How a Criminal Conviction Affects Your Custody Case in Washington

In Washington, a criminal record doesn’t decide a custody case by itself. The parenting plan statute, RCW 26.09.191, limits a parent’s time based on conduct the court finds, and a conviction is evidence of that conduct. So how a criminal record affects custody in Washington depends far more on what the conviction was for than on the word “felony” or “record.” One narrow exception: an adult conviction for a sex offense against a child brings a separate rule, RCW 26.09.192.

Below is which convictions connect to which part of the statute, what limits actually look like, how the record reaches the judge, what changes after the criminal case ends, and why choices in the criminal case matter for the family case. The legislature rewrote RCW 26.09.191 in 2025, so older articles may describe rules or subsection numbers that no longer apply.

This article is about convictions. If a charge is still open, that stage has its own rules.

Torrone’s Takeaways

A DUI conviction isn’t on RCW 26.09.191’s list. A long-term substance impairment that interferes with parenting is.
A history of acts of domestic violence, which can be proved with or without a conviction, is on the list where limits are required.
An adult conviction for a sex offense against a child creates a rebuttable presumption of no contact under RCW 26.09.192.
If the court orders supervised visits, the statute presumes a professional supervisor.
To decline a required limit, the court needs written findings on clear and convincing evidence, and finishing treatment alone isn’t enough.
Vacating a conviction lets you say you were never convicted, but a DUI can’t be vacated, and the statute doesn’t mention family court.

Torrone’s Takeaways
Washington Custody Law Looks at What You Did, Not the Conviction Itself
Where Each Conviction Fits: Domestic Violence, DUI, Drugs, and Offenses Against Children
RCW 26.09.191 Limits in Plain Words
When a CPS Finding and a Conviction Reach the Same Judge
After the Criminal Case Ends: Changing the Plan and Vacating the Record
Why the Criminal Defense Plan Should Account for the Family Case
FAQ

Washington Custody Law Looks at What You Did, Not the Conviction Itself

The statute’s trigger is a finding about conduct. Under RCW 26.09.191(4)(a), a parent’s residential time “shall be limited if it is found that a parent has engaged in any of the following conduct.” Washington’s Domestic Violence Manual for Judges puts the other side of it plainly: “a criminal history is not required to establish a history of domestic violence.” The Manual lists what can prove that history, including “records of criminal convictions and protection orders,” 911 recordings, medical histories, photos and witness testimony. A conviction record is one item on that list.

That cuts two ways. A conviction can be strong evidence of the conduct. A parent with no conviction can still face a finding, because the family court decides the conduct itself, and under RCW 26.09.191(2)(c) it applies the rules of evidence and civil procedure to do it, unless the parties chose an informal family law trial.

The limits question also comes first. Under RCW 26.09.187(3)(a), the residential schedule “shall be consistent with RCW 26.09.191 and 26.09.192.” Only where those limits don’t decide the schedule does the court weigh the ordinary best-interest factors, where the child’s relationship with each parent gets the greatest weight.

The 2025 rewrite, passed as ESHB 1620, reorganized RCW 26.09.191 effective July 27, 2025 and moved the sex-offense conviction rules into a new section, RCW 26.09.192. That’s why articles written before then cite different subsection letters.

So the useful question is what conduct the court could find, and from what evidence.

Where Each Conviction Fits: Domestic Violence, DUI, Drugs, and Offenses Against Children

The statute puts a history of domestic violence on the list where limits are required. Substance abuse appears on the list where limits are allowed, as a long-term impairment that interferes with parenting, though the conduct behind a conviction can also bear on other grounds, such as neglect. Under subsection (4)(a), the court “shall” limit residential time when it finds the listed conduct. Under (4)(c), it “may preclude or limit” parts of the plan when a listed factor exists.

