Can my Spouse have Joint Decision-Making for our Kids if they have committed Domestic Violence?

Many clients come to me as victims of sometimes horrific domestic violence, whether it be physical, emotional or “coercive control.” If they want to leave the marriage or relationship and there are children involved, the main concern for the Parenting Plan is often how to protect the children. If children are victims of domestic violence themselves, or witness domestic violence or are exposed to their parents who have domestic violence between them, crafting a Parenting Plan that protects the children is always at the forefront of my client’s minds. Courts also are mandated to act in the “best interests of the children” including when it comes to approval of parenting plans.

What is a Finding of a History of Domestic Violence?

If a client comes to me for a Domestic Violence Protection Order (DVPO), then we go to Court and ask the Court for a finding their spouse or partner has committed domestic violence and if applicable, a “history of domestic violence.” If the Court agrees with our evidence, the Court will make a finding that domestic violence or a history of domestic violence has occurred and grant the DVPO. This is one way to get a “finding of  a history of domestic violence.” The Court can also find a history of domestic violence has occurred as part of a divorce, and issues what is known as a “191 factor(s)” finding, named after Revised Code of Washington (RCW) 26.09.191, which lists the factors that a Court can use to limit a parent’s time with the children and also whether a parent is allowed to participate in decision-making for a child or is barred from doing so. Generally, 191 factors are any sort of dangers that can harm children, physically, mentally, or emotionally, including domestic violence, sexual abuse, abandonment, etc. Of note is that a NCO in a criminal domestic violence case will often not be enough—you must get a finding of a history of domestic violence in the family law case.

 Why is a Finding of a History of Domestic Violence Important?

A recent Court of Appeals decision makes it clear that the language of RCW 26.09.191 does not permit joint decision-making between parents when there is a history of domestic violence, in concurrence with earlier opinions. In Matter of C.A.S., 25 Wn.App.2d 21 (2022), the Court held the statutory language of RCW 26.09.191 prohibits courts from requiring mutual or joint decision-making, as well as non-judicial dispute resolution where there is a history of domestic violence. Thus, any time a family law court finds a “history of domestic violence” it cannot allow joint decision-making to be part of the parenting plan for the parties’ children.  See also, In re Parenting and Support of L.H., 198 Wn.App. 190 (2016); In re Marriage of Mishko, 23 Wn.App. 2d. 571 (2022).

What to do if you have a Finding of a History of Domestic Violence in Your Case?

If the family law Court has found a history of domestic violence in your case the law is clear that no Parenting Plan can be entered that deviates from the mandatory limitations on decision-making and dispute resolution. No parent who has been found to have a “history of domestic violence” can be granted joint decision-making in a Parenting Plan. If you are in the midst of a divorce or trying to get a Parenting Plan entered or modified, make sure you consult a good attorney who will make sure you and your children are protected.


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