Articles Posted in Civil Protection Order

Some custody cases can become so acrimonious they result in Washington civil protection orders and even criminal court.  In a recent unpublished case, a mother challenged her convictions of felony harassment and felony violation of a protection order.

When the parents divorced, the mother was awarded sole custody of the children.  After the father obtained treatment for a brain injury he incurred in the military, he was given visitation. The mother would not comply with the visitation order and the father was given sole custody in September 2018.

According to the appeals court’s opinion, the father found the mother attempting to break in to his home the day he took custody. She physically attacked him and his father.

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Washington domestic violence protection orders must be supported by a preponderance of the evidence that domestic violence occurred. Domestic violence protection order proceedings are not subject to the same rules of evidence as other types of cases. A court may rely on evidence, such as hearsay, that would not be allowed in other types of proceedings. In a recent unpublished case, a father challenged a domestic violence order against him, arguing in part there was not credible evidence supporting it.

When the parents divorced, the trial court entered a permanent restraining order prohibiting the father from contacting the mother except for reasons related to the children.  The trial court in the divorce proceeding found the father engaged in domestic violence and abusive use of conflict. The court also ordered the father to participate in parenting classes and domestic violence treatment.

Several years later, the children told their mother that they were afraid of their father and did not want to go back to his home.

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The Washington legislature recently passed legislation that makes significant changes to Washington civil protection order law. The legislation expressed an intent to clarify and simplify civil protection laws, in part to provide greater access to protection orders and the related court processes.  To further this goal, the new legislation consolidates the six types of civil protection orders into one chapter of the Revised Code of Washington (“RCW”).  The laws relating to the different types of orders were previously scattered in multiple chapters of the RCW.

The new legislation also requires the administrative office of the courts to review the different approaches to jurisdiction for the different types of protection orders and evaluate “whether jurisdiction should be harmonized, modified, or consolidated. . . .”  This review is to be done through the state supreme court’s gender and justice commission with support from the state women’s commission.

The new laws also require the administrative office of the courts to develop a single form that may be used for five of the types of civil protection orders, excluding only extreme risk protection orders. Courts will be required to allow petitions to be submitted electronically. Superior courts must meet this requirement by January 1, 2021 and all courts of limited jurisdiction must do so by January 1, 2026. Courts must also implement electronic tracking of the case by the petitioner and respondent within that same timeframe.

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When a court grants a Washington domestic violence protection order for a fixed period of time, the petitioner may seek a renewal up to three months before it expires.  A petition for renewal should be granted unless the respondent shows he or she will not resume domestic violence upon the expiration of the protection order.  The respondent must make this showing by a preponderance of the evidence. RCW 26.50.060.

In a recent case, a mother challenged the denial of renewal of an order of protection.  The court had originally granted her a one-year domestic violence protection order against her children’s father protecting the mother and their two children.  The trial court found the father had harmed one of the kids and the mother was afraid for their safety.  The father was prohibited from abusing the mother and children.  The children were subject of a dependency proceeding, so the father’s contact with them was subject to the custody of the Department of Children, Youth and Families.

The mother petitioned to renew the protection order.  She claimed the father scratched the children during his visitation with them. The trial court held a hearing where the mother, her mother, a polygraph examiner, and a Department of Children, Youth and Families social worker testified. Other evidence included a letter and a report from the Department of Children, Youth and Families.

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Washington criminal defendants have a right to confront the witnesses against them pursuant to the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. This means a defendant generally has the right to cross-examine witnesses who provide testimonial evidence against the defendant  at trial.  In cases involving charges related to domestic violence or violation of a no-contact order, victims may not want to testify. In a recent case, a defendant challenged his convictions after body camera footage and a 911 recording were presented at trial.

The mother of defendant’s children called 911 and asked for help, stating “He keeps following me!” There was also a male voice on the recording, saying “Give me the phone.”  When police arrived, the children’s mother told them there was a no-contact order.  She said the defendant had been pushed her, threatened to kill her, and stole her phone.

The police found the defendant a short distance away.  He had a phone in his possession.

