Supporters say it will help prevent dangerous parents from getting custody. Opponents fear it will do the opposite

By Kelsey Turner, InvestigateWest

Reporter Kelsey Turner covers gender-based violence and other issues relating to poverty and marginalized communities. She can be reached at kelsey@investigatewest.org.

OLYMPIA, WA – When it comes to creating parenting plans in contentious custody cases, judges, lawyers and advocates in Washington agree on one thing: State law is confusing.

The law provides no clear instructions in cases where both parents exhibit concerning behaviors that could harm the child, like domestic violence, substance use or mental illness.

“The current statute is really set up with this framework of this assumption, basically, that there’s one good parent and one bad parent,” said Elizabeth Hendren, a lawyer and advocacy counsel with the Sexual Violence Law Center, a nonprofit law firm that represents survivors in Washington. “It doesn’t give courts any sort of guidance on how to balance concerns about both parents.”

House Bill 1620 aims to change that. The bill, which was voted out of the House Civil Rights & Judiciary Committee on Feb. 7, would lay out clearer guidelines for courts on when to limit parents’ residential time and decision-making authority.

“We are providing direct guidance to judicial officers,” said the bill’s sponsor, Rep. Jamila Taylor, D-Federal Way. “Right now, they have almost unrestricted discretion, and that’s leading to outcomes that are different by county, different by who has access to a lawyer, different by maybe sometimes implicit bias against one party.”

The bill is supported by some survivors of domestic and sexual violence, as well as the Superior Court Judges’ Association and groups that serve survivors, like the Sexual Violence Law Center, the Northwest Justice Project and the Washington State Coalition Against Domestic Violence. They say it will provide much-needed guidance to judges ruling on complex custody cases.

Other survivors and advocates, however, strongly oppose the bill, fearing that it will actually do the opposite. Critics argue that it will increase judicial discretion, making it easier for courts to ignore the impacts of abuse. A similar bill introduced last year died before a vote on the House floor after facing opposition from moms who argued it would decrease protections for survivors and their children.

“It enhances judicial discretion without any required judicial training and solidifies the false equivalency between abuse and other parenting behaviors,” said Evangeline Stratton, former senior managing attorney for the Washington Family Violence Appellate Project, in her testimony against the bill.

Taylor disagrees that the legislation would increase judicial discretion, adding that discretion under the current law “is the broadest that you can possibly have.”

Under current law, the court is generally required to limit a parent’s residential time with their child if the parent has a history of perpetrating domestic violence. But the law also allows judges not to impose these limitations in certain circumstances, like if the court expressly finds that the child won’t be harmed by having contact with the parent or that the conduct didn’t impact the child.

Domestic violence survivors and advocates say this gray area opens up opportunities for judges to overlook the harm that family violence has on children. Survivors who support the bill — some of whom lost custody of their kids despite court findings that the other parent had a history of domestic or sexual violence — hope it will prevent judges from placing children with abusive parents.

“For too long, parents facing domestic violence and abandonment and abuse dynamics have struggled with the limitations in their parenting plans that don’t fully account for the harm that is inflicted upon the children,” testified Paula Sardinas, founder and chief advocate of the Washington Build Back Black Alliance, a coalition that advocates for Black and BIPOC communities. “These changes align with our missions to advocate for policies that protect our most vulnerable citizens, our victims and our children.”

But other survivors question whether this bill will achieve that goal. Gina Bloom, a domestic violence survivor in Snohomish County, lost custody of her children after a judge used his discretion to put parenting restrictions on her instead of her abuser. Bloom testified in strong opposition to the bill, saying it will give judges more power instead of protecting survivors.

Bloom, along with some other survivors and advocates, opposes certain definitions included in the bill. For example, HB 1620 defines “abusive use of conflict” to describe parents who engage in actions like abusive litigation and repeated bad faith violations of court orders. The term is currently used in Washington to put limitations on parents, but it isn’t explicitly defined in state law.

“HB 1620 introduces vague, misleading terms like ‘abusive use of conflict’ and ‘protective actions,’ making it easier for courts to ignore domestic violence and punish survivors for defending themselves,” Bloom testified. She urged legislators to remove “abusive use of conflict” from the law entirely, as it’s been used against survivors like herself who are trying to protect their children.

Hendren, who helped draft the legislation, argues that the term is crucial to protect survivors from abusers who continue to exert control over them post-separation.

“Abusers will file motion after motion after motion to drain survivors and punish them for leaving an abusive situation,” Hendren said. Clearly defining the term, rather than omitting it, will help ensure that judges have a consistent understanding of it, she said.

Opponents like Stratton and Bloom have also pushed back against a portion of the bill that would make it possible, in limited circumstances, for judges to allow joint decision-making in cases involving domestic violence. Existing law states that only one parent can have decision-making authority in these cases.

The bill’s supporters say this proposed change is necessary because — although the law prohibits mutual decision-making when there’s been domestic violence — it does not specify which parent gets that authority. In some instances, courts have given sole decision-making to the parent with a history of domestic violence, meaning those survivor parents don’t have any voice in decisions like their children’s education and health care. Stratton agrees this is an issue, but believes the solution is to specify in the law that sole decision-making must go to the parent that does not have a finding of domestic violence.

As Taylor strives to get the bill through the Legislature, she understands that there’s no one-size-fits-all model for survivors.

“An abuser will always manipulate any rule that exists,” Taylor said. “So I’m not going to be afraid to improve the system just because one abuser is going to manipulate the system. What I’m going to do is make it harder for that abuser.”

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