Seattle Attorneys Blog
A person who has experienced domestic violence may seek a protection order with the assistance of a Seattle civil protection order lawyer. Courts may order a protection order based upon violence against a child. Washington law does, however, recognize a parent’s right to physically discipline his or her child, as long as that discipline is reasonable and moderate. An incident of reasonable and moderate physical discipline should not lead to the issuance of a protection order.
A father recently challenged a protection order, claiming that the incident in question was discipline rather than assault. The mother had petitioned for an order of protection against her former husband, alleging that he had assaulted the mother and their son. A judge issued a temporary order of protection, prohibiting the father from having contact with his former wife and their three children.
The father filed opposing declarations, disputing most of the accusations. He did admit, however, that he had recently slapped his 11-year-old son’s cheek for talking back. A police report indicated that the responding officers did not see any marks on the child’s face.
Following a hearing, the trial court found that there was a basis for the protection order, based on the ex-husband smacking the child on the cheek. After stating that the father “smacked [the child] on the cheek,” the court stated, “That’s domestic violence right there….”
The father appealed. He argued that the court erred in entering the protection order because he used lawful force in disciplining his son.
The protection order was issued under the Domestic Violence Protection Act. A person alleging that he or she has been a victim of domestic violence may petition for a protection order on behalf of himself or herself or minor children in the family or household. RCW 26.50.020.
The appeals court noted that assault can take three forms: actual battery, attempt to cause injury, or attempt to cause fear or apprehension of injury. In this case, the allegation was actual battery, which generally occurs when there is “intentional touching or striking of another person that is harmful or offensive.” State v. Tyler.
Washington law does, however, allow physical discipline of children by parents, teachers, and guardians, if it is reasonable and moderate. RCW 9A.16.100. Certain actions are presumed unreasonable, including kicking, burning, cutting, and closed-fist hitting. Additionally, any act that is likely to cause and actually causes bodily harm to the child that is more than just “transient pain or minor temporary marks” is presumed unreasonable.
In a previous abuse case, the appeals court had held that an open hand slap to a child’s face was permissible if it did not “cause bodily harm greater than transient pain or minor or temporary marks.” In that case, the child was a 16-year-old girl. The appeals court found that the circumstances of the current case were similar. Although the previous case dealt with abuse and this case with domestic violence, both cases involved a parent slapping a child’s face with witnesses seeing no marks afterward. The appeals court acknowledged that the 11-year-old boy was likely smaller than the 16-year-old in the other case, but it found that the question of whether the action was reasonable and protected by the statute was a fact question.
The appeals court found that the trial court abused its discretion when it concluded that physical discipline was domestic violence without first analyzing the appropriate factors. The appeals court noted that the order had expired, but it acknowledged that such orders could have “collateral consequences.” The appeals court remanded so that the trial court could vacate the order.
It is important to note that the appeals court did not go so far as to say that the incident was reasonable and moderate physical discipline. The appeals court noted that this was a question of fact and that the trial court abused its discretion by not considering the factors that would allow it to make the determination. This decision therefore does not mean that slapping an 11-year-old child in the face for talking back will be considered reasonable and moderate. The facts and circumstances of the particular case would need to be considered.
If you are seeking or challenging a civil protection order based on domestic violence, the experienced Washington civil protection order attorneys at Blair & Kim, PLLC, can help. Call (206) 622-6562 to schedule a consultation.