The following is a criticism of the procedure that was used to come up with HB 2237 introduced in 2024 (formerly SB 5205 introduced in 2023)

1. There is no urgency.  Odd that after 35 years of this RCW 26.09.191 statute all of a sudden we can’t spend adequate time that it needs to be rewritten.  If it was so urgent, this would have been brought up in 1990, not in 2022.

2. SB 5205/HB 2237 is incompatible with Kayden’s law, the law that was federally pushed after reports from the United Nations urging family court reform. Furthermore SB 5205/HB 2237 perpetuate the use of “Alienation,” (euphemistically labeled in Washington State as “Abusive Use of Conflict,”) that have been denounced by the United Nations.

3. Proponents are not listening to substantial professionals in this field: 1) the ONLY DV APPELLATE LAW GROUP, Family Violence Appellate Project, and 2) the proponents of the Federal Violence Against Women Act. The proponent of HB 2237 from SVLC only has 2 published Washington State case laws, neither mentioning the RCW 26.09.191 statute or domestic violence—whereas the opponent of HB 2237 from Family Violence Appellate Project has 5 published caselaw decisions, 2 involving domestic violence and RCW 26.09.191, and 2 involving domestic violence/sexual assault. This bill goes in opposition of the authorities who passed the Violence Against Women Act, because this bill goes in direct opposition to VAWA. Its noteworthy that VAWAs language does not include discretionary language, but mandatory language, this is because discretionary language does not work in custody cases involving domestic violence.

4. This bill was not written by survivors! Survivors were told during drafting “This bad bill is going to pass, the best we can do is make it better” and that “the judges won’t go for that” when they denied our suggestions—and now its being touted as a “Survivor Bill.” The draft that was worked from was the original SB 5205. Earlier in the year, our organization conducted several meetings, surveys, and forums across our over 150 member platform where family court dv victims suggested changes that THEY wanted to 191, NOT ONE of those changes made it into the bill, and this bill removes the things we want to keep. Survivors wanted CPS reform, GAL reform, Judicial Training in DV/abuse, only qualified experts to testify on DV/abuse, heightened standards of what “emotional impairment”, removal of “abusive use of conflict,” better analysis of what parent is the perpetrator, and heightened consideration on maintaining primary caregiver relationship.

5. There exists a tremendous power imbalance here.  Judges Associations and other family court groups have historically sided with abuser rights groups, the abuser rights groups are the SCJA and WSBA.  We’re being told pushing out another year is like asking for a second continuance.  I disagree, this is not analogous to anything in court because the SCJA has substantial power over us: THEY ARE SPENDING $18,000 ON LOBBYISTS EVERY MONTH (it's highly unlikely they are only spending money on lobbyists) this is like an adhesion contract, because we have no negotiation power it's a "take it or leave it" offer from the SCJA and WSBA.    

6. Survivors weren’t given a full year to come up with a revised version, we were given 6 hours.  In August - September 2023 Stakeholders (ELAP, SVLC and NWJP) crafted a draft, unfortunately based on Judge’s version (SCJA, WSBA and FLEC) and therefore was based on foundation of discretion. In September 2023, Stakeholders sent this version to Judges. We were made aware in November that Judges removed or watered down Stakeholders changes to be ineffective. Early December, Judges sent back to us to do this work all over again in less than a week, whreby we conducted a 4 hour meeting. This 4 hour rushed meeting hosted by one SVLC rep, attended by one NWJP rep, and myself in super limited capacity, rushed through as if it were a timed test with no time for hand-raising. In our next meeting with Judges, SVLC rep acquesed to remove and water down all our suggestions to what would became our now HB 2237. As one of the two very experienced non-attorney stakeholders participating in both of those groups, all of our suggestions were denied by stakeholders or removed by SCJA.

7. RCW 26.09.191 contains hundreds of clauses that can determine custody outcomes, each one in and of itself can drastically change the outcome of these cases. This is not a statute that can be decided so quickly. "The devil is in the details," sometimes as little as moving a comma can alter outcomes. Many of these clauses contain vastly different subject matters, varying situations. 99% of HB 2237 have been decided by attorneys, why have we not included DV experts, psychologists, child-care experts.

8. The foundation of the bill is flawed, the real intent is to throw away survivor-supporting case law, and prevent future survivor-supporting case law.  I suspect the reason that 191 has finally become an issue with SCJA is because of many of the recent case law decisions initiated by survivor represented attorneys such as FVAP.  90% of the benefit of FVAP and other appellate attorneys aren’t to their clients, but the benefits enjoyed by the future survivors who use their case law.   Its possible to make language in the existing statute that solve the problems initially raised to us in Jennifer Forbes letter without rewriting the whole statute, see our proposed alternative here.  

