with the parent requesting residential time, the court shall restrain the parent requesting residential time from all contact with the child.

     (ii) The court shall not enter an order under (a) of this subsection allowing a parent to have contact with a child if the parent has been found by clear and convincing evidence in a civil action or by a preponderance of the evidence in a dependency action to have sexually abused the child, except upon recommendation by an evaluator or therapist for the child that the child is ready for contact with the parent and will not be harmed by the contact. The court shall not enter an order allowing a parent to have contact with the child in the offender's presence if the parent resides with a person who has been found by clear and convincing evidence in a civil action or by a preponderance of the evidence in a dependency action to have sexually abused a child, unless the court finds that the parent accepts that the person engaged in the harmful conduct and the parent is willing to and capable of protecting the child from harm from the person.

     (iii) If the court limits residential time under (a) or (b) of this subsection to require supervised contact between the child and the parent, the court shall not approve of a supervisor for contact between a child and a parent who has engaged in physical, sexual, or a pattern of emotional abuse of the child unless the court finds based upon the evidence that the supervisor accepts that the harmful conduct occurred and is willing to and capable of protecting the child from harm. The court shall revoke court approval of the supervisor upon finding, based on the evidence, that the supervisor has failed to protect the child or is no longer willing to or capable of protecting the child.

     (n) If the court expressly finds based on the evidence that contact between the parent and the child will not cause physical, sexual, or emotional abuse or harm to the child and that the probability that the parent's or other person's harmful or abusive conduct will recur is so remote that it would not be in the child's best interests to apply the limitations of (a), (b), and (m)(i) and (iii) of this subsection, or if the court expressly finds that the parent's conduct did not have an impact on the child, then the court need not apply the limitations of (a), (b), and (m)(i) and (iii) of this subsection. The weight given to the existence of a protection order issued under chapter 26.50 RCW as to domestic violence is within the discretion of the court. This subsection shall not apply when (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), and (m)(ii) of this subsection apply.

     (3) A parent's involvement or conduct may have an adverse effect on the child's best interests, and the court may preclude or limit any provisions of the parenting plan, if any of the following factors exist:

     (a) A parent's neglect or substantial nonperformance of parenting functions;

     (b) A long-term emotional or physical impairment which interferes with the parent's performance of parenting functions as defined in RCW 26.09.004;

     (c) A long-term impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting functions;

     (d) The absence or substantial impairment of emotional ties between the parent and the child;

     (e) The abusive use of conflict by the parent which creates the danger of serious damage to the child's psychological development;

     (f) A parent has withheld from the other parent access to the child for a protracted period without good cause; or

     (g) Such other factors or conduct as the court expressly finds adverse to the best interests of the child.

     (4) In entering a permanent parenting plan, the court shall not draw any presumptions from the provisions of the temporary parenting plan.

     (5) In determining whether any of the conduct described in this section has occurred, the court shall apply the civil rules of evidence, proof, and procedure.

     (6) For the purposes of this section, a parent's child means that parent's natural child, adopted child, or stepchild.
[2004 c 38 § 12; 1996 c 303 § 1; 1994 c 267 § 1. Prior: 1989 c 375 § 11; 1989 c 326 § 1; 1987 c 460 § 10.]
NOTES:
     Effective date -- 2004 c 38: See note following RCW 18.155.075.
     Effective date -- 1996 c 303: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately [March 30, 1996]." [1996 c 303 § 3.]
     Effective date -- 1994 c 267: "This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately [April 1, 1994]." [1994 c 267 § 6.]


socrateaser

  • SuperHero
  • *****
  • Posts: 5728
  • Karma: -2
    • View Profile
RE: Offer Judge an alternative
« Reply #2 on: May 21, 2005, 10:19:42 AM »
>I have a hearing on June 3 for my temp parenting plan and a
>request to drop the TRO.
>
>The Temp Parenting Plan is asking for me to be assigned
>custody.
>
>Should I submit a new declaration that offers an alternative
>plan giving me visitation in case the judge doesn't approve my
>plan?

I'm going to deliver the bad news right now. The court will not consider the mother's bad behavior in running off with the child in the first place, or trying to prevent you from seeing the child in the second, when awarding temporary custody. The judge may admonish your spouse, and give her all sorts of stern warnings, but in the end, it's all a bunch of meaningless words, because the court can only consider the child's best interests in making custody awards, and unless and until you can show expert testimony from a therapist/evaluator, as to why you are the better day to day caretaker for the child, the judge will maintain the existing status quo, which is maternal custody.

I suggest that you simply craft a reasonable plan that provides you with substantial exercise of custody with your child, and also ask the court to make orders that prevent the mother from removing the child from the current school district during the pendancy of the dissolution, so as to ensure that your ability to exercise custody is not impaired.

If what you have thus far submitted to the court is not in keeping with the above, then submit an amended temporary parenting plan, and ask that your previously submitted plan be withdrawn.

Anything else will be ignored by the court, and the more you press forward with issues that the court cannot lawfully consider, the more annoyed the judge will become, and the worse off it will be for you.

