Domestic Violence

Washington Divorce Granted Despite Party’s Incapacity

September 27, 2021 | by Blair & Kim, PLLC

A court must appoint a guardian ad litem when a party to an action is incapacitated and does not have a guardian. RCW 4.08.060. In In re Marriage of Gannon, the Washington Supreme Court held that a guardian or guardian ad litem may pursue a Washington divorce on behalf of an incompetent ward if it is in the ward’s best interests, noting that never allowing divorce to be pursued on behalf of the incompetent spouse would allow the competent spouse “absolute, final control over the marriage” and such a result was “not equitable.” The trial court must hold a hearing to determine whether dissolution is in the ward’s best interest.

In a recent unpublished case, an appeals court considered whether the trial court properly granted a divorce. According to the appeals court’s opinion, the parties married in 1989. The husband was diagnosed with Alzheimer’s disease in 2014. The parties started having arguments, including a physical altercation in 2016. The wife testified that she told the husband she was afraid he would kill her if she stayed with him. A neighbor testified the husband came to his house and said he could not go home because he was afraid he would be killed. The neighbor testified the husband asked him to call the police. The police arrested the wife.

The husband’s children tried to obtain a vulnerable adult protection order, but were unsuccessful. The wife requested a Guardian Ad Litem for her husband, stating she wanted to maintain their finances and control over his healthcare decisions. The husband signed a durable power of attorney for healthcare and durable power of finances. He stated he wanted a divorce.

Washington Court Denies Renewal of Domestic Violence Protection Order

August 10, 2021 | by Blair & Kim, PLLC

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.

Body Cam Footage and the Confrontation Clause in Washington Domestic Violence Case

July 26, 2021 | by Blair & Kim, PLLC

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.

Felony Violation of a Protection Order in Washington

November 4, 2020 | by Blair & Kim, PLLC

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.

Washington Court Cannot Grant Sole Decision-Making Authority to Parent with History of Domestic Violence

October 23, 2020 | by Blair & Kim, PLLC

Domestic violence can affect all aspects of family life, including child custody. Pursuant to RCW 26.09.191(1)(c), a final parenting plan cannot require the parents to engage in mutual decision-making where the court finds a parent engaged in a history of domestic violence. A mother recently appealed a court order granting the father sole decision-making after the court found he had a history of domestic violence.

A few days after the father filed for divorce, the mother called 911 and reported a domestic assault. The father told police she had attacked him. The mother was arrested and a criminal no-contact order was issued to prevent her from contacting the father or going to the family home. The father also obtained a temporary restraining order preventing her from contacting him or their children.

Each party petitioned for a domestic violence protection order (DVPO) as part of the divorce proceeding. The court reissued the father’s temporary restraining order, but removed the children from it. It also reissued the mother’s temporary DVPO. The court granted the mother weekend residential time with the children and appointed a guardian ad litem.

Washington Appeals Court Affirms Violation of No-Contact Order Conviction Supported by Video Surveillance

July 7, 2020 | by Blair & Kim, PLLC

Article I, section 7 of the Washington State Constitution provides individuals a privacy right that is greater than the protection provided by the Fourth Amendment to the U.S. Constitution. A search occurs under article I, section 7, when the government disturbs a citizen’s privacy interests that the citizen should be entitled to have safe from government interference without a warrant. Courts consider the nature and extent of the information the government may obtain through its conduct. An officer observing something through his or her own senses is not a search under this section, if the officer is in a location he or she is lawfully allowed to be. Officers may use tools that enhance their natural senses, such as binoculars or flashlights, but equipment that does more than enhance the senses may require a warrant. Law enforcement needs a warrant to use infrared thermal devices to observe heat patterns in a home or to track a private vehicle with a GPS device.

In a recent case, a defendant challenged his conviction of two counts of felony violation of a domestic violence no-contact order that involved video surveillance evidence. He had previously pleaded guilty to misdemeanor counts of violation of a domestic violence no-contact order under a previous order. According to the appeals court’s opinion, a detective initiated an investigation after an investigator with the Prosecuting Attorney’s Office encountered the defendant in the parking lot of his wife’s apartment building. The detective had surveillance cameras installed on a telephone pole. In the videos, she saw someone she believed to be the defendant walking toward the defendant’s wife’s apartment. The police then obtained a search warrant. When they executed the warrant, they found the defendant standing outside an open window. They also found his mail and clothes in the bedroom. He was arrested and charged with residential burglary and two counts of felony violation of a domestic violence order.

The defendant sought to suppress the video surveillance evidence, arguing the police violated his rights under both article I, section 7, and the Fourth Amendment. He also argued the police were not allowed to install the surveillance cameras on telephone poles. The trial court found the cameras were directed to public areas and the parking lot, not the defendant’s wife’s apartment. The court also found the defendant did not have standing to raise the telephone pole issue. The trial court denied the defendant’s motion to suppress the video evidence.

