Seattle Attorneys Blog

Non-Custodial Parent Must Show Current Washington Custody Schedule is Impractical to Modify Based on Their Own Relocation

February 17, 2021 | by Blair & Kim, PLLC

Washington family law includes a strong presumption in favor of continuity and against modification of a parenting plan. RCW 26.09.260. A parent seeking modification of a residential schedule must show there is adequate cause before a full hearing. In a recent case, a mother challenged a denial of adequate cause to modify the residential schedule following her move to the town where her children lived with their father.

According to the appeals court’s opinion, the mother “fled” to Alabama with her two daughters and “hid them from” their father when they separated. The father filed for divorce, was awarded custody, and ultimately brought the children back to Washington. The mother moved to Spokane.

The parenting plan from 2013 indicated the children’s primary residence was in Moses Lake with their father. The mother had the children on alternating weekends, with some additional time in the summer, plus certain holidays and school breaks.

Washington Appeals Court Reverses Conviction Due to Improper Identification Testimony

February 10, 2021 | by Blair & Kim, PLLC

Identification of the defendant as the person who committed the allegedly criminal act is an important part of a Washington criminal case. When there is video of the incident, however, the jury may be able to make the identification without the assistance of opinion testimony from a witness. Identification from a video constitutes opinion testimony. A lay witness may provide opinion testimony only if it is rationally based on the witness’s own perception, helpful in understanding the testimony or determining a fact at issue, and not based on specialized knowledge. ER 701. Washington courts have held that witness identification of a defendant in a surveillance photograph may invade the province of the jury, but the testimony may be admissible in certain circumstances. A lay witness may testify about the identity of a person in a surveillance photo if the witness is more likely to correctly identify them from the photo than the jury is. This may occur when the defendant has had multiple contacts with the witness and the video is unclear or the defendant’s appearance has changed since the video was taken.

A defendant recently successfully challenged a conviction after a police officer provided identification testimony.

According to the appeals court’s opinion, the defendant went into a grocery store with a woman and a child. The woman was caught on security footage putting items in her purse, but the defendant and the child were not visible in the video at the time. A loss prevention employee saw the woman’s actions on video surveillance. The woman paid for some items, but not those she put in her purse. The group left the store together.

Student Denied Injunction Against Expulsion for Alleged Title IX Misrepresentations

January 28, 2021 | by Blair & Kim, PLLC

Allegations of Title IX violations against a student in Washington can have far-reaching consequences. As an example, in a recent case, a male student sought to enjoin his medical school from enforcing an expulsion for allegedly misrepresenting the results of a Title IX allegation in an application to the university’s business school.

Following a breakup, “Jane Roe” reported two occurrences of physical violence by her former boyfriend and fellow medical student “John Doe” to the medical school. The school began an investigation soon afterward. The investigator met with the plaintiff four times, and Roe twice. The plaintiff and Roe were given access to review the Preliminary report in March. The plaintiff provided a timely response.

In May, the plaintiff attended a hearing with his attorney. He was allowed to give opening and closing statements, answer questions, and have questions asked of all witnesses, either directly or through the panel chair.

Washington Mother Denied Child Support When Father Had Custody

January 25, 2021 | by Blair & Kim, PLLC

The Department of Social and Health Services (DSHS) has the authority to enforce a Washington child support obligation. If there is no child support order, DSHS may serve a notice and a finding of financial responsibility (“NFFR”) on the responsible parent. If the parent objects, the parent’s past liability and responsibility is determined at a hearing. RCW 74.20A.055.

A mother recently challenged an Administrative Law Judge’s denial of her request for child support. The father was ordered to pay $1,794.24 in past due child support when the parents divorced. An amended parenting plan in 2010 awarded custody of both children to the father and gave the mother limited visitation. The court found the mother “may have an adverse effect on the child’s best interests…”

The mother moved for review and adjustment of visitation rights. The court allowed expanded visits and calls, but kept the supervision requirement. In a review in January 2011, the court found she remained “a danger to her children’s safety, health, and welfare.”

Washington Appeals Court Says Juveniles Subject to Deferred Disposition Must Give DNA

January 13, 2021 | by Blair & Kim, PLLC

Juvenile defendants may have the option of “deferred disposition.” In a deferred disposition, the defendant does not contest the state’s facts. If the court finds the statement of uncontested facts is sufficient, it finds the defendant guilty. Disposition, however, is deferred pending satisfaction of the conditions ordered by the court. If the defendant meets the conditions, the conviction is vacated.

An ongoing question has been whether juvenile defendants subject to deferred disposition are required to submit a DNA sample.

A juvenile defendant recently challenged an order that required him to submit a DNA sample. The juvenile was charged with two counts of theft of a motor vehicle, which is a felony. The trial court granted his motion for deferred disposition. He objected to submitting a DNA sample, but the court overruled the objection. The court entered guilty findings on both charges and deferred disposition. The court also stayed the requirement he submit a DNA sample pending his appeal.

