Articles Posted in Civil Protection Order

Allegations of domestic violence can affect a Washington custody case.  A Washington appeals court recently considered whether a child could pursue a Domestic Violence Protection Order (“DVPO”) against his mother after another court denied his father’s petition to modify custody based on the same domestic violence allegations.

Walla Walla County Proceedings

When the parents divorced in 2016 or 2017, the parenting plan named the mother as primary parent and gave the father visitation.

According to the unpublished opinion of the appeals court, the father petitioned for an immediate restraining order protecting him and the child from the mother in Walla Walla County in June 2022.  At the same time, he petitioned for modification of the parenting plan, alleging the mother had been verbally and physically abusive toward the child and that the child refused to go back to her home.  He attached a large number of text messages between the mother and the child. The trial ultimately found there was “no substantial change of circumstances” and denied the father’s modification petition and awarded the mother attorney’s fees.

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Washington felony violation of a court order occurs when a person, who has at least two previous convictions for violating a court order, knows a no-contact order exists and knowing violates a provision of it.  Willful violation of a court order occurs when a person has willful contact with another that is prohibited by a valid court order and the person has knowledge of the order.  Accidental contact is not willful.  A person must both know of the no-contact order and intend the contact. Washington case law has held that proof that the defendant acted knowingly constitutes proof they acted willfully. Previous Washington cases have held that the defendant does not have to have specific knowledge of the terms of a no-contact order, but instead must have knowledge of the no-contact order and know that the willful contact violated it.

A defendant recently appealed his conviction, arguing the prosecution had misstated the law regarding the meaning of “knowingly.”  He was charged with two counts of violation of a court order – domestic violence.  According to the appeals court’s published opinion, the protected party under the no-contact order testified that she heard knocking on her bedroom window and saw the defendant outside. She called the police.  She also testified that she received two text messages that she translated and summarized as saying “he hates me for everything I’ve done to him, for not letting him see the kids.” She further stated that he hoped the kids started hating her for not letting them see their father.

The state’s closing arguments included multiple statements about the knowledge requirement of violation of a no-contact order. The state stated “This element does not say [the defendant] knew of the provisions of this order and knowingly violated this order. The knowing part refers solely to the violation.” The state further stated, “What I have to prove to you is that [the defendant] knowingly violated a provision of this order.”

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During the COVID-19 pandemic, courts adopted a number of policies and procedures to prevent infection.  A defendant recently appealed his convictions for violation of a no contact order, challenging whether the state proved he had knowledge of the order when he had not signed it during COVID-19 protocols.

According to the appeals court’s opinion, a 2020 domestic violence no-contact order prohibited the defendant from contacting the ex-girlfriend until 2025. In October 2021, the two got into an argument.  The ex-girlfriend called 911 and reported that the defendant had strangled her.

The responding officer observed that the ex-girlfriend was “very nervous” and appeared fearful and like she had been crying.  He testified she told him the defendant strangled her. He did not see any injuries.

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“Coercive control” was added to Washington’s definition of “domestic violence” in 2022.  Although the statute provides a number of examples of coercive control, there have been few appellate cases interpreting it.  In an unpublished opinion, a Washington appeals court recently reviewed a domestic violence protection order, granted partly upon a finding that the husband had engaged in acts of coercive control.

In her petition for a domestic violence protection order, the wife indicated the husband had or owned firearms and that his use of firearms or other dangerous weapons “would be a serious and immediate threat. . .”  The petition also stated he “threatened to ‘kill himself’ while holding a gun.” She also stated he would say he was a burden and should end his life about once a month.   The petition stated the husband had “23 failed suicide attempts from his childhood.” The wife alleged he had more than 15 firearms in the house, with at least three in the bedroom and that ammunition was nearby.  She stated she wanted a divorce but did not feel it would be safe to tell the husband while he had guns.

The husband denied the allegations.  He averred he had never threatened the wife.  He also averred he had never attempted to kill himself, pointed a firearm at his head and threatened to kill himself, or said he “should end [his] life.”

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Generally, Washington’s “corpus delicti” rule requires the state to prove that the crime occurred, independent of the defendant’s own statements.  The state must provide sufficient evidence in its case-in-chief.  However, if the defendant presents evidence during their case-in-chief, they waive the challenge to the sufficiency of the evidence as of that point and an appeals court may consider all of the evidence to determine if there was sufficient evidence to support an inference that the crime happened.

A defendant recently challenged his conviction for felony violation of a protection order, arguing the state had presented insufficient evidence of the knowledge element of the corpus delicti because it relied on statements he had made to the responding officer.

The defendant’s grandaunt obtained a temporary protection order prohibiting the defendant from coming within 1,000 feet of her home on January 18, 2022. According to the appeals court’s unpublished opinion, the next day she heard someone try to unlock her door and saw the defendant through the peephole.  She told him he was not supposed to be there and he had to leave.  He first sat down and smoked a cigarette before leaving.

