When a parent seeks a Washington domestic violence protection order (“DVPO”), they may want to include their minor children as protected parties. If the protection order is against the other parent, it can affect that parent’s visitation and custody. In a recent case, a mother appealed a DVPO that did not include her three-year-old child as a protected party.
The appeals court’s opinion stated the mother had petitioned for a protection order to protect herself and her child against her boyfriend, who was also the child’s father. She requested an order restraining him from any contact with her or the child, from coming within 1,000 feet of her home or workplace or the child’s daycare. She asked for sole custody of the child. She asked the court to order the father to participate in treatment or counseling. She requested the order be effective for over a year.
She alleged multiple incidents of domestic violence by the father, including incidents in which she said he shoved her and threatened her. She stated the father was under investigation for an incident in which he threw her against the wall and to the floor, choked her, and banged her head against the floor. She alleged this incident occurred in front of the child.
She also described another incident in which she saw the father slam the child onto her bed. She alleged the child was crying and unable to catch her breath. She said the father threatened to leave the child “and never come back” if she did not allow him, instead of the mother, to read to her.
The court granted her a temporary order of protection for the mother, but did not include the child.
At the hearing, the parties informed the court there was not an existing parenting plan. The father stated he did not desire to communicate with the mother except to arrange visitation with the child. The mother, however, stated she would “feel uncomfortable” with an order that allowed him to contact her only to arrange visitation. The court stated that, without a parenting plan, the father had as much right to custody as the mother. The mother responded that she “fear[ed] for [the child’s] safety.”
The mother testified about the incidents she alleged in the petition. She also testified she left the county with the child to get away from the father. She testified he had a fourth degree assault charge against him.
The father confirmed he had been charged and declined to testify in the hearing.
The court granted a one-year protection order as to the mother, but did not include the child. It ordered the father to have no contact with the mother except to arrange visitation or as provided in a parenting plan. The court also granted the mother temporary care, custody and control of the child. The court told the parties they “need[ed] to get a parenting plan in place immediately.” The court did not explain in its oral ruling or the written order why it did not include the child as a protected party.
The mother appealed. The appeals court identified “two significant legal errors” committed by the trial court.
Former RCW 26.50.060(7) required a court to include in the written order the reasons it declined to issue an order of protection. The current statute includes the same requirement, but also expressly requires the court to state in writing its reasons for denying a petitioner’s request to include a minor family or household member in the protection order. RCW 7.105.225(5).
The court indicated in its comments that it excluded the child from the protection order out of deference to a future parenting plan. Both the former and current statutes prohibit a court from denying or delaying a DVPO because relief is available in a different action. Courts cannot allow the availability of other proceedings to influence the remedy they grant in a DVPO proceeding.
The appeals court concluded the trial court abused its discretion and remanded the case. The appeals court instructed the trial court to consider the merits and evaluate the allegations. It further instructed the court to provide written reasons if it again decides to deny protection for the child. The appeals court also reminded the trial court that exposure to domestic violence “is a form of harm that qualifies for protection under a DVPO.”
In this case, the court appears to have improperly left issues related to the child to be addressed in a potential future parenting plan. A child’s inclusion as a protected party in a protection order against a parent can affect custody and visitation. If you are seeking or opposing a civil protection order involving your child or your child’s other parent, you may need a family law attorney in addition to a Washington civil protection order attorney. Blair & Kim, PLLC, is experienced in civil protection orders, family law, and criminal defense and has the knowledge and skill to handle matters where these areas of law intersect. Call our offices at (206) 622-6562 to schedule a consultation to discuss your case.