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Washington juvenile courts may impose “local sanctions” for certain low level offenses committed by a juvenile offender.  Local sanctions include up to 30 days confinement, up to 12 months community supervision, up to 150 hours community restitution, or up to a $500 fine. RCW 13.40.020(18).  The juvenile court may impose conditions on a juvenile defendant sentenced to local sanctions pursuant to its authority to impose community supervision. If a juvenile defendant is sentenced to more than 30 days, however, he or she must be committed to DCYF.  RCW 13.40.160. The juvenile offender may be subject to conditions as part of DCYF’s parole program after the sentence has been completed.  Certain conditions are required under the parole program, while others are permitted.  The statute specifically permits the secretary to prohibit the juvenile offender from having contact with specific people or classes of people. RCW 13.40.210(3)(b)(ix).

Recently, a juvenile defendant appealed a court’s order prohibiting him from contacting the victims of his offense. According to the appeals court’s opinion, the juvenile defendant fired a flare gun into a house resulting in a small fire.  Three people were inside.

The defendant ultimately pleaded guilty to first degree arson in juvenile court. The court ordered him to 103 to 129 weeks in a Department of Children, Youth, and Families (“DCYF”) rehabilitation facility. The state requested a no-contact order for the people who had been inside the house. The court’s disposition order contained a provision prohibiting the defendant from contacting those three people for an unstated period of time.  The court also imposed a 10-year no contact order.

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Washington civil protection orders provide important protections for victims of harassment, stalking, and relationship violence. In some cases, however, a person may abuse the process and seek a protection order for another reason.  In a recent case, a woman challenged a court’s finding her petition for an anti-harassment order was frivolous.

The petitioner and her husband built a fence that crossed onto their neighbor’s property in 2018.  Following a letter from his attorney, the neighbor sued them. They failed to respond and a default judgment was entered. Even after being served with the judgment, the petitioner and her husband did not take down the fence.

The trial court ordered the sheriff’s office to help remove the fence in November 2019.  A few days later, the neighbor died and his property passed to his brother and sister. The brother and his family went to the property to talk about the fence.  The petitioner approached them and asked who they were and why they were there.  The brother told her they now owned the property and were preparing to remove the fence the next week with the sheriff.  He asked her to confine her horses so they would not get out.  She offered to buy the property, but was rejected.

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Parents in Washington want to do what they can to protect their children from harassment. A parent may petition on their child’s behalf for an anti-harassment protection order.  A parent’s ability to seek a protection order against another child, however, is more limited.  In such cases, the other child must have been “adjudicated of”  or investigated for an offense against the protected child.  RCW 10.14.040(7).  A high school student recently challenged a protection order issued against her on the grounds it was not permitted under RCW 10.14.040(7).

Two high school students were involved in some sort of conflict. The appeals court’s opinion identified the two minor students by the initials A.R.S. and K.G.T.  According to the court’s opinion, A.R.S. repeatedly threatened to assault K.G.T.

They met in the bathroom to resolve their differences.  A.R.S. shoved K.G.T. A teacher intervened and stopped the incident.  The assistant principal subsequently addressed it as a disciplinary issue and suspended K.G.T. for one day and A.R.S. for three.

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The Fifth Amendment to the U.S. Constitution and the Washington Constitution both protect individuals from being charged multiple times for the same offense.  Generally, in a Washington criminal case, a defendant may only be charged with multiple counts of the same crime if each is based on a separate criminal act.

A defendant recently challenged his convictions for violation of a court order, arguing that multiple convictions for violation of separate no-contact orders violated double jeopardy principles when the charges were all based on the same act.

There were three no-contact orders entered against the defendant protecting the same person.  After the defendant contacted that person, he was arrested and charged with violation of a court order.

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A person who repeatedly violates a Washington protection order may be charged with a felony.  Violation of certain protection orders is a class C felony when the defendant has at least two previous convictions for violating a protection order. RCW 26.50.110(5).  The defendant in a recent case appealed a felony violation of a no-contact order conviction arguing that the alleged action that constituted the violation was not itself a crime.

The defendant and his wife separated after 10 years of marriage.  When they separated, they lived in a trailer on the wife’s parents’ property, and she remained there after the separation.  A domestic violence no-contact order was issued against the defendant prohibiting him from keeping his wife under surveillance.  The defendant was convicted of violating the no-contact order twice before the events that led to this case.

The defendant asked a deputy to perform a welfare check on the animals at his wife’s trailer.  After learning a friend was caring for the animals, the deputy asked why the defendant was concerned about the animals.  He told her a code enforcement officer told him he issued a letter prohibiting the wife from living in the trailer.

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