Visitation Provisions in Washington DVPO Are Not Parenting Plan Modification

Washington domestic violence protection orders must be supported by a preponderance of the evidence that domestic violence occurred. Domestic violence protection order proceedings are not subject to the same rules of evidence as other types of cases. A court may rely on evidence, such as hearsay, that would not be allowed in other types of proceedings. In a recent unpublished case, a father challenged a domestic violence order against him, arguing in part there was not credible evidence supporting it.

When the parents divorced, the trial court entered a permanent restraining order prohibiting the father from contacting the mother except for reasons related to the children.  The trial court in the divorce proceeding found the father engaged in domestic violence and abusive use of conflict. The court also ordered the father to participate in parenting classes and domestic violence treatment.

Several years later, the children told their mother that they were afraid of their father and did not want to go back to his home.

The mother then petitioned for a domestic violence protection order for the children.  In her declaration, the mother described incidents the children had reported to her, including one involving a broken cabinet and another involving thrown shoes.  She also described an incident in which one child told the other that the father said she was not allowed to eat until she finished certain chores and wrote an essay about respect.  The father did not accept her first effort and required her to rewrite the essay. The mother’s declaration also described incidents of domestic violence against her that occurred during the marriage.

The trial court granted a temporary protection order and allowed the father to have supervised visitation until the hearing.  The mother testified at the hearing she did not think the children would feel safe with their father without a protection order.  The father testified the cabinet door had been loose, but admitted that he “might have said something inappropriate about the fact that the cabinet door was now broken.” He said he then remembered his domestic violence training and realized he needed to leave.  He said he had left a note with a list of chores for his daughter, but denied requiring her to complete them before eating.  He testified he had not seen the children show fear toward him and did not believe they were afraid of him. He testified he had raised his voice at his daughter on another occasion, but did not remember throwing her shoes.  He testified that he sometimes tossed their shoes down the hall so the kids could put them away in their rooms.

The trial court found sufficient evidence supporting a finding of domestic violence and that the children’s fear was reasonable.  The trial court entered an order of protection for one year. The court allowed the father supervised visitation with the children and required domestic violence treatment.  The court also ordered the father to surrender firearms and other weapons.

The father appealed.  He argued there was not sufficient evidence to support a finding he engaged in domestic violence.  He also argued that the protection order constituted a modification of the parenting plan.

The father argued there was no credible evidence supporting the protection order. He argued the evidence relied upon by the court was hearsay and speculation. The appeals court noted that the rules of evidence do not apply in domestic violence protection order proceedings and that even the father agreed that the evidence was admissible.  The appeals court further noted the father’s argument was based on a belief his evidence was more credible than that of the mother.  The appeals court defers to the trial court’s determination as to witness credibility and the weight of the evidence.  The trial court had specifically stated it found the mother more credible. The appeals court found no abuse of discretion.

The father also argued the trial court had made a major modification of the parenting plan without following the statutory requirements. Modification of a parenting plan generally requires a finding of a substantial change in circumstances and that the modification is in the best interest of the children. Pursuant to RCW 26.50.060, a trial court may issue domestic violence protection orders that restrain a parent from contacting a child.  The statute also allows the trial court to “make residential provisions” without a parenting plan.  The appeals court found that a domestic violence protection order does not constitute a major modification of a parenting plan.

The trial court’s order acknowledged that there was a pending petition for modification that would address the issue of visitation.  The trial court had therefore temporarily required supervised visitation as a result of its finding of domestic violence.  The appeals court found that doing so was within the trial court’s discretion.

The appeals court affirmed the trial court’s order.

This case illustrates how civil protection orders and family law can intersect. At Blair & Kim, PLLC, we are experienced in both areas of law and can help you navigate proceedings related to both.  Whether you are seeking or opposing a Washington domestic violence protection order, call our office at (206) 622-6562 to schedule a consultation.  Our skilled Washington civil protection order attorneys can help.


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