No-Contact Orders in Washington Sentencing

A person has a fundamental right to parent his or her own natural children.  When a court places a sentencing condition on a person that limits those fundamental rights, it must consider whether there are reasonable alternatives that will further the state’s interest.  If there are no reasonable alternatives, the court must narrowly tailor the condition.  Washington domestic violence attorneys handling these cases must understand the family law implications of any sentencing conditions imposed by the court. This issue recently arose in a case before the Washington Court of Appeals.

The couple had three children together.  In 2015, there were no-contact orders in place keeping the husband from contacting the wife of the six-year-old daughter.  Sheriff’s deputies believed the husband was at the wife’s residence.  They did not receive a response when they first knocked on the door, but the wife ultimately answered and let them in.

One of the deputies found a locked door and heard noises from inside the room.  He forced the door open and found men’s clothing and shoes.  The window was open, but the deputies had observed it to be closed when they walked around the house before entering.

A police dog and helicopter tracked the husband to some bushes.  The state charged him with two counts of felony violation of a court order, one count for violating each no-contact order.  The jury convicted him of both counts, finding an aggravated domestic violence offense that was part of an ongoing pattern of abuse.  He was sentenced to a total of 60 months’ confinement and 12 months’ community custody to be served consecutively, due to the domestic violence aggravator.  Additionally, the defendant was ordered to have no contact with his wife or daughter for 10 years.  The husband appealed.

He argued there was insufficient evidence to support the violation of the no-contact order involving his daughter.  The order prohibited the husband from knowingly entering, remaining, or coming within 500 feet of his daughter’s residence or person.  There was no evidence he had come within that distance of the child, so the case depended on the wife’s home being the child’s residence.

The husband argued the state had not proven the child lived at her mother’s home.  No witness testified with personal knowledge that the child lived there.  The court noted that there was, however, circumstantial evidence supporting a conclusion that the child lived there.  A Child and Family Services investigator testified to seeing the girl at the home six times in 2015 before the husband’s arrest.  The investigator testified she believed the wife’s home was the child’s home and had no reason to believe the child lived anywhere else.  The appeals court found the jury could have reasonably inferred the wife’s home was the child’s residence.

The husband argued an open Child Protective Services (CPS) case showed the child might have been removed from the wife’s care.  The appeals court found nothing in the record corroborating the husband’s claim of an open investigation or showing the child had been removed.

The appeals court concluded sufficient evidence supported the jury’s verdict as to the count involving the child, and nothing in the record conclusively rebutted the evidence the child lived with the wife.

The appeals court found, however, there was insufficient evidence supporting the domestic violence designation as to the count involving the daughter, due to an error in the jury instructions.

The appeals court further found that nothing in the record indicated the trial court considered the husband’s fundamental rights as a spouse and parent when it issued the 10-year no-contact order.  The appeals court also questioned the trial court’s reasoning in granting the order as to the child, which seemed to be based on the harm caused to children witnessing domestic violence.  The appeals court found the trial court should have “conducted more thorough and individualized analyses…”  In failing to consider less restrictive alternatives and tailor the order’s scope, the trial court abused its discretion.  The appeals court remanded, instructing the trial court to consider the constitutional limitations on the sentencing conditions and whether family or juvenile court would be a better forum for addressing contact between the defendant and his child.  The appeals court noted that the trial court should include a description of how to modify any sentencing condition it imposes limiting the defendant’s contact with his daughter.

Although the defendant’s conviction stands, the case has been remanded for resentencing, due to both the domestic violence designation and the no-contact orders.

If you are facing a situation involving domestic violence, you need a skilled Washington domestic violence protection order attorney to assist you.   The attorneys at Blair & Kim, PLLC, are well-versed in the law involving criminal defense, family law, and civil protection orders.  Call us at (206) 622-6562 to discuss your case.

More Blog Posts:

Parallel Domestic Violence Protection Order and Criminal Proceedings in Washington

Washington Protection Order Violations and Burglary


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