Civil Protection Order

No Blanket Rule Against Live Testimony and Cross-Examination in Washington Protection Order Cases

April 15, 2020 | by Blair & Kim, PLLC

Courts in Washington protection order cases do not always have to allow live testimony or cross-examination, pursuant to the Domestic Violence Prevention Act. The trial court or commissioner should perform a balancing test, weighing the value of cross-examination against the potential harm to the witness. The Washington Supreme Court has stated that courts must conduct “individual inquiries” to determine if live testimony or cross-examination is appropriate in the particular case. Courts are not allowed to issue a “bright line rule” to prohibit testimony or cross-examination in protection order hearings.

A man recently challenged the denial of his request to cross-examine the petitioner and present his own testimony in a protection order hearing. The petitioner petitioned for a domestic violence protection order against the respondent.

A temporary protection order was entered. At the hearing, the commissioner allowed the petitioner to speak to “add to her declaration.” The commissioner denied the respondent’s attorney’s request to cross-examine the petitioner and present testimony. The commissioner stated, “I’m not going to take testimony at these hearings” and referenced Gourley v. Gourley. The respondent’s attorney argued that case did not hold that cross-examination was always inappropriate in protection order cases. The commissioner stated that the respondent could testify only by submitting a declaration. The respondent agreed to a continuance so he could submit documentary evidence.

Washington Father Not Required to Pay Mother’s Attorney Fees after Seeking Protection Order and Custody Modification

March 23, 2020 | by Blair & Kim, PLLC

Sadly, suspicions or allegations of abuse sometimes arise in Washington custody cases. Although there may be circumstances where a party makes an allegation in an attempt to affect the custody case, some parents have sincere concerns about their children. A father recently challenged an order that he pay the mother’s attorney fees related to his motion to modify the parenting plan after he sought a protective order against the mother.

The father claimed he noticed injuries on the child after he picked her up from the mother’s home in June 2017. He said he asked her about them, and she said words in her native language that translated to “Ouwie,” “Hit,” and “Mama.” He took the child to the doctor and the doctor reported finding bruising with small abrasions on her feet and linear areas of bruising on her upper inner forearm. The doctor contacted CPS.

The father claimed he noticed more bruising after picking the child up a few days later. He took her back to the doctor and a nurse practitioner examined her and noted she had bruising on her right periorbital area and healing bruising and abrasions on the top of her feet. The nurse practitioner called CPS, and they recommended calling the police and seeking a protective order. The nurse practitioner called the father and recommended he seek a protective order and not return the child to the mother.

Washington No Contact Order Violation Conviction Upheld Where Protected Party Said She Planned to Drop the Order

February 6, 2020 | by Blair & Kim, PLLC

When a Washington civil protection order is in place, any contact with the protected party could result in a charge for a violation of the order. In a recent case, a defendant challenged his conviction for violation of a no contact order, claiming the state did not prove he knowingly violated the order because the protected party told him she had dropped it.

The defendant was stopped for driving with a broken taillight. The officer discovered the vehicle belonged to the passenger and that she was the protected party in a no-contact order against the defendant. The officer arrested the defendant.

The defendant told the officer he knew about the no-contact order, but the protected party said she had taken care of it or was having it dropped. The protected party also told the officer she intended to drop the no-contact order.

Washington Parents May Use Reasonable and Moderate Physical Discipline

December 30, 2019 | by Blair & Kim, PLLC

A person who has experienced domestic violence may seek a protection order with the assistance of a Seattle civil protection order lawyer. Courts may order a protection order based upon violence against a child. Washington law does, however, recognize a parent’s right to physically discipline his or her child, as long as that discipline is reasonable and moderate. An incident of reasonable and moderate physical discipline should not lead to the issuance of a protection order.

A father recently challenged a protection order, claiming that the incident in question was discipline rather than assault. The mother had petitioned for an order of protection against her former husband, alleging that he had assaulted the mother and their son. A judge issued a temporary order of protection, prohibiting the father from having contact with his former wife and their three children.

The father filed opposing declarations, disputing most of the accusations. He did admit, however, that he had recently slapped his 11-year-old son’s cheek for talking back. A police report indicated that the responding officers did not see any marks on the child’s face.

Washington Prosecutor Does Not Have to Stipulate No-Contact Order

September 6, 2019 | by Blair & Kim, PLLC

In a Washington felony violation of a no-contact order case, the prosecution must prove the existence of the no-contact order and the defendant’s knowledge of it. For a variety of reasons, the defense may not want the jury to see the no-contact order. A recent issue in Washington has been whether a defendant can keep a no-contact order out of evidence by stipulating to its existence and his or her knowledge of it. The Washington Supreme Court recently addressed this issue.

A court entered a domestic violence no-contact order prohibiting the defendant from contacting his girlfriend after he was convicted of a domestic violence offense. Finding the defendant was a “credible threat to [her] physical safety,” the court ordered the defendant not to come within 1000 feet of her residence.

Nevertheless, the couple lived together. According to the Washington Supreme Court’s opinion, a neighbor witnessed them having a verbal altercation outside their home. The girlfriend told the neighbor the defendant had hit her and asked them to call 911. The girlfriend told law enforcement the defendant struck her head and face repeatedly and law enforcement observed bruising and other injuries.

