SHB: 1620 A step in the WRONG direction
PLEASE tell your lawmaker to oppose HB 1620 / SB 5575. Click here to email your lawmaker.
Also please reference: Line by Line Against vs. Support of SHB 1620 and Line by Line of Sexual Abuse 191 vs SHB 1620 (This is in two parts, the first document compares one topic at a time the arguments against and for SHB 1620, the second document addresses how SHB 1620’s sexual abuse section removes vital protections for sexually abused children)
Why mandatory protections are essential in family court: The 1987 Parentage Act was created by lawyers, legislators, family law professors, child psychiatrists and psychologists over a 4 year period. Its section which became RCW 26.09.191, or 191 statute for short, was designed to stop the regular practice of courts awarding child custody to highly litigious abusive parents and thus perpetuating the abuse. The current 191 statute requires courts to protect survivors and children from domestic abuse, which is why the first two paragraphs in the statute explicitly begin with the words “The permanent parenting plan shall not require mutual decision-making….” and “The parent’s residential time with the child shall be limited if….”. The word “shall” was specifically chosen to stop court sanctioned child abuse in cases where aggressive abusive litigants filed endlessly until they got what they wanted. SHB 1620 attempts to overhaul 37 years of precedent, and ignores recent research, such as the Model Code (Section 402 and 403), to make these “shall not”/”shall be limited” provisions “should, but doesn’t have to.” First, “high conflict” is the not the same as “abuse,” the cases that fall, or should fall, into the 191 statute are not typical contentious divorces, but extremely serious and dangerous cases. Perpetrators of domestic violence are more likely to be deficient, if not abusive, as parents and are poor role models for children. These mandatory protections in the current 191 statute are more essential in family court than any other court because they provide a recourse due to the other shortfalls of family court procedure. Some examples of the shortfalls of family court vs criminal court are:
1. No right to jury. The judge is the fact-finder and the decision maker meaning there is no oversight of a single authority. Right now, there is some oversight, because of the strict language in the statute, survivors can appeal their cases when courts don’t protect them. If HSB 1620 passes, there will be no avenue for oversight.
2. The opposing party against the survivor has has vested personal interest in gaining custody. They often go after custody to punish the survivor, to reduce their child support obligation, and to exert further control—they are fueled by vengeance. Whereas a criminal prosecutor receives marginal or no personal gain whether they lose or win their case—they are fueled purely by their desire for truth, justice and to protect the community.
3. No right to an attorney. Survivors, especially when burdened with the economic consequences of childcare responsibilities, career gap, and navigating other new financial obstacles, are already fighting to survive. Survivors more often than not, end up in court pro se against their abuser, this abusive parent who is hiding behind a highly skilled attorney. This morphs into aggressive represented litigants easily hurdling over rebuttable presumptions and even high standards of evidence, while unrepresented survivors often can’t get judges to follow the plain language of the law.
4. No right to speedy trial. Child custody cases even after a permanent parenting plan is ordered can potentially continue the duration of the child’s childhood. This means, even if the survivor prevails in protecting their children in the initial trial, the abuser can bring the survivor back infinite times until the abuser gets what they want.
Without mandatory protections, we are essentially letting abusers decide custody.
More information:
Policies We Support:
The Model Code on Domestic and Family Violence (starts on page 52). (The redlined version above is both the Model Code and Kayden’s law codified into the 191 statute is available above as the Necessary Amendments of HB 1620). The Model Code was written in 1994 to address, among other things, domestic violence in child custody cases. In 2022 it was revised to address what was learned over three decades by 15+ many highly experienced judges, psychologists and other experts. The Model Code includes many of the same policies in the federal Keeping Children Safe from Family Violence Act (popularly known as Kayden’s Law, which was passed in response to a child's death due to court ordered visitation to an abuser). The 2022 revisions were designed, among other things, to “address the family court system’s barriers to accurately identify domestic abuse and child abuse and adequately account for their effects on abused parents and children.” The Model Code uses domestic abuse as the primary determining factor for child custody, whereas HB 1620 puts less severe factors at the same level of domestic abuse, such as the vaguely defined but all encompassing label of “abusive use of conflict,” and the diagnosis-not-required label of “emotionally impaired.” If both parties allege domestic violence, HB 1620 allows the court to use these other less severe factors against the survivor, whereas the Model Code does not. When domestic abuse is alleged on both sides, the Model Code gives clear instructions, in a fair and equitable way for each party, to the court on how to identify the perpetrator—while HB 1620 gives no such guidance.