Conviction	What the family court asks	Where it sits in the statute
Domestic violence (assault, harassment, stalking and similar offenses between partners or household members)	Is there a history of acts of domestic violence as defined in RCW 7.105.010?	Required limits, RCW 26.09.191(4)(a)(iii), and a presumption of sole decision-making
Assault causing grievous bodily harm or fear of it, or any sexual assault	Did the parent engage in that conduct?	Required limits, (4)(a)(iii)
Physical abuse of a child	Was there physical abuse or a pattern of emotional abuse of a child?	Required limits, (4)(a)(ii)
Sex offense against a child, convicted as an adult	Has the parent rebutted the presumption of present danger?	RCW 26.09.192(2)(a), no contact unless rebutted
DUI or physical control	Is there a long-term impairment from alcohol or drugs that interferes with parenting, or other conduct the statute lists, such as neglect?	Allowed limits, (4)(c)(iii) and other (4)(c) grounds
Drug possession or other drug offenses	The same questions as DUI	Allowed limits, (4)(c)(iii) and other (4)(c) grounds
Other convictions (theft, property and similar offenses)	Is there other conduct the court expressly finds adverse to the child’s best interests, serious enough to compare with the listed factors?	Allowed limits, the catch-all in (4)(c)(vii)

The domestic violence definition in RCW 7.105.010 covers physical harm, assault, the infliction of fear of physical harm, nonconsensual sexual conduct, coercive control, unlawful harassment and stalking, between intimate partners or between family or household members. A DV conviction can be evidence of that history, and the court still makes the finding. If the charge itself is what you’re facing, see defending a domestic violence charge.

DUI and drug convictions work differently. The statute’s words are “a long-term impairment resulting from drug, alcohol, or other substance abuse that interferes with the performance of parenting functions.” A single DUI conviction isn’t named. Whether a child was in the car isn’t the statute’s test for this ground either. The question is an impairment that interferes with parenting, which a night with a child in the car neither proves nor rules out on its own, and the underlying conduct can still matter under other grounds. The court can order a substance use evaluation or treatment, covered below. For the criminal side, see our guide to DUI defense in Washington.

Sex offenses against a child are the one place a conviction itself creates a presumption. Under RCW 26.09.192(2)(a), a parent “convicted as an adult of a sex offense against any child” is presumed to pose a present danger, and unless the parent rebuts it, the court restrains all contact. Even after a rebuttal, the statute sets conditions on contact rather than restoring it all at once.

For the catch-all, the Washington Supreme Court held in In re Marriage of Chandola (2014), under the earlier numbering of the statute, that the adverse effect has to be comparable in severity to the listed factors. Side by side, a DV finding requires limits, while a DUI conviction allows them when the court links it to harm to the child.

RCW 26.09.191 Limits in Plain Words

“Shall be limited” means a judge who finds the listed conduct has to limit residential time. The remaining question is how. Under RCW 26.09.191(4)(d), the limits must be “reasonably calculated to protect a child from the physical, sexual, or emotional abuse or harm that could result” from contact, and they include:

Supervised visitation. “A court may, in its discretion, order supervised contact.” If it does, “there is a presumption that the supervision shall be provided by a professional supervisor.” A lay supervisor is allowed only if the court finds both that the person has shown through sworn testimony and past interactions that they’re capable and committed to protecting the child, and that the parent can’t access professional supervision because of geographic isolation, financial indigency, or other factors that make it inaccessible. Every supervision order comes with clear written guidelines, and no visit happens until the parent and supervisor sign an acknowledgment. Serious violations allow an emergency order suspending time, with a review hearing within 14 days.
Evaluation and treatment. The court may order evaluations “for such issues as domestic violence perpetration, substance use disorder, mental health, or anger management,” and may order treatment if the evidence shows the issue interferes with parenting. Residential time and decision-making “may be conditioned on the parent’s completion of an evaluation or treatment ordered by the court.”
No contact. If the court expressly finds that limits won’t adequately protect the child, it restrains all contact.

Decision-making has its own rule. Under RCW 26.09.191(5), when the court finds abandonment, abuse of a child, a history of domestic violence, or a serious assault, it “shall order sole decision making and no dispute resolution other than court action,” subject to an exception in (6)(b). Where there’s a domestic violence finding, “there is a rebuttable presumption that there will be sole decision making.” In plain words, the other parent makes school and medical decisions, and disagreements go back to court rather than to mediation.

