When one parent seeks a protection order against the other parent, they often ask that the order also be applied to the children. However, when a court issues a domestic violence protection order, any provisions addressing the residential arrangement of minor children must be made in accordance with Washington child custody laws. The court must make findings as to the relevant factors justifying the modification. In a recent case, a Washington appeals court considered whether a protection order that included the child was an improper modification of the parenting plan.
The couple divorced in 2015 and the parenting plan gave each parent 50% residential time with their child. In 2017, the ex-wife petitioned for a protection order, alleging her ex-husband had given her a threatening letter. In the letter, he stated he had two things to live for: “redemption by taking revenge on [his ex-wife]…” and protecting his son. The wife also provided a post on a website purportedly made by the ex-husband in 2015, stating he “contemplated murder and considered violence” but that his “son was too young to be separated from his mother permanently.
Following a hearing, the commissioner issued a protection order restraining the ex-husband from contact with the ex-wife or the child except for his supervised visits.
The court denied the ex-husband’s request for revision and he appealed. He argued the protection order was an improper modification of the child’s residential schedule. A court may only modify a parenting plan if there has been a substantial change in circumstances and modification is necessary to serve the child’s best interest. The court can only change the parenting plan’s residential schedule under certain circumstances set out in RCW 26.09.260. The appeals court found the only potentially applicable justification was if the child’s present environment was detrimental to the child’s health and the potential harm of a change in environment was outweighed by the advantage of the change.
The appeals court noted the alleged threats were against the ex-wife personally, and did not seem to threaten the child. The protection order, however, also restrained him from contacting the child outside of his supervised visits. The trial court did not make findings regarding the need to protect the child. The protection order stated that the change would be superseded by subsequent modification to the parenting plan, but the protection order did not require a modification. The ex-wife would not have any incentive to seek a modification, and the ex-husband would likely not be able to establish a substantial change of circumstances of the ex-wife or the child. The appeals court also noted there was a danger that the changes in residential time “would become a de facto permanent modification of the parenting plan.” The appeals court determined they could not find there was a substantial change in circumstances justifying the modification based on the record. The appeals court remanded to the trial court for findings necessary to support the changes to the residential schedule and application of the protection order to the child, or otherwise to amend the terms of the protection order. The appeals court also noted that the trial court did not have make additional findings if a modification of the residential schedule was entered.
If you are involved in a situation involving a civil protection order, our Washington civil protection order lawyers can help. We are experienced in family law and can assist you with related custody issues. Call Blair & Kim, PLLC at (206) 622-6562 to speak with someone about your case.
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