Seattle Attorneys Blog

Restrictions on Child Visitation in Washington

August 30, 2017 | by Blair & Kim, PLLC

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.

Washington Protection Orders Entered Pursuant to a Dissolution Decree or Parenting Plan

August 24, 2017 | by Blair & Kim, PLLC

In Washington, a domestic violence protection order restraining a parent from contacting his or her children is generally limited to one year, RCW 26.50.060, but Washington civil protection order attorneys know that there are exceptions to this limitation. One such exception is when the order is issued under Chapter 26.09, RCW, Dissolution Proceedings – Legal Separation. This issue was before a Washington court of appeals in a recent case.

The wife was an American citizen who married an Egyptian citizen in Egypt. The couple had a son together. The wife stated her husband frequently abused her physically, verbally, and emotionally. She stated he controlled what she wore and sometimes confined her and the child to the apartment. She stated he hit her in front of the child. The husband disputed the allegations but admitted to slapping her at least one time.

The husband became angry with his wife, took the child’s passport, and told his wife she had to leave Egypt within three days without her son. The wife went to the U.S. Embassy and obtained an emergency passport for the son and assistance in leaving Egypt safely with her son.

Washington Court Finds Falling from a Parked Vehicle Is Not a Motor Vehicle Accident

August 16, 2017 | by Blair & Kim, PLLC

Washington automobile insurers must offer personal injury protection coverage (PIP). PIP benefits may cover medical expenses, lost wages, funeral expenses, and loss of services. Washington car accident attorneys know that it is not always clear whether an incident resulting in injuries gives rise to a PIP claim. In a recent case, a Washington appeals court determined whether an insured person could receive PIP benefits for injuries he suffered when he fell out of a parked vehicle.

The plaintiff felt nauseated while he was driving with his son. He turned onto a side street and pulled over. He put the vehicle in park but left it running. He unbuckled his seatbelt and leaned out the window to be sick. As he was leaning out the window, he passed out and fell forward. He received significant injuries when he struck his head on the pavement. His head and upper body had fallen outside the vehicle, but his legs and feet were near the pedals. He bled profusely. His son then drove him to the hospital.

The plaintiff’s medical bills exceeded $10,000. He filed a PIP claim with his automobile insurer. The policy states that it will provide the specified benefits “for bodily injury to each Insured person caused by a motor vehicle accident.” The insurer denied coverage, determining that there was no motor vehicle accident to trigger coverage. The insurer argued that a motor vehicle accident can only occur when the vehicle is being operated as a motor vehicle, and that is not the case when the vehicle is parked. The plaintiff’s injuries occurred when he fell from his parked vehicle, so the insurer determined that they were not a result of a motor vehicle accident.

Washington Supreme Court Allows Random Urinalysis of DUI Defendant on Probation

August 11, 2017 | by Blair & Kim, PLLC

Article I, section 7, of the Washington Constitution provides that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Washington criminal defense attorneys know that the privacy protections of section 7 provide greater coverage than the Fourth Amendment of the U.S. Constitution in some areas.

In a recent case, the Washington Supreme Court considered whether section 7 prohibits a requirement of random urinalysis of individuals on probation for a misdemeanor DUI offense. The defendant in this case pleaded guilty to a gross misdemeanor DUI offense. The trial court imposed a partially suspended sentence, with a condition that she not consume alcohol, marijuana, or nonprescribed drugs. The court also ordered that she submit to random urinalysis drug testing to monitor her compliance with that condition.

The defendant appealed on the grounds that the random urinalysis condition violated her privacy rights under the Fourth Amendment to the U.S. Constitution as well as article I, section 7 of the Washington Constitution. She argued that a warrantless search of an individual on probation for a misdemeanor “must be supported by a well-founded suspicion” that she violated one of the conditions. The court found in favor of the defendant, vacated the sentence, and remanded.

Washington Supreme Court Allows Mother to Obtain Protection Order on Behalf of Son

July 28, 2017 | by Blair & Kim, PLLC

Washington civil protection order attorneys understand that domestic violence can be a complex issue that reaches beyond the couple. Children may become involved by witnessing the violence or by being threatened. Washington law allows a person to petition for a protection order on behalf of himself or herself, or on behalf of minor family or household members.

A Washington Court of Appeals, however, recently held that a mother could not obtain a protection order on behalf of her child when the child was not “present” for the violence and did not have fear of imminent harm, bodily injury, or assault. The Washington Supreme Court disagreed.

In this case, the mother petitioned for a domestic violence protection order against her son’s father on behalf of herself and her children following a history of domestic violence. According to the Washington Supreme Court opinion, the man had repeatedly physically and emotionally assaulted his son’s mother. He pushed her to the ground while she was pregnant, had tried to smother her with a pillow, pulled a knife on her, threatened to kidnap their son, and threatened to do something horrible to her daughters. He also threatened to kill her, her children, and himself.

Washington Appeals Court Finds Separate Property Converts to Community Property During Separation Under Prenuptial Agreement

July 23, 2017 | by Blair & Kim, PLLC

No one wants to think about divorce before they are even married, but a prenuptial agreement can protect both parties if the marriage doesn’t work out. While most people think in terms of either being married or divorced, Washington divorce attorneys understand there may be significant periods of separation. If a prenuptial agreement does not specifically address what occurs during the separation, the parties will likely be considered married until the dissolution. This could result in separate property converting to community property during the separation, as occurred in a recent case.

The husband had become wealthy from the stock options he received as a Google employee. The couple signed a prenuptial agreement and married in September 2005. They separated in 2014 when the husband filed for divorce.