9. This is not a gender neutral issue, to deny that there is an issue is to further perpetuate the sexism in it.  I urge any future conversations about the RCW 26.09 chapter to face this issue recognizing that men and women have different needs, advantages, priorities in custody, and our policy should reflect that. We are often tricked into believe we are being treated fairly because the laws treat men and women equally—the difference is legislature is only handing out laws men want, not what women want. DV survivors (usually women) in family court see custody entirely different than fathers; mothers see it as a threat to their child’s safety, abuse perpetrators (usually men), see custody as a weapon to avenge his victim. Primary parents (usually mothers) are treated like criminals while they’ve committed no crimes, whereby their abuser, their previous sexual partner, now has powers similar to a prosecutor in family court to control them under the threat of loosing their child.  Custody/divorce becomes a weapon for the parent who was less involved to punish the other parent by taking the kids with him. We cannot recreate a statute that refuses to acknowledge these considerations, let alone not even discuss them during our work groups.   Here is one of the several essays written on this topic: https://womenscoalition.substack.com/p/the-gender-neutral-rabbit-hole-fueling

10. No other statute affects women and children’s rights in Washington State than RCW 26.09.191, give it the time it needs.  Survivors are disproportionately women.  There is a nation-wide family law crisis where good mothers are loosing custody to abusers and children being substantially physically harmed because of discretion.  We cannot let the judges prioritize their technicality limitations to further displace an overworked and underpaid class of people, just to make their jobs easier.  https://news.un.org/en/story/2023/06/1138057 This crisis is not exaggerated, in support groups for single moms, approximately half of posts are regarding how to navigate family court. Family court has taken over these women’s lives.  Even in general mom groups an increasing number are moms looking to divorce, but are advised not to because family court can take their kids away.  

11.  Forbes’ Letter raises issues that do not requiring such a substantial overhaul of the 191 statute.  HB 2237 is a monster. All 4 scenarios as described in SCJA’s letter can be addressed in a narrowly tailored law, that law and link to this letter is available here.

12. This bill violates the most fundamental principle in law: vague laws create arbitrary, prejudicial and racist enforcement.  I shouldn’t have to cite case law here to prove this point, this is a fundamental constitutional right to be protected by vague laws.  “Abusive use of Conflict,” “The Best Interest of the Child” and “interfering with Parenting functions” are so over-applied, broad, arbitrarily applied in family court, no one can ignore the fact that these are vague laws.  Such broad terms create a world where mothers are defenseless in family court, a trial is just a popularity contest, and the child is auctioned off to the wealthier parent.

13. The very same Judges leading HB 2237 have made decisions denying DV and over-apply abusive use of conflict and emotional impairment within their “discretion.” We have two families that we directly work with who have denied DV findings, given custody to abuser, ALREADY WITHIN THEIR DISCRETION. Judges, good intentioned or not, are not impenetrable to the persuasive, powerful influence from a well financed abuser.   In one case an immigrant mother is put on professionally supervised visitation because of her “emotional impairment” and the psychological evaluator’s prediction she will be an “alienator.” In the other case the mother’s good faith reports of the child being sexually abused by teh father were used to tag her with “abusive use of conflict,” remove custody and put the children with the father who could still be molesting the children, and is now ordered to do reunification therapy whereby the court professional is demanding a $43,000 retainer.

14. The process involves at least two, if not several, of the most harmful aspects as described in "White Supremacy Culture": Sense of Urgency, and Paternalism.   Sense of Urgency: as described in the first bullet point, “continued sense of urgency that makes it difficult to take time to be inclusive, encourage democratic and/or thoughtful decision-making, to think long-term, to consider consequences”:   Paternalism: "Those with power often don't think it is important or necessary to understand the viewpoint or experience of those for whom they are making decisions" certain items we keep putting into the draft keep getting removed because survivor experiences aren’t valued: abusive use of conflict, limiting exceptions to sole decision making, and the bar that abusers must pass to remove residential limitations.  https://www.thc.texas.gov/public/upload/preserve/museums/files/White_Supremacy_Culture.pdf  This is further proven by the fact that proponents of the bill STILL FILED SB 5205 THIS YEAR, because their goal isn’t addressing the 4 scenarios in SCJA’s letter, but removing DV protections BY ANY MEANS NECESSARY.

15.  No input from poor people of color and other marginalized groups, discretion exacerbates racism.  Poor mothers of color regularly to lose custody to white fathers, via judicial discretion and subconscious racial bias against people of color.  This increase in judicial discretion correlating with harming people of color is an established and accepted fact of our society, from a paper from the University of Chicago Law School, “Using comprehensive data on federal defendants sentenced from 1994-2009, I find evidence that increased judicial discretion … has led to large and robust increases in racial dis- parities in sentencing, particularly after periods of reduced appellate scrutiny” the same principals apply to family law. Increasing discretion increases racist family law decisions. Its There should always be an effort to include the most marginalized with in-person efforts to include communities that don't have access to email/virtual platforms.  Furthermore, there has been no input from children or aged out children who are or were the children of cases affected by faulty applications of 191.  These aged out children are essential voices in this policy.  

16. All of the significant suggestions that survivors wanted were denied or removed from HB 2237. Aside from legal assistance groups only two non-attorney survivors (who network with a much larger group of survivors) participated in the two rounds with the Stakeholders, and none of their suggestions were implemented in this draft. The first survivor recommended removing Abusive Use of Conflict and Emotional Impairment from the discretionary limitations, the stakeholder leader said this was not possible so it was left out. Many other of her suggestions were left out. The second survivor’s suggestions were removed from the stakeholder’s draft to the SCJAs by the SCJA.

17. The DV orgs who are supporting this bill are not listening to survivors who do not want this bill, instead are telling survivors to not talk about it or support it.

The Solution: No amount of amendments can fix this bill, this bill is based on discretion and is therefore fundamentally flawed. We spend 2024 coming up with a solution that addresses these problems without the consequences from HB 2237 and present a bill package in 2025.