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Articles Posted in Family Law

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.

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Parents have a liberty interest in their fundamental right to autonomy in raising their children.  Courts must therefore give weight to a parent’s decision to deny visitation to the child’s grandparents. A court can only order Washington grandparent visitation over the objection of a fit parent if the grandparent shows that denying visitation would be harmful to the child.  A grandmother and stepgrandfather recently challenged a court’s denial of their petition for visitation.

In July 2015, the mother moved with the children to Washington where her mother and stepfather lived from Las Vegas.  The mother moved with the children to Oregon the following November.  The father filed for divorce in June 2016.  The mother brought the children back to Washington to stay with her mother and stepfather. She died of suicide that October.

The father did not immediately take the children.  According to the appeals court’s opinion, he said he needed help taking care of things after the mother’s death.  He also said the children were in school in Walla Walla, and he was focused on getting transferred to the Air Force Base in Spokane.

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When parents separate, there often comes a time when one of them wants to move.  Relocation can cause issues with co-parenting.  Under Washington family law, when a custodial parent wants to move with the child, there is a rebuttable presumption the move will be allowed.  The other parent may rebut the presumption by showing the benefit of the move is outweighed by its detrimental effect, based on several factors.  Those factors include: the child’s relationship with each parent and other significant people in their life; any agreement between the parties; which relationship it would be more detrimental to disrupt; whether there are restrictions under RCW 26.09.191; the reasons for each parent’s position and whether they are requesting or opposing the relocation in good faith; how the relocation would affect the child’s development; the resources and opportunities available in the current and proposed locations; ways to continue the child’s relationship and access to the other parent; alternatives to relocation; and the financial impact and logistics of relocating or not relocating.

In a recent case, a mother challenged the parenting plan entered by the court.   The couple had lived together with the father’s mother and the mother and child continued to live there after they separated.  The mother subsequently petitioned for a parenting plan and asked to move from Spokane to Medical Lake, where her boyfriend lived.

The trial court considered the factors in RCW 26.09.187.  Under Washington family law, a court must consider certain factors when determining the parenting plan.  These factors include the child’s relationship with each parent, past and potential future parenting performance, the child’s needs and emotional development, the child’s relationship with others, his environment, and his activities, the wishes of the parents and of the child if he is mature enough to express a reason and an independent preference, and the parents’ employment schedules.  RCW 26.09.187.

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Washington family law recognizes the Committed Intimate Relationship (CIR) doctrine, which was judicially created to resolve the property distribution issues of unmarried couples who had acquired property that would have been community property if they had been married.  If a court determines there was a CIR, the court must make a just and equitable distribution of the community-like property acquired during the CIR.

A party must file a petition to distribute property acquired during a CIR within three years of the date the CIR ends.  In a recent case, a mother challenged the property distribution, arguing it was unjust and inequitable and that the father had filed the petition after the statute of limitations had passed.

According to the appeals court’s opinion, the couple started dating in 2004 and moved in together in 2005.  In 2011, a house was purchased in the mother’s name with only her name on the mortgage.  In 2012, the couple’s son was born. In 2016, the mother went to Mexico with the son.  According to the mother, the locks on the house were changed when she got back.

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Under Washington family law, spousal maintenance may generally only be modified upon a “substantial change in circumstances.” RCW 26.09.170.  In considering whether a substantial change has occurred, the court should consider the spouse’s ability to pay in relation to the other spouse’s financial need.  A substantial change must not have been contemplated when the original order was issued.  A former wife recently challenged modification of the spousal maintenance her former husband was ordered to pay following loss of his job and reemployment.

At the time of the divorce in September 2017, the court found the husband was earning more than $10,000 per month net. The wife had retired after working for the armed forces for 40 years, and was unable to work due to health issues.  Her net income was more than $4,000 per month.  The court ordered the husband to pay the wife $3000 per month in spousal maintenance and noted it intended to equalize their standards of living.

The husband lost his job in December.  He moved to suspend his spousal maintenance in February.  The commissioner granted his motion and ordered him to notify the wife when he obtained employment.  The husband got a job as a chief engineer in April but failed to notify the wife until July.