When the Court Can Decline a Mandatory Limit

Under RCW 26.09.191(6)(a), apart from the rule for cases where both parents face limits (see the FAQ), the court can decline required limits on residential time only if it makes “express written findings based on clear and convincing evidence” that contact won’t cause abuse or harm to the child and that the chance of the conduct recurring is “so remote” that limits wouldn’t serve the child. That exception doesn’t apply to findings of sexual abuse, which RCW 26.09.192 governs. Under (6)(c), the court has to make written findings on five factors:

Any current risk the parent poses to the child or the other parent.
Whether the parent has shown they can and will put the child’s well-being first.
Whether the parent has followed court orders and is likely to keep following them.
Whether the parent has genuinely acknowledged past harm and is committed to avoiding harm in the future.
The parent’s compliance with any court-ordered treatment.

The statute adds a line worth reading twice: “A parent’s compliance with the requirements for participation in a treatment program does not, by itself, constitute evidence that the parent has made the requisite changes.” Finishing a program is part of the evidence, not all of it. The bar is high, and the statute spells out exactly what the court has to see.

When a CPS Finding and a Conviction Reach the Same Judge

A guardian ad litem appointed in the custody case may ask about the criminal record. WashingtonLawHelp’s guide to guardians ad litem says “The GAL can review past criminal records, court records, and other important records,” and the judge can limit the GAL’s work to specific issues, such as domestic violence or a parent’s alcohol or drug use.

Under RCW 26.09.220, the court can order an investigation or appoint a GAL, and the investigator “may consult any person who may have information about the child.” You have rights in that process. The report has to reach your attorney, or you if you don’t have one, at least 10 days before the hearing unless the court shortens that for good cause. The investigator has to make the underlying file available, and any party can call the investigator and the people consulted for cross-examination.

A CPS finding and a conviction are two different things. A DCYF finding is the agency’s decision, and a CPS finding isn’t a court finding in a parenting plan case. The family court decides the conduct itself under the rules of evidence, as above. If a CPS case and a criminal case are running at the same time, see handling CPS and criminal charges together.

In Pierce County, Family Court is made up of three judicial departments, commissioners, and Family Court Services, which includes a staff GAL. Family Court Services is in Room 710 of the County-City Building, 930 Tacoma Ave S, at (253) 798-7702.

If a GAL is appointed in your case, the file they build is one you’re entitled to see.

After the Criminal Case Ends: Changing the Plan and Vacating the Record

A parent under RCW 26.09.191 limits faces a specific test for getting more time. Under RCW 26.09.260(7), that parent “may not seek expansion of residential time” through the subsection (5)(c) route, which allows up to 90 overnights a year, “unless that parent demonstrates a substantial change in circumstances specifically related to the basis for the limitation.”

Changing the Parenting Plan

The general rule in RCW 26.09.260(1) is that a court modifies a plan only on facts that arose after it was entered or that were unknown to the court then, a substantial change in the circumstances of the child or the other parent, and a finding that the change is necessary to serve the child’s best interests. A major change to the residential schedule also has to meet the standards in subsection (2). A parent under limits faces two more rules for the (5)(c) route. Subsection (7) requires the change to be “specifically related to the basis for the limitation.” Subsection (9) says a parent whose plan requires evaluations, treatment or classes must have “fully complied” before seeking that expansion. The work that matters is the work aimed at the reason for the limit.

It runs the other way too. Under RCW 26.09.260(4), a later conviction can bring the other parent back to court, because the court may reduce or restrict contact with the parent the child doesn’t live with most of the time, using the RCW 26.09.191 and 26.09.192 criteria. A conviction for custodial interference in the first or second degree is itself a substantial change under subsection (3).

In Pierce County, modification of custody cases are assigned to Family Court at filing, and the Impact on Children seminar is generally required under PCLSPR 94.05 for modifications of custody and residential schedules, with some exceptions and waivers.

What Vacating a Conviction Can and Cannot Change

Vacating a conviction changes what you can say about it. Under RCW 9.96.060(8)(a), once a misdemeanor is vacated, the person is “released from all penalties and disabilities resulting from the offense,” and “for all purposes, including responding to questions on employment or housing applications,” may state that they have never been convicted of that crime. Felony vacation under RCW 9.94A.640 uses similar language.