They reached an agreement on a parenting plan for their child, but they had to go to trial to resolve their financial issues. The husband appealed the trial court’s distribution of property, challenging the interpretation of the prenuptial agreement.

Paraphernalia Possession Not Sufficient to Establish Probable Cause for Intent to Use in Washington

July 14, 2017 | by Blair & Kim, PLLC

Probable cause is required for a warrantless arrest. To have probable cause, the arresting officer must be aware of facts or circumstances that are based on reasonably trustworthy information that is sufficient to cause a reasonable officer to believe a crime was committed. If the arresting officer did not have probable cause for the warrantless arrest, evidence discovered in a search incident to that arrest should be suppressed.

A Washington appeals court recently considered whether possession of a pipe known by the officer to be of a type commonly used to smoke methamphetamine was sufficient to create probable cause. Two deputies responded to a call from a drugstore that a man was inside the store stuffing items in his jacket. One of the deputies detained the defendant on suspicion of shoplifting, although he did not have any unpaid merchandise with him. When the deputy frisked the defendant for weapons, he felt something he identified as being the shape of a methamphetamine pipe. He removed the pipe from the defendant’s pocket. The defendant was arrested, and, during the search incident to the arrest, the deputy found a bag of methamphetamine on the defendant.

The defendant was charged with possession of methamphetamine. He moved to suppress. He was ultimately convicted as charged in a bench trial. The defendant appealed, arguing the deputies did not have probable cause to arrest him.

No Fault Apportioned to Washington Parent for Negligent Supervision in Child’s Personal Injury Case

July 12, 2017 | by Blair & Kim, PLLC

The fact-finder in a Washington personal injury case must allocate fault among each of the entities that were at fault for the plaintiff’s injuries, including entities with immunity, except those immune under the workers’ compensation act. Washington law recognizes the doctrine of parental immunity for claims of negligent supervision. The Washington Supreme Court recently reviewed a case addressing whether a child’s compensation from the driver who struck him could be reduced due to his father’s negligent supervision of him.

In this case, the father’s girlfriend at the time struck his two-year-old child with her vehicle in the driveway of the father’s home. A lawsuit was filed on behalf of the injured child against the father’s girlfriend. She asserted an affirmative defense that the child’s father was fully or partially responsible for the child’s injuries, based on negligent supervision. The plaintiff moved for summary judgment, arguing the law did not allow apportionment of fault to the father on these grounds. The court denied summary judgment, and the plaintiff amended the complaint to add the father as a defendant. The amended complaint stated that the other defendant contended the father was concurrently negligent or engaged in willful misconduct that proximately caused the injuries. The father did not make an appearance as a party, and the court entered a default order against him. The jury was instructed to consider whether the plaintiff had met the burden of proving the girlfriend was negligent and had proximately caused the injuries, and whether the defendant had met her burden of proving her affirmative defense that the father was also negligent.

The jury found both the girlfriend and the father were negligent and proximately caused the injuries. The jury attributed 50% of the damages to each of them. The court rejected the plaintiff’s request for a joint and several judgment entered against both the father and the girlfriend for the entire amount of damages and entered only a judgment against the girlfriend for 50% of the damages. The Court of Appeals affirmed the trial court, and the Supreme Court of Washington granted review.

Washington Court Finds Traffic Stop Constitutional When Defendant Crossed Fog Line

July 1, 2017 | by Blair & Kim, PLLC

Individuals are protected from unreasonable seizures by both the U.S. and Washington Constitutions. Warrantless seizures are unreasonable unless an exception applies, and it is the state that must establish that an exception exists. A traffic stop is considered a seizure. For a warrantless traffic stop to be constitutional, there must be a reasonable articulable suspicion of criminal activity or a traffic infraction. The scope of the stop must be reasonably limited.

A Washington appeals court recently considered whether the state had a reasonable articulable suspicion when it was undisputed that the defendant had crossed the fog line for about 200 feet. A state patrol trooper was driving behind the defendant and observed her drive two wheels of her vehicle over the fog line for about 200 feet. The trooper pulled the defendant over. She submitted to sobriety tests, and the trooper arrested her for driving under the influence after observing clues of intoxication.

The defendant moved to suppress the evidence from the stop, and she moved for dismissal, arguing that the trooper did not have a reasonable suspicion to justify the stop. The state argued that the defendant committed an infraction when she drove on the shoulder.

Washington Court Denies Negligent Infliction of Emotional Distress Claim

June 21, 2017 | by Blair & Kim, PLLC

Negligent infliction of emotional distress is a cause of action available when a family member is at the scene of their loved one’s accident at the time of the accident or shortly thereafter and witnesses their injuries at the scene before there is a material change in the circumstances. In March, Division Three of the Washington Court of Appeals found that a woman could recover damages on a negligent infliction of emotional distress claim, despite knowing about the accident prior to arriving on the scene. Recently, Division One reviewed a case in which a mother knew her son had been killed in the accident before she arrived on the scene.

The plaintiff’s 17-year-old son died from mechanical asphyxiation as a passenger in an automobile accident. The plaintiff lived near the scene of the accident. One of her son’s friends stopped by her home and told her to call her son because there had been an accident. The plaintiff testified that she received no answer when she tried to call. The driver’s father subsequently came to the plaintiff’s house and informed her there had been an accident, and her son had not survived. The plaintiff and her husband then drove to the accident scene.

They arrived at the scene about 20 minutes after the accident. The area was surrounded by emergency vehicles, and the scene was blocked off. The plaintiff’s son was lying on the side of the road, covered by a sheet.