(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 (iv) 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 (iv) 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. This paragraph allows the court limited discretion, subject to the legislature’s determination that the court shall not have discretion to allow contact between a parent and a child when (c) through (l) and (m)(ii) apply. In essence, the legislature has commanded that in no circumstances should a court not limit contact between a parent because if (c) through (l) and (m)(ii) 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. The factors listed in Section 3 (a) – (g) are discretionary and the legislature has given the trial level judge making the initial or permanent parenting plan decision the discretion to limit a parent’s time if the judge finds one of those factors. Thus, even if the court finds one of these factors the court does not have to limit the parenting time of the other parent as a matter of law, but can if the judge believes it is appropriate to do so. In reality, if a court finds a limiting factor stated above, they are going to take some form of limitation action on the parent.
(4) In cases involving allegations of limiting factors under subsection (2)(a)(ii) and (iii) of this section, both parties shall be screened to determine the appropriateness of a comprehensive assessment regarding the impact of the limiting factor on the child and the parties.
(5) In entering a permanent parenting plan, the court shall not draw any presumptions from the provisions of the temporary parenting plan.
(6) 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. This is an interesting point that I believe is not given as much weight as it should in the early (temporary) parenting plan stages. In Clark County, Vancouver, WA, testimony is not taken and the decisions of the court regarding temporary orders are made using declarations. Routinely evidence is placed in the declaration that are clearly objectionable but from a practical issue have already been “seen” by the commissioner, and so even if the other party objects, sometimes from a practical point you wonder if that inappropriate evidence: Hearsay, unsworn materials attached to declarations, etc., has had any affect on the decision making of the commissioner when arguably it should not be considered in any way.
(7) For the purposes of this section:
(a) "A parent's child" means that parent's natural child, adopted child, or stepchild; and
(b) "Social worker" means a person with a master's or further advanced degree from a social work educational program accredited and approved as provided in RCW 18.320.010.
Nicholas "Nick" Wood - Law Office of Nicholas Wood, P.S.
Nick Wood received his J.D. in 1999 from Lewis and Clark's Northwestern School of Law in Portland, Oregon. The Law Office of Nicholas Wood, P.S. has represented clients for various criminal defense matters since 2006.