The statute doesn’t mention family court or parenting plans, and we found no Washington authority on how a family court treats a vacated conviction. What the statute does make clear is that a parenting plan limit rests on conduct the court finds, and conduct can be proved by many kinds of evidence.

Two bars matter most for this reader. DUI and physical control convictions can’t be vacated, whether misdemeanor under RCW 9.96.060(2)(d) or felony under RCW 9.94A.640(2)(g). Domestic violence misdemeanors carry extra conditions, including that at least five years have passed since completing the sentence conditions and any ordered treatment, apart from payment of fines and other financial obligations. The full eligibility rules are in our guide to vacating a criminal record in Washington.

When we look at a vacation question, we pull the criminal history, check the conviction against the eligibility rules, and say straight whether the person qualifies now, will qualify later, or won’t. Put next to each other, a modification needs a change tied to the limit, while vacating changes the record and doesn’t, by its own terms, address a parenting plan.

Why the Criminal Defense Plan Should Account for the Family Case

In a domestic violence case, the criminal court won’t wait for the family case. Under RCW 10.99.040(1)(a), the court “shall not dismiss any charge or delay disposition because of concurrent dissolution or other civil proceedings.” So a conviction can be entered before the parenting plan is decided. The two cases run on their own clocks, and several things carry from one to the other:

A conviction designated as domestic violence can be evidence of the history of acts of domestic violence that brings required limits and the sole decision-making presumption.
No-contact order terms in the criminal case can bar contact with the victim “or the victim’s family or household members,” and the criminal court has to try to make sure its order “does not lessen protections imposed by other courts.” When children are in the household, those terms reach the parenting schedule.
Treatment ordered at sentencing is the same kind of treatment a family court can order and weigh in its written findings, and compliance alone isn’t enough. If the parenting plan itself requires treatment, RCW 26.09.260(9) ties later requests for more time to finishing it.
A DUI with a child under 16 in the car brings mandatory added penalties per passenger under RCW 46.61.5055, and the court must consider whether a child passenger was in the vehicle when it sets the sentence.

That’s why we read the plea paperwork in a criminal case with the family case in mind. Two courtrooms are involved, and they don’t ignore each other. What gets said and filed in one can show up in the other. Our firm handles both criminal defense and family law in this office, so one team looks at what gets filed, what gets said, and in what order.

If you have a conviction or a criminal case and a parenting plan to deal with, you can schedule a free, confidential consultation with our custody lawyers. We’ll look at the criminal record alongside the parenting plan and go through where the conviction fits in the statute, from a firm that practices both family law and criminal defense.

FAQ

1. Is going to jail the same as abandoning my child in Washington?

No, not under the statute’s definition. RCW 26.09.191(3)(h) says willful abandonment does not include a parent who has been unable to see the child because of circumstances that include incarceration, deportation, inpatient treatment, a medical emergency, fleeing to an emergency or domestic violence shelter, or the other parent withholding the child.

2. Does a protection order against me count the same as a conviction?

They’re treated differently. RCW 26.09.191(2)(b) says the weight given to a domestic violence protection order is within the court’s discretion, and the court decides whether the conduct happened under the rules of evidence. A conviction is evidence of conduct too, and an adult conviction for a sex offense against a child brings its own presumption under RCW 26.09.192. A history of domestic violence can be found with or without a conviction.

3. Does an old conviction stop counting after a certain number of years?

Washington’s parenting plan statutes set no age cutoff for past conduct. When the court considers declining a required limit on residential time, it weighs current risk: whether the conduct is so unlikely to recur that limits wouldn’t serve the child, judged through the written findings the statute requires, including whether the parent has genuinely acknowledged past harm. Decision-making and sexual abuse findings have separate rules.

4. What happens if both parents have criminal records or limits?

The court can still make an exception when mandatory limits apply to both parents, but only with detailed written findings comparing the risk of harm each parent poses to the child. When one parent has mandatory limits and the other has discretionary ones, RCW 26.09.191(7) presumes the mandatory limits take priority, and the court has to explain in writing if it deviates.

This article is attorney advertising and shares general information only, not legal advice. Reading it or contacting Melvin & Torrone, PLLP does not create an attorney-client relationship. Every situation is different, so talk with a licensed attorney about yours.