The 2025 Reform: ESHB 1620 Creates a New Shield for Washington Parents

Legislative Updates · By Gale McArthur · 2026-04-04 · 9 min read

The shift from 'preponderance of evidence' to 'clear and convincing' — what ESHB 1620 means for parents facing discretionary custody restrictions.

In 2025, Washington enacted ESHB 1620 — the most significant reform to custody restriction law in a generation. The new law raises the evidence standard for discretionary findings under RCW 26.09.191 from "preponderance of the evidence" to "clear and convincing evidence" — a change that could protect thousands of parents from vague, subjective restrictions.

Visual Overview

Comparison: "Preponderance" (51%) vs. "Clear and Convincing" (~75%) evidence standards

A parent holding a shield labeled "RCW 26.09.191(4)" deflecting a "Vague Label" arrow

A bright, sunny courthouse exterior representing a new era of transparency

What Changed

### The Old Standard: Preponderance of the Evidence (>50%) Under the old framework, a trial court could restrict a parent's rights based on discretionary findings if the evidence showed it was "more likely than not" that the parent's conduct was harmful. This 51% threshold made it relatively easy to enter restrictions based on: - GAL characterizations - Evaluator opinions - General impressions of the parent's demeanor

### The New Standard: Clear and Convincing Evidence (~75%) ESHB 1620 requires that discretionary restrictions be supported by clear and convincing evidence — a significantly higher bar that demands: - Specific, documented conduct - Expert testimony with clinical basis - A demonstrated nexus between conduct and harm to the child

Impact on Key Case Law

The reform directly addresses concerns raised in the appellate record:

### Burrill (2002) — Prospective Harm Burrill held that actual harm need not have occurred. Under ESHB 1620, the prospective danger must now be established by clear and convincing evidence, not merely a GAL's prediction.

### Chandola (2014) — Particularized Findings Chandola required particularized findings. ESHB 1620 reinforces and strengthens this requirement by raising the evidentiary threshold.

### Valentine v. Sooto (2025) — The New Framework This recent opinion explains that abusive-use-of-conflict restrictions require a statutory finding that conduct created the danger of serious psychological damage — now evaluated under the higher standard.

What This Means in Practice

| Scenario | Old Standard | New Standard | |----------|-------------|-------------| | GAL says parent is "high conflict" | May be sufficient for restriction | Insufficient without clinical evidence | | Parent reports abuse concerns | Could be reframed as "conflict" | Must be evaluated in context of protective actions | | Evaluator opines on personality | Could support restriction | Must demonstrate nexus to specific child harm | | Communication style criticism | Could trigger .191 finding | Must show "clear and convincing" evidence of danger |

Remaining Challenges

ESHB 1620 is a critical step, but it does not solve all problems:

1. Trial court application — Judges must actually apply the higher standard, not pay lip service to it 2. GAL training — GALs need updated training on the new evidence requirements 3. Evaluator standards — Psychological evaluators must adjust their recommendations to the higher threshold 4. Appellate enforcement — The Court of Appeals must rigorously review findings under the new standard

Action Steps for Parents

1. Cite ESHB 1620 explicitly in all pleadings involving discretionary restrictions 2. Object on the record if the trial court appears to apply the old standard 3. Request written findings that specifically address the "clear and convincing" threshold 4. Preserve the record for potential appellate review

Sources: ESHB 1620 (2025); In re Marriage of Burrill (2002); In re Marriage of Chandola (2014); Valentine v. Sooto (2025); RCW 26.09.191