New Jersey Court Grants Title IX Reconsideration Based on Changed Pleading Standard in Third Circuit

January 7, 2021 | by Blair & Kim, PLLC

Title IX law is currently in a state of flux. New regulations went into effect in 2020 significantly increasing due process protections for students accused of Title IX violations. The president-elect, however, has reportedly expressed an intention to change those regulations. Courts have also played a part in the changes occurring with Title IX. One issue that has recently been the focus of several cases is the pleading standard of Title IX discipline cases. Some courts have required allegations of Title IX violation in a disciplinary process to meet specific doctrinal tests. Several circuit courts have recently broken from this requirement and applied a broader pleading standard, resulting in a circuit split.

In a recent case, a plaintiff sought reconsideration of the dismissal of his Title IX claims following a Third Circuit opinion that he argued changed the law. A male student, identified as “John Doe,” filed suit against the university in the District of New Jersey, making both an “erroneous outcome” claim and a “selective enforcement” claim under Title IX, as well as several state law claims.

The District Court had previously dismissed his Title IX claims. The plaintiff moved for reconsideration based on a recent Third Circuit decision in similar case, Doe v. University of the Sciences. The plaintiff argued the Third Circuit decision constituted an “intervening change in the controlling law” that justified reconsideration.

Washington Court Must Consider Circumstances of Youth in Sentencing Juveniles

December 3, 2020 | by Blair & Kim, PLLC

After the U.S. Supreme Court determined that mandatory life sentences without the possibility of parole for juveniles was unconstitutional, the state of Washington enacted a statute requiring the re-sentencing of Washington criminal defendants who had been sentenced to life without the possibility of parole for crimes committed while they were juveniles. RCW 10.95.035.

A defendant who was re-sentenced after the change in the law recently challenged his new sentence. According to the appeals court’s opinion, the defendant killed two people during a robbery in 1997 at the age of 17. He was sentenced to the then-mandatory life sentence without the possibility of parole for each of two counts of aggravated first degree murder while armed with a deadly weapon, to be served consecutively, plus a deadly weapon enhancement of 24 months on each count.

Following a hearing in 2017, the defendant was re-sentenced to two concurrent terms of 42 years to life. The defendant appealed and the appeals court affirmed. The Washington Supreme Court remanded the case for reconsideration based on a recent decision.

Federal Court Enjoins University from Proceeding with Title IX Disciplinary Hearing

November 24, 2020 | by Blair & Kim, PLLC

Although the preamble to the new Title IX regulations states the regulations do not apply retroactively, a Temporary Restraining Order issued by a New York federal court recently raised questions about retroactive application. The court has recently rendered a much more detailed opinion on the issue of a preliminary injunction in the Title IX discrimination case.

According to the court’s opinion, the plaintiff had a consensual sexual relationship with a female student, identified as “Jane Roe.” She invited him to her dorm room to discuss an incident where she allegedly caught him recording her getting dressed. The plaintiff alleged he had to walk to her room because he was too drunk to drive. He continued to drink after he arrived. The two had consensual sex, and then each filed Title IX complaints against the other for the events that followed.

Roe alleged that they argued and the plaintiff put his hand around her neck and squeezed. She also alleged he engaged in sexual activity without her consent.

Modifying Washington State Spousal Maintenance

November 23, 2020 | by Blair & Kim, PLLC

Before awarding Washington spousal maintenance, a court must consider certain factors. Those factors include the financial resources of the spouse requesting maintenance; the time it would take that spouse to get the necessary education or training to find appropriate employment; that spouse’s age, physical and emotion conditions, and financial obligations; the established standard of living; the length of the marriage; and the ability of the other spouse to meet their own financial needs and obligations and those of the requesting spouse. RCW 26.09.090(1).

A wife recently challenged a modification of her spousal maintenance after the husband lost his job. The parties were married for nearly 31 years before they divorced in 2017. The husband had reached the level of senior vice president in his career and was earning a gross income of about $20,600 per month plus a discretionary annual bonus of up to half his salary. Their children were adults at the time of the divorce.

The parties agreed to an equal asset division. The wife received the home and some cash and retirement assets, and the husband kept most of the liquid assets. They agreed the husband would pay $6,000 per month in spousal maintenance for five years until he turned 60. He would then pay the wife $3,000 per month until he turned 67. The agreement was intended to give the parties equal financial circumstances until they both could access retirement funds without penalties.

Washington Court Finds Property Cannot Remain Separate after Being Conveyed to the Community

November 12, 2020 | by Blair & Kim, PLLC

The court must characterize property as community or separate when distributing property in a Washington divorce. Character is generally determined when the property is acquired. When a spouse acquires property before the marriage, that property is presumed to be separate property unless there is sufficient evidence of an intent to change it to community property. A wife recently challenged a court’s determination that property remained separate after a conveyance to the marital community.

Before the parties married, the husband moved into the home the wife owned with her previous partner.

The husband owned property on Aldergrove with two rental units. He also owned a property on Yew Street. After the marriage, the parties rented the Aldergrove units and the Yew Street property and deposited the proceeds into a marital community joint bank account.