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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.

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When a couple reaches an agreement regarding their divorce, it is not uncommon to agree that any disputes regarding the agreement are subject to arbitration. Generally, Washington law favors arbitration. In a recent case, however, a husband challenged a court’s decision not to refer a matter to arbitration.

The couple established a business during their marriage.  The husband ran the business and the wife raised their children.  The husband had developed a gambling compulsion and lost $185,000 in the year before the divorce.

The wife filed for divorce and asked for a restraining order keeping the husband from conducting the business’s finances.  The court granted the wife full authority to run the business “in a fiscally responsible manner.”

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Courts handling Washington child custody cases should base their determinations regarding parental responsibilities on the best interests of the child.  The court has broad discretion in determining the parenting plan.  However, the court must place restrictions on a parent’s decision-making if it finds he or she has a history of domestic violence.

A Washington appeals court recently reversed a parenting plan that allowed joint decision-making despite a history of domestic violence.  The parents divorced in 2014.  The final parenting plan required the father to meet with a doctor to address domestic violence issues before his summer residential time with the children.  The parenting plan also required him to get a certified evaluation regarding domestic violence and follow any treatment recommendations.

The plan also awarded the mother sole decision-making until the court heard from the domestic violence counselor or evaluator.  The order provided that there would be joint decision-making after the father met the requirements regarding domestic violence.

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Once a Washington divorce decree is issued, a maintenance award can only be modified by the court when the party seeking the modification shows a substantial change in circumstances.  A fact unknown to the trial court or an unanticipated fact that arises after the decree is entered may constitute a substantial change in circumstances.  In a case involving spousal maintenance, commonly referred to as “alimony,” a substantial change may involve a significant increase or decrease in income.  In a recent case, the ex-wife sought to continue maintenance when her ex-husband decided not to retire at the time they had previously expected him to do so.

The divorce decree required the husband to pay spousal maintenance in the amount of $1100 per month for 48 months.  The wife sought to extend the maintenance four years later.  She alleged there was a substantial change in circumstances because the husband had not retired from the military as she had expected.  If he had retired, she would have started receiving part of his retirement benefits when the maintenance payments stopped.  She provided an email from the husband in which he stated he would pay the maintenance “until [he] got out.” The husband told her he was not ready to retire in December 2016, and suggested he would not do so until 2019.  The wife requested the maintenance continue until the husband’s retirement. She also requested attorney fees in her reply declaration.

The commissioner denied the wife’s motion, finding no substantial change in circumstances.  The commissioner also granted the husband’s motion to strike the wife’s request for attorney’s fees and denied the request.

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Washington child custody rules do not favor modifying parenting plans to decrease visitation.  A court may, however, modify a parenting plan if it finds, based on information that occurred after the decree or that was unknown to the court at the time, that there has been a substantial change that makes a modification necessary to serve the child’s best interests.  RCW 26.09.260.  Additionally, restrictions or limitations may be appropriate when certain circumstances are present.  A court may, for example, preclude or limit a provision in the parenting plan if the parent’s involvement is not in the child’s best interest, and one or more specified factors are present.  Those factors include neglect, long-term impairment, and withholding access to the child from the other parent.  Additionally, one of the listed factors is essentially any other factor the court finds to be adverse to the child’s best interests.  RCW 26.09.194.  Even when a court does place limitations or restrictions on visitation, it may put something in place to allow the parent to work toward resuming regular visitation.  This process may include working with a counselor or therapist to ensure that resumption of the visitation is in the child’s best interest.

A mother recently challenged a court’s restriction on her visitation on a number of grounds, including the engagement of a counselor to make recommendations on reinstating visitation.  The previous parenting plan ordered the daughter to reside with her father and visit her mother every other weekend.

The mother petitioned for increased visitation when she married several years later.  The father petitioned to decrease her visitation, alleging physical and emotional abuse of the daughter, domestic violence in the mother’s home, and abusive use of conflict.  The trial court granted the father’s petition and suspended the mother’s visitation for 45 days.

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