In theory, everyone agrees that parents have a right to be with their children. In practice, however, Olivia, Evelyn, and Paityn Decker were bound by zip ties and had their heads covered with plastic bags until they died. It appears reasonably clear (though not yet certain) that their disturbed father did it. He’s now on the run in Washington’s Cascade Mountains, while those meant to protect the children wring their hands over destigmatizing mental illness and fixing a “racist” child welfare system.
The alleged perpetrator, Travis Decker, is now charged with kidnapping and murder. Decker had reportedly blown off court-ordered mental-health evaluations, was homeless, and showed what his ex-wife called a "spiraling" PTSD-fueled decline. Yet he was still permitted unsupervised visitation.
Deciding when the law should allow the state to limit a parent’s access to their children is a very tough issue. It balances two extremely important, competing rights: child safety and parental rights. But ultimately, the deciding factor has to be safety.
The Law
Like most custody statutes, Washington’s domestic-relations code elevates the best interests of the child as the guiding star in custody and visitation decisions. RCW 26.09.184 encourages parents to resolve disputes without court involvement and promotes standardized parenting plans. RCW 26.09.191 allows, but does not require, courts to restrict or supervise visitation when there is a history of abuse, neglect, substance use, or other serious risk factors.
Judicial discretion is generally a good thing because it allows an individualized approach to each situation. But that assumes there’s enough time and resources for the court to fully evaluate each situation. And it assumes there’s an ongoing process for re-evaluating the situation – which is particularly important when ongoing therapy or evaluations are required. That is sadly not always the case, and statutes should stop assuming that it is.
Instead, statutes should assume the opposite when there is any indication of mental health deterioration. There should be systemic checkpoints to confirm ongoing stability so that judges can be fully informed.
Mental health is, of course, a continuum, making bright-line rules almost impossible. But what is certainly not helpful are laws that tip the scale in favor of parents struggling with mental issues. If anything, it should be the opposite. Will erring on the side of safety lead to horrible injustices? Yes. Parents will have access to their children limited improperly. And while that’s terrible (and often infuriating), it’s simply not an irreparable loss.
With respect to court-ordered mental health evaluations, Washington State Rep. Travis Couture says that they are "extremely common to be blatantly ignored, and rarely enforced." The statute itself backs him up in that nothing in RCW 26.09 requires a judge to revoke visitation if an evaluation is skipped. The statute, in fact, instructs courts to foster the parent-child bond unless restrictions are clearly necessary to protect the child - language that can paper over red flags until tragedy forces a reckoning.
Shouldn’t Washington make continued compliance with court-ordered evaluations and therapy a rigid pre-condition for seeing one’s kids? Of course they should. And non-compliance should trigger systemwide alerts. If the person was dangerous enough that evaluations and therapy had to be put in place, it is reasonable to enforce them. Indeed, it is utterly reckless not to when children are in the mix.
Court records reportedly confirm that Decker failed to go to his court-ordered counseling. Some reports indicate he tried but could not get help from the VA system. (If that’s accurate, it’s an independent abomination.) He was apparently living in his car, and the girls’ mom filed a petition with the court in September seeking to modify the father’s visitation, fearing the girls would wind up with him in a homeless shelter with strange men about - which Rep. Couture reports in fact happened. But none of that apparently triggered any state intervention until it was too late. (Indeed, Mrs. Decker could not even get an Amber Alert in place because the threat was not deemed "imminent.")
There is a proposed bill meant to address these failures, but the Washington legislature has not passed it. Kayden’s Law (HB 2010) is designed to heighten scrutiny of unstable parents and increase judicial training and accountability. Once there are credible allegations of instability or abuse, courts would be expected to prioritize child safety over reunification presumptions. In an opinion piece titled “Three more girls are gone; Kayden’s Law could have saved them,” the law’s sponsor Rep. Alicia Rule writes:
HB 2010 would change that. It requires courts to make child safety — not parental comfort — the top priority in any case involving allegations of abuse or domestic violence…
But there hasn’t been much momentum for Kayden’s Law until this point because the Legislature’s focus with respect to child welfare has not been on safety, it’s been on equity and de-stigmatizing the mentally ill and homeless.
In 2021 Washington passed a law to make it harder for the state to take children away from their families and place them in foster care. In so doing, Washington attempts to normalize by statute what would generally be considered worrisome behavior. The Keeping Families Together Act which governs state-initiated removals (not disputes between parents) specifies that mental illness, poverty, substance abuse, crowded or inadequate housing, or "nonconforming social behavior" are not, by themselves, grounds for removal. To remove a child the judge must find that physical harm is "imminent." This is a tough standard to meet.
The values on display in the Keeping Families Together Act reflect a broader legal trend in Washington and elsewhere. The effort to destigmatize mental illness and homelessness jeopardizes safety. And though this new law technically governs only cases where the state is attempting to remove children into foster care, it seems likely that this more “accepting” approach to mental illness and domestic instability will work its way into private visitation proceedings between parents, like the Deckers – at least when the state is involved in a guardianship role. It may already have.
State Representative Travis Couture is sounding the alarm:
Oftentimes, what we’re seeing here in Washington, is the courts kind of doing some gymnastics and bending over backwards to make sure dangerous parents still have access, unsupervised, to their kids... Just speaking generally about child welfare, we’ve had a stunning, skyrocketing amount of needless deaths of small children in our state over the last handful of years because of the Keeping Families Together Act.
The Act states that housing instability alone is not enough to limit visitation. Fair enough. Poverty should not be punished. But why is that parent homeless? Mental instability? Refusal to seek treatment? "Nonconforming social behavior?" And what should happen when a parent skips a mandatory mental health evaluation? That’s not a hard question: visitation should be suspended until the original judge can re-assess the risk. That’s not punishing poverty; it’s identifying a specific danger, unconcerned with any systemic trends.
Parental rights are foundational to society. The basic human right to raise your own children is a “fundamental” right in America with the highest level of legal protection. It predates, and arguably surpasses, even our most sacred constitutional rights. But so too does the right to self-defense. And because children cannot defend themselves, the law affords them heightened protections in an effort to do so. That must not change.
And here’s what you’ve probably already suspected: lawmakers in 2021 crafted the Keeping Families Together Act as a civil rights initiative in response to the "continued overrepresentation of Black and Indigenous children in the child welfare system." So another policy born in the wake of George Floyd’s death is putting citizens at risk…
Still, Rep. Couture remains optimistic. He believes the legislature can recalibrate the law and is promoting bipartisan talks. If the law is to be re-written, liberal lawmakers may have to innovate to preserve their social equity goals. That could prove an impediment. Or, Washington State lawmakers could choose to stop chasing ghosts from 2020. They could set aside concerns about stigmatizing "nonconforming social behavior" and instead focus on the most important thing about our children: their safety. But no parent should count on the system for that.
If you wish to donate to Whitney Decker, the girls’ mother, you can do so here.