Your objective is to get as much time with your son as possible, and to try to create a real bond between you that will cause the child to want to tell the court that he wants to live with you, rather than his mother. This is EXACTLY why you are being prevented from seeing the child at the moment -- to prevent that from occuring prior to any temporary custody hearing. Because, if your son were to demand to appear in court so as to voice his desire to live with "dad," that would be the ONLY thing that would cause the court to grant you primary temporary custody (other than credible proof of ongoing child abuse on the part of your ex).

If you doubt what I'm telling you, then just read through all of the statutory text provided by fobbed-fodder, and you will see that it is ALL about keeping things quiet and not making any abrupt changes for the child's benefit.

crayiii

  • Full Member
  • ***
  • Posts: 210
  • Karma: 0
    • View Profile
RE: Offer Judge an alternative
« Reply #3 on: May 21, 2005, 07:24:18 PM »
Okay,

Her attorney called me last night and said that he has never seen such a detailed parenting plan (the one I submitted to him as a settlement).  He said that there isn't much that they dissagree with except for the transportation (she wants to meet half way).

He said that they don't want to go to trial at all.

socrateaser

  • SuperHero
  • *****
  • Posts: 5728
  • Karma: -2
    • View Profile
RE: Offer Judge an alternative
« Reply #4 on: May 21, 2005, 08:26:46 PM »
>Okay,
>
>Her attorney called me last night and said that he has never
>seen such a detailed parenting plan (the one I submitted to
>him as a settlement).  He said that there isn't much that they
>dissagree with except for the transportation (she wants to
>meet half way).
>
>He said that they don't want to go to trial at all.


socrateaser

  • SuperHero
  • *****
  • Posts: 5728
  • Karma: -2
    • View Profile
RE: Offer Judge an alternative
« Reply #5 on: May 21, 2005, 08:29:46 PM »
>>Okay,
>>
>>Her attorney called me last night and said that he has never
>>seen such a detailed parenting plan (the one I submitted to
>>him as a settlement).  He said that there isn't much that
>they
>>dissagree with except for the transportation (she wants to
>>meet half way).
>>
>>He said that they don't want to go to trial at all.

Great! So, if they will stipulate to your permanent parenting plan and agree to be bound by its terms and conditions prior to final judgment, and have it entered now as a temporary plan, and simultaneously drop the TRO, and agree to do this all before next Friday, then you may be able to see your son over the holiday.

crayiii

  • Full Member
  • ***
  • Posts: 210
  • Karma: 0
    • View Profile
RE: Offer Judge an alternative
« Reply #6 on: May 21, 2005, 08:32:45 PM »
still said no on the Holiday.  She left her 12 year old daughter behind in Alaska in December and her ex-husband went and got her a couple of weeks ago.  Her attorney said that my wife is getting her daughter over the Holiday and wants our son to see her.

There is something very strange going on with my step daughter and them being apart this long but right now I am focusing on the parenting plan.

socrateaser

  • SuperHero
  • *****
  • Posts: 5728
  • Karma: -2
    • View Profile
RE: Offer Judge an alternative
« Reply #7 on: May 21, 2005, 10:04:44 PM »
>still said no on the Holiday.  She left her 12 year old
>daughter behind in Alaska in December and her ex-husband went
>and got her a couple of weeks ago.  Her attorney said that my
>wife is getting her daughter over the Holiday and wants our
>son to see her.
>
>There is something very strange going on with my step daughter
>and them being apart this long but right now I am focusing on
>the parenting plan.

Well, this could be a sucker play, to keep you from filing for the emergency hearing, so if they're not willing to sign up for the plan immediately and give you access to the child this week, then I'd just ask the attorney, exactly that: "If you're not ready to sign, and you won't let me see my son, then how do I know that you're not just trying to stall me past Memorial Day. I want to see my son, immediately."

crayiii

  • Full Member
  • ***
  • Posts: 210
  • Karma: 0
    • View Profile
RE: Offer Judge an alternative
« Reply #8 on: May 22, 2005, 11:58:00 AM »
They are jacking me around, I have a real good (bad) feeling about that.  

So, if I head up to Spokane in the morning do I show up to court with a Motion and just try to get in to see a judge?  

socrateaser

  • SuperHero
  • *****
  • Posts: 5728
  • Karma: -2
    • View Profile
RE: Offer Judge an alternative
« Reply #9 on: May 22, 2005, 01:01:16 PM »
>They are jacking me around, I have a real good (bad) feeling
>about that.  
>
>So, if I head up to Spokane in the morning do I show up to
>court with a Motion and just try to get in to see a judge?  

The fact that you have a 6/3 hearing is very favorable to you, but I'm not very confident that you can get it pushed up sooner, because, you're not the only parent in Spokane who's got some Memorial Day visitation issue.

I wouldn't want to see you sitting around for a week, just spinning your wheels. You will never get the TRO dropped, ex parte, so, your only objective is to push the 6/3 hearing up to sometime this week.

I'd call the judge's assistant tomorrow morning and just ask if there's any way to accomplish it. He/she has the court's schedule and can tell you if there's even an opening available on the calendar.

 

Copyright © SPARC - A Parenting Advocacy Group
Use of this website does not constitute a client/attorney relationship and this site does not provide legal advice.
If you need legal assistance for divorce, child custody, or child support issues, seek advice from a divorce lawyer.