Weapons Surrender in Washington Domestic Violence Protection Order

August 15, 2019 | by Blair & Kim, PLLC

In certain circumstances, Washington courts ordering domestic violence protection orders must also order the restrained person to surrender his or her firearms, other dangerous weapons, and concealed pistol licenses (CPL). RCW 9.41.800. There is a standard order that courts may use. The standard order requires the restrained person to immediately surrender the weapons and CPL, get a receipt for the items surrendered, complete a proof of surrender form, and file all of the documents within five days.

In one case, a wife questioned whether the husband had truly surrendered all of his firearms after being ordered to do so. After separating from her husband and moving to Washington, the wife sought a domestic violence protection order, alleging, in part, he had threatened to shoot her. The commissioner issued the order, but found a lack of personal jurisdiction over the husband prevented her from ordering a weapons surrender.

The wife moved for revision of the order. At the hearing, the husband said no firearms were in his possession because his relatives had them. He requested a continuance. The court granted the continuance, but entered a temporary order requiring him to turn over his weapons and any CPL. The husband subsequently filed a proof of surrender form with a receipt from the sheriff’s office showing he had surrendered three guns.

Renewal of a Washington Civil Protection Order

July 15, 2019 | by Blair & Kim, PLLC

It is common for a person with a Washington temporary protection order to seek renewal before the order expires. If a victim petitions for renewal, the court must order a hearing. The burden is on the respondent to show by a preponderance of the evidence that he or she will not commit acts of domestic violence against the petitioner or the petitioner’s family or household members if the order ends. If the respondent fails to meet this burden, then the court will grant the renewal.

A Washington appeals court recently reviewed the renewal of a protection order against the petitioner’s brother. The sister sought a temporary protection order against her estranged brother in 2017. She alleged he made threats against her through her mother and other brother. She also alleged he was emotionally unstable and had firearms. The court granted a protection order for one year. During the year, they had some indirect contact through other family members.

The sister petitioned for renewal shortly before the order expired. She alleged her brother threatened to come to her home after the order expired. Both parties testified at the hearing. The evidence included voice mail transcripts and a letter from another brother.

State Must Prove Intent Element in Washington Domestic Violence Case

May 8, 2019 | by Blair & Kim, PLLC

In any criminal case, the prosecution must prove all elements of the crime, including the mens rea, or intent. Depending on the facts of the case and the crime charged, the intent element can sometimes be difficult for the prosecution to prove. This can be especially true in Washington domestic violence cases, where witnesses may be reluctant to testify.

A defendant recently challenged his convictions of assault in the second degree and misdemeanor violation of a no-contact order. He appealed, arguing there was insufficient evidence to support the convictions. He argued alternatively that there was insufficient evidence he met the “reckless” element of the assault charge. He further argued the information failed to include an essential element of the misdemeanor violation charge.

In April of 2016, a judge granted a domestic violence no-contact order to the woman the defendant had lived with.

Washington Appeals Court Denies Termination of Permanent Protection Order

March 7, 2019 | by Blair & Kim, PLLC

In some instances involving alleged domestic violence, courts may issue permanent protection orders. Even if there are no intentions to contact the protected party, a respondent may find an ongoing protection order to have other consequences and seek to terminate it. The court is to consider nine factors to determine if a substantial change in circumstances supports termination of the protection order. Only factors that address whether the respondent is likely to commit domestic violence acts against the other party in the future are to be considered. The respondent has the burden of showing the substantial change in circumstances by a preponderance of the evidence.

A man recently sought termination of a permanent protection order. According to the appeals court opinion, the man’s wife filed for legal separation and a one-year protection order after he assaulted her in 1996. The divorce decree prohibited each party from going to each other’s homes or workplaces.

In 2002, the ex-wife sought a protection order against her ex-husband on behalf of herself and their children. She alleged that he had behaved aggressively toward their son, but he denied any abuse. The court entered an ex parte domestic violence order of protection.

Washington Appeals Court Upholds Anti-Harassment Protection Order

January 24, 2019 | by Blair & Kim, PLLC

Washington civil protection orders are available to protect individuals from contact by someone who has harassed, threatened, or assaulted them. Washington has several types of protection orders that may apply in various situations, including an anti-harassment protection order. An anti-harassment protection order may be issued against a person who has harassed another. Unlike a domestic violence protection order, it does not require evidence of a particular type of relationship between the parties.

A Washington appeals court recently considered an appeal of an anti-harassment order. A woman had petitioned for an anti-harassment order against her ex-spouse’s new romantic partner. The petitioner alleged the respondent harassed and threatened her through calls, texts, and social media. The respondent was a resident of New Mexico. The court issued the temporary anti-harassment protection order and scheduled a hearing. Both women testified at the hearing. The court ultimately issued a three-year anti-harassment order prohibiting the respondent from direct or indirect contact with the petitioner. The respondent appealed.

The respondent argued the trial court did not have personal jurisdiction over her because she is not a resident of the state and has insufficient contact with the state. She also argued that there was not any evidence that any of the contact “originated in the state of Washington.” The appeals court found, however, that the statute, RCW 10.14.155, allows jurisdiction over non-residents of Washington in some situations when the conduct occurred outside the state. The statute provides for jurisdiction where the respondent’s conduct represents an “ongoing pattern of harassment that has an adverse effect on the petitioner,” if the petitioner is a Washington resident. The petitioner in this case was a Washington resident.