Error in Washington Protection Order Does Not Necessarily Invalidate the Order

November 26, 2018 | by Blair & Kim, PLLC

When a Washington civil protection order is issued, the parties generally know who the protected party is. In some cases, however, there may be errors in the identification of the protected party in the order. A defendant recently challenged his conviction for violation of a domestic violence court order because the domestic violence no-contact order identified a race for the protected party that did not match his wife’s race.

In 2013, the court issued a domestic violence no-contact order that prohibited the defendant from contacting a named individual. The order included the protected party’s birthdate. It included a finding of fact that the protected party was the defendant’s “[i]ntimate partner.” The name and birthdate of the protected party matched that of the defendant’s wife. The order also stated the protected party was a black female. It expired in July 2018.

According to the appeals court’s opinion, the defendant’s wife called 911 in February 2017 and reported that the defendant had assaulted her. The defendant told the responding officer that his wife had assaulted him at her home. He acknowledged there was a no-contact order that prohibited him from contacting his wife, but stated he thought it had expired.

The Fifth Amendment, Washington Domestic Violence, and Protection Orders

October 30, 2018 | by Blair & Kim, PLLC

In many Washington domestic violence cases, a person faces criminal charges as well as a petition for a civil protection order. When there are “parallel” civil and criminal proceedings, there would be a risk that the criminal defendant may be compelled to incriminate himself or herself in the civil proceedings if not for the protections of the Fifth Amendment. In addition to protecting the defendant during the criminal trial, the Fifth Amendment also allows a person to refuse to answer official questions in other proceedings if the answer might tend to incriminate the person in future criminal proceedings. Washington courts do not automatically delay the civil case until the criminal case is over. Instead, they apply a balancing test based on several factors identified in King v. Olympic Pipeline Company, LLC to determine if the civil case should be stayed.

King was a wrongful death case following a pipeline rupture that resulted in a fire that killed three people. A criminal investigation focused partly on some of the defendants. Those defendants sought a limited partial stay of discovery in the civil case to preserve their Fifth Amendment right and the right to fully defend themselves in the civil case. The trial court denied their motion and the appeals court reviewed.

The Washington Appeals Court adopted factors considered by federal courts in parallel proceedings, noting that it was not necessarily an exhaustive list. The court must balance the factors in light of the circumstances and competing interests of the case.

Washington No-Contact Order Precludes a Defense of Property Defense

October 1, 2018 | by Blair & Kim, PLLC

Photo Credit: Lukatme / Shutterstock.com

Violation of a Washington no-contact order is generally a gross misdemeanor. In some circumstances, however, it can be elevated to a class C felony if the violation includes an assault. Defense of property can be an affirmative defense to assault. The Washington Supreme Court has recently reviewed a case in which the defendant sought a jury instruction on defense of property as an affirmative defense to felony violation of a no-contact order.

According to the Court’s opinion, the defendant checked his car after thinking he saw someone near it. His phone and other items were missing. The defendant saw his former girlfriend walking down the street. There was a no-contact order prohibiting the defendant from coming near or having any contact with her at the time. He followed her and tried to take her purse to retrieve his phone. A witness testified to seeing a man hit a woman, then lift her off the ground and slam her back down. According to the appeal court’s opinion, the defendant denied hitting her.

The defendant was charged with felony violation of a no-contact order predicated on assault. He requested a jury instruction on defense of property. The judge, however, found he “was acting offensively, not defensively…” and was not entitled to the instruction. The jury convicted the defendant, and he appealed, arguing he had been improperly denied the jury instruction. The appeals court affirmed, finding the defendant was not entitled to the defense because he used force to try to recover the property, not prevent its theft.

Washington Court May Order Domestic Violence Treatment

September 14, 2018 | by Blair & Kim, PLLC

Photo Credit: Tiko Aramyan / Shutterstock.com

When a court sentences a defendant to community custody in a Washington criminal case, there are some conditions the court must impose and others that the court may impose in the court’s discretion. These conditions are set forth in RCW 9.94A.703. Pursuant to the statute, the court may require an offender to “[p]articipate in crime-related treatment or counseling services” or “in rehabilitative programs” that are reasonably related to the offense, the risk of reoffending, or community safety. Additionally, a court may order an offender convicted of a domestic violence crime to participate in a domestic violence perpetrator program, if either the offender or the victim have a minor child.

In a recent case, a defendant challenged the imposition of domestic violence treatment. The defendant was convicted of second degree assault, unlawful imprisonment, and felony harassment of his former girlfriend. The jury found the defendant and the victim were members of the same family or household.