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In some circumstances, a Washington criminal defendant may be eligible for a sentencing alternative, including a parenting sentence alternative, a drug offender sentencing alternative (“DOSA”), or a mental health sentencing alternative (“MHSA”).  The defendant must meet certain conditions to qualify for these alternatives.  A defendant is only eligible for an MHSA if: their conviction is for a felony but is not a sex offense or a serious violent offense, they have a diagnosis for a serious mental illness recognized by the current mental health diagnostic manual, the judge determines the defendant and community would benefit from treatment and supervision, and the defendant is willing to participate.  RCW 9.94A.695(1). If the court determines that an MHSA is appropriate, it imposes a term of community custody within a range determined based on the length of the standard range sentence, but the court has discretion in determining the actual length of the community custody within the ranges.  RCW 9.94A.695(4).

A defendant recently challenged his sentence for felony violation of a no-contact order, arguing the court did not follow the proper procedure set forth in the statute when it denied his request for an MHSA.

According to the unpublished opinion of the appeals court, the defendant was arrested outside his ex-wife’s apartment in April, 2021.  Two active no-contact orders prohibited him from contacting her or being within 1,000 feet of her apartment.  He had served a sentence for a prior violation and recently been released.  He was also under the conditions of a DOSA.

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Washington family law recognizes a rebuttable presumption that relocation of a child under a parenting plan will be permitted.  That presumption does not apply, however, if the parents have “substantially equal residential time.” “Substantially equal time” generally means the child spends at least 45% of their residential time with each parent pursuant to a court order. RCW 26.09.525. A father recently challenged a relocation, partly because the trial court applied the presumption by considering how the residential time changed under a Domestic Violence Protection Order (“DVPO”).

According to the appeals court’s opinion, the mother sought a DVPO against the father after seeing severe bruising on their two-year-old daughter.

The mother filed a notice of intent to move the children.  She asked that the father be evaluated for substance abuse and anger management or domestic violence and comply with the treatment recommendations. She also requested the court suspend his residential time for non-compliance.

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When a parent seeks a Washington domestic violence protection order (“DVPO”), they may want to include their minor children as protected parties.  If the protection order is against the other parent, it can affect that parent’s visitation and custody.  In a recent case, a mother appealed a DVPO that did not include her three-year-old child as a protected party.

The appeals court’s opinion stated the mother had petitioned for a protection order to protect herself and her child against her boyfriend, who was also the child’s father.  She requested an order restraining him from any contact with her or the child, from coming within 1,000 feet of her home or workplace or the child’s daycare.  She asked for sole custody of the child.  She asked the court to order the father to participate in treatment or counseling.  She requested the order be effective for over a year.

She alleged multiple incidents of domestic violence by the father, including incidents in which she said he shoved her and threatened her.  She stated the father was under investigation for an incident in which he threw her against the wall and to the floor, choked her, and banged her head against the floor.  She alleged this incident occurred in front of the child.

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A court issuing a Washington domestic violence protection order (“DVPO”) must also order the surrender of firearms, dangerous weapons, and concealed pistol licenses. The restrained person must file a proof of surrender and receipt or a declaration of nonsurrender within five days.  RCW 9.41.804. The restrained person must prove by a preponderance of the evidence that they have surrendered all dangerous weapons. A petitioner recently appealed a court’s finding the respondent was in compliance with the order to surrender.

According to the appeals court’s unpublished opinion, the petitioner testified the respondent became violent and controlling during their relationship.  She said he had threatened to shoot up her friend’s house if she did not come out and then forced her into the car at gunpoint. She testified he took her to a deserted parking lot and ripped her shirt off, pulled her hair, and strangled her, while pointing a gun at her. She alleged he sent her photos of himself holding guns and photos of guns along with threatening text messages.

She petitioned for an order of protection. Although initially denied, she was granted a second hearing due to procedural issues.  The petitioner testified and presented declarations from her mother and a witness. She presented evidence of threatening photographs of firearms the respondent sent her.  The appeals court noted there were five firearms shown in the pictures, which were all taken either in the respondent’s room or his mother’s car.

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Washington domestic violence protection orders (“DVPOs”) protect abused spouses, romantic partners, and family and household members.  The court may order the DVPO for a fixed period of time, in many cases, one year.  The petitioner may seek a renewal of the DVPO and, under current RCW 7.105.405, the petitioner does not have a burden to prove they have “a current reasonable fear of harm. . .” Instead, the respondent has the burden to prove they will not resume acts of domestic violence.  In some cases, however, a DVPO may be inadvertently allowed to expire.  A former husband recently challenged a DVPO protecting his former wife and their children after the previous DVPO was allowed to expire.

The parties shared custody of their two children following their divorce in 2019.  According to the appeals court’s opinion, the ex-husband tried to force his way into the ex-wife’s home and injured her.  She sought a domestic violence protection order (“DVPO”).  The court issued a DVPO protecting the ex-wife and the children for one year.  The order also limited the ex-husband’s residential time with the children to a weekly four-hour supervised visit.  The ex-wife sought renewal in June 2021. Thereafter, the DVPO was extended through agreed short-term orders and ultimately expired in January 2022.

The ex-wife sought another DVPO in February 2022, alleging she allowed the prior order to expire accidentally.  She stated she was still afraid of the ex-husband and that she thought she and the children were only safe because of the protection order.  She also stated she had moved to modify the parenting plan to limit the ex-husband to supervised visits, but that motion was still pending.

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