Articles Posted in Civil Protection Order

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  In an unpublished opinion, a Washington appeals court recently reviewed a domestic violence protection order, granted partly upon a finding that the husband had engaged in acts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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A Washington Domestic Violence Protection Order (“DVPO”) may order a respondent to participate in state-certified treatment, and failure to do so may be considered if the petitioner seeks renewal. A respondent recently challenged renewal of a DVPO, arguing the court should have considered his relocation and participation in an out-of-state treatment program.

According to the appeals court’s opinion, the petitioner and respondent were a married couple living in Montana when they separated in 2018. After moving to Washington, the wife sought a Domestic Violence Protection Order (“DVPO”). A court commissioner issued a DVPO for one year, requiring treatment and counseling in a domestic violence perpetrator program approved by Washington’s Department of Social and Health Services (“DSHS”).

The petitioner sought renewal of the order in 2020.  The petition stated she still feared the respondent and future violent acts if the order was allowed to expire.  She also stated she was afraid to visit her daughter, who lived in the same town as the respondent, without a DVPO.  The respondent argued he was not a threat to the petitioner because he was still living in Montana.  He offered evidence he had completed a Montana domestic violence treatment program.

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Violation of a Washington civil protection order can result in serious criminal charges.  A woman recently challenged her conviction for stalking and sentence for convictions for violation of a protection order, stalking, and malicious mischief.

The defendant was in a romantic relationship with a man for several years.  According to the appeals court’s opinion, she made a number of allegations against him and his ex-wife after the relationship soured.  The ex-boyfriend sought a protection order shortly after they broke up in 2015.

He testified the protection order did not stop her from continuing to harass him and his children.  He said she kept making false allegations related to pornography.  He obtained another protection order in July 2017 and a third in August 2018.

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