Washington Father Not Required to Pay Mother’s Attorney Fees after Seeking Protection Order and Custody Modification

Sadly, suspicions or allegations of abuse sometimes arise in Washington custody cases.  Although there may be circumstances where a party makes an allegation in an attempt to affect the custody case, some parents have sincere concerns about their children.  A father recently challenged an order that he pay the mother’s attorney fees related to his motion to modify the parenting plan after he sought a protective order against the mother.

The father claimed he noticed injuries on the child after he picked her up from the mother’s home in June 2017.  He said he asked her about them, and she said words in her native language that translated to “Ouwie,” “Hit,” and “Mama.”  He took the child to the doctor and the doctor reported finding bruising with small abrasions on her feet and linear areas of bruising on her upper inner forearm.  The doctor contacted CPS.

The father claimed he noticed more bruising after picking the child up a few days later.  He took her back to the doctor and a nurse practitioner examined her and noted she had bruising on her right periorbital area and healing bruising and abrasions on the top of her feet.  The nurse practitioner called CPS, and they recommended calling the police and seeking a protective order.  The nurse practitioner called the father and recommended he seek a protective order and not return the child to the mother.

The father requested an immediate restraining order a few days later.  The commissioner said he did not have jurisdiction to grant the order because there was no pending action in the divorce or custody case and recessed the court so the father could file a modification petition.  The mother testified the red marks on the child’s feet were because she had played with lipstick the previous night.  She also said that the child got the bruise on her face when the end of a container she was kneeling on came up and hit her.  The commissioner found her testimony credible and found the injuries did not seem likely to be abuse, but said “I can’t tell.”  He denied the restraining order.

In March 2018, the father moved for adequate cause decision on his modification petition.  A different commissioner found there was not adequate cause for the matter to move forward and dismissed the petition.  The commissioner also awarded the mother attorney’s fees, finding the father had not brought the petition in good faith.

The commissioner denied the father’s motion for reconsideration and awarded the mother more attorney fees.

The father moved for revision of the order to remove the attorney’s fees in the original denial of his petition.  The court entered an Order of Revision and remanded because there was no fee declaration in the record to support the award amount.  Without a fee declaration, the court could not find the reconsideration motion was in bad faith and therefore reversed the award in the reconsideration order.  The father appealed.

The commissioner entered Findings in Support of Award of Attorney’s Fees.  The findings stated the commissioner had considered a document that purportedly listed the fees the mother incurred.  The findings stated CPS had determined the abuse reports “were ‘unfounded.’”  The commissioner also found the father “was aggressively pursuing litigation” and his attempts to modify the parenting plan were in bad faith.

The father argued the commissioner erred by awarding the fees because he had not acted in bad faith.  The mother argued the determination was supported by the facts.

The appeals court noted the commissioner reached the finding of bad faith because the docket showed the father “was aggressively pursuing litigation over the parenting plan.”  The appeals court pointed out she had incorrectly attributed motions for clarification and revisions to the father when they had actually been filed by the mother.

The appeals court noted that the father only moved for the restraining order after the nurse practitioner recommended it.  He only petitioned for modification after the commissioner told him he needed to do so for the commissioner to have jurisdiction over the motion for a protective order.  The appeals court noted it could not say the father’s appeal of the parenting plan was without merit and that it addressed issues unrelated to his subsequent motion for a restraining order or modification petition.

The appeals court found the commissioner had relied on incorrect facts in finding the husband had engaged in bad faith.  Furthermore, the appeals court found the other facts were not sufficient for a finding of bad faith.  The appeals court reversed the award of attorney fees.  Although there was not ultimately a finding of abuse, there also was not enough evidence to support a finding the father acted in bad faith.

If you are dealing with a custody issue, an experienced Washington child custody attorney can help.  Call Blair & Kim, PLLC, at (206) 622-6562 to discuss your case.