Domestic violence protection orders are designed to protect people from violence and abuse. Although the process is intended to be as simple and easy as it can be, Washington civil protection order attorneys understand that it can be difficult for everyone involved, especially children. It can be hard for children to talk about what has happened. The Washington Supreme Court has recently clarified that there is not a due process right to cross-examine a minor in every protection order proceeding, but there may be such a right in some cases.
In this case, the 14-year-old daughter had taken an overdose of prescription medication in November 2014, partly to avoid visiting her father. She told a social worker her father had been physically and verbally abusive. She had told her counselor her father often called her names. She stated that her father had “trie[d] to suffocate her.” She said he had been doing this for years. She said he put her under pillows and lay on them, which made her feel like she was suffocating and caused her to panic.
The mother sought a domestic violence protection order on behalf of herself and her children. Her petition stated that her daughter harmed herself because of her fear of visiting her father and because of his history of domestic violence against them.
The commissioner granted a temporary emergency protection order, which was modified to allow the other daughters to visit the father. The father moved for a hearing with a cross-examination of his daughter. The mother objected, arguing cross-examination would traumatize the girl. The motion was denied, and the commissioner subsequently issued a one-year protection order that allowed the father to have some contact with the daughter but restrained him from causing harm, injury, or harassment.
The daughter attempted suicide that day. The court granted reconsideration of the order. The modified order restrained the father’s contact with the daughter and kept him from coming within 100 yards of her school or home.
The father appealed, arguing his due process rights were violated, and he was entitled to a full testimonial hearing, including cross-examination of his daughter. The court found the trial court had sufficient evidence corroborating that the girl had attempted suicide or self-harm twice as a result of her fear of visiting her father. The court found the father had received due process.
The father petitioned for review by the Washington Supreme Court.
The Court found there is no statutory right to cross-examine a minor in a proceeding for a protection order.
Cross-examination may be required to meet the requirements of due process. The requirements of due process vary based on the circumstances. The Washington Supreme Court has set forth a three-factor test. The court should consider the private interest that will be affected by the action, the risk that the party will be deprived of that interest through the procedures used and the probable value of additional or different procedures, and the government interest.
The Court found the first factor weighed in favor of the father, since he had a fundamental liberty interest in the care of his child. However, the deprivation was temporary, and the order was subject to the dissolution action.
The third factor weighed in favor of affirming, since the government also had a compelling interest in protecting children and preventing domestic violence.
The Court then considered the second factor. Although there is a preference for live testimony, it is not always a requirement. Chapter 26.50 RCW sets forth the procedures for a domestic violence protection order petition, and those procedures were followed in this case. The father was allowed to depose the mother, and the guardian ad litem’s report was filed as evidence in the proceeding. The commissioner had held a special set hearing. Evidence presented included the mother’s declaration and deposition, the guardian ad litem’s report, and medical records. The Court found it was within the commissioner’s discretion to determine cross-examination was not necessary and would likely harm the child.
The Court also noted that the evidence indicated the daughter was afraid to be honest about her feelings in front of her father and would say things to avoid his anger. The Court found it was reasonable to conclude that her responses would have been fearful and that she would not have provided information that was not already in evidence.
This case clarifies the Court’s position on cross-examination of minors in domestic violence protection order proceedings. There is no statutory right to cross-examination in such proceedings. Due process does not necessarily require cross-examination. The commissioner or the court must weigh the value of the cross-examination against the damage it may do to the child.
The Washington domestic violence protection order attorneys at Blair & Kim, PLLC, understand how difficult the proceedings can be for the entire family. Whether you are seeking an order or opposing an order against you, we will work with you to protect your rights. Call us at (206) 622-6562 to discuss your case.
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