Seattle Attorneys Blog

Application of Relocation Presumption to Graduated Residential Schedule in Washington Parenting Plan

March 22, 2025 | by Blair & Kim, PLLC

Often, after a divorce or break-up, one parent may wish to relocate. Relocation of a child under a Washington custody order is governed by the child relocation act (“CRA”). A parent with shared custody must notify the other parent when they wish to relocate. If the other parent objects, the court must hold a hearing. The CRA presumes that relocation will be permitted, but that presumption may be rebutted if the detrimental effect of relocation outweighs its benefit to the child and the relocating parent, based upon statutory factors. Those factors include: the child’s relationships with their parents, siblings, and other significant individuals; prior agreements between the parents; whether there are restrictions on either parent’s residential time; the child’s age, development, and needs and how relocation would affect the child’s development; the resources, quality of life, and opportunities available to the child and parent at both locations; and financial impact. RCW 56.09.520. The presumption does not apply, however, if the parents share substantially equal residential time with the child. RCW 26.09.525. When the presumption does not apply, the court must determine the child’s best interest by considering the statutory factors set forth in RCW 56.09.520.

In a recent case, a mother appealed a court order denying relocation, arguing the trial court improperly determined each parent’s residential time based on the totality of the parenting plan instead of basing it on the phase of the graduated residential schedule that was in effect at the time she filed her motion. According to the appeals court, the parties had one child during their marriage and divorced when the child was two.

The permanent parenting plan made the mother the primary residential parent and gave the father a graduated residential schedule. He would have residential time with the child three nights each two weeks, increasing to four after three months, and then increasing to six when the child turned three. The parents would have equal residential time when the child started kindergarten.

Washington Appeals Court Determines Juvenile’s Case Was Improperly Dismissed with Prejudice

March 13, 2025 | by Blair & Kim, PLLC

Pursuant to CrR 8.3(a), a Washington trial court may dismiss an indictment, information, or complaint upon motion of the prosecutor. Pursuant to CrR 8.3(b), the court may dismiss a prosecution because of governmental misconduct or arbitrary action if the defendant’s rights have been prejudiced, materially affecting his right to a fair trial. Pursuant to CrR 8.3(c), the court must dismiss without prejudice if the court grants a defendant’s motion for pretrial dismissal because of insufficient evidence. A Washington appeals court recently considered whether a trial court could dismiss a criminal case with prejudice when the state had moved for dismissal without prejudice pursuant to CrR 8.3(a).

According to the opinion, a juvenile defendant, identified by the appeals court as “WH” was charged with third degree malicious mischief, first degree animal cruelty, and second degree assault by strangulation, and harassment – threats to kill, arising from an incident involving his girlfriend, identified as “KM.” He made a preliminary appearance in juvenile court. The state added charges for attempted second degree murder and, alternatively, second degree attempted felony murder and transferred the case to adult court.

The state subsequently asked to return the case to juvenile court with the attempted murder charges dismissed. The juvenile was arraigned again under the original case number and pleaded not guilty in juvenile court.

Department of Education Issues Dear Colleague Letter on Title IX Enforcement

February 28, 2025 | by Blair & Kim, PLLC

On February 4, 2025, the Department of Education issued a “Dear Colleague” letter stating that it will enforce Title IX pursuant to the 2020 Title IX Rule instead of the 2024 Title IX Rule. “Dear Colleague” letters are used by the Department of Education and other agencies to provide guidance and communicate their interpretation of the law and how they intend to enforce it. The letter clarifies that the procedural protections and definition of “sexual harassment” in the 2020 Title IX Rule will be enforced.

The letter cites the decision of the Eastern District of Kentucky in Tennessee v. Cardona, which the 2024 Title IX Rule nationwide in its entirety. The letter also cites Executive Order 14168, which would prohibit the Department of Education from enforcing the gender-identity protections included in the 2024 Title IX Rule. The letter clarifies that, in light of the court’s decision in Cardona and the Executive Order, Title IX will be enforced pursuant to the 2020 Title IX Rule and the pre-existing regulations set forth in 34 C.F.R. 106 et. seq. The 2024 Title IX Rule will not be enforced.

The letter further advises schools re-evaluate any investigations that were initially opened under the 2024 Title IX Rule to ensure they are consistent with the 2020 Title IX Rule.

Washington Sentencing Court Must Order Restitution in Amount of CVCA Benefits Paid

February 25, 2025 | by Blair & Kim, PLLC

The Department of Labor and Industries (“L&I”) administers the Crime Victims Compensation Program. Generally, the court must order restitution in Washington criminal cases where the victim is entitled to benefits pursuant to the crime victims’ compensation act (“CVCA”) as set forth in chapter 7.68 RCW. If the court has not ordered restitution in a case where a victim is entitled to such benefits, L&I may petition for restitution within a year from judgment being entered. The court must then hold a restitution hearing and enter a restitution order. RCW 9.94A.75(7). In a recent case, the Supreme Court of the State of Washington considered whether the court had discretion to order restitution to L&I in an amount less than the CVCA benefits paid.

According to the opinion, the defendant pleaded guilty to crimes related to a home invasion that resulted in the death of one of the residents of the home. The state sought $10,480 in restitution to L&I for benefits paid related to the victim’s medical and funeral expenses.

The defendant asked for a reduction in the amount of restitution based on mitigating factors. The trial court denied his request, believing its discretion was limited, and ordered restitution in the amount sought by the state. The appeals court affirmed the restitution order.

Washington Appeals Court Affirms Denial of DVPO Based on Insufficient Evidence

February 21, 2025 | by Blair & Kim, PLLC

Washington civil protection order proceedings are sometimes related to family law issues. In a recent case, a mother appealed a court’s denial of a second protection order after her divorce.

According to the appeals court’s unpublished opinion, the father had repeatedly assaulted the mother during her pregnancy with their child. After the birth, he threatened to kill the mother, the child, and himself. The parties divorced in 2012 and the parenting plan provided that the father’s visitation with the child was to be professionally supervised. The father wanted additional visitation with the child in 2015. According to the opinion, he went into the mother’s home and demanded visitation and refused to leave. The mother then obtained a restraining order for five years against the father. The child started seeing a therapist.

In 2018, the child and the father started court-ordered reunification counseling.

Washington Community Custody Condition Limiting Geographic Movement Was Unconstitutionally Vague

February 9, 2025 | by Blair & Kim, PLLC

Sentences for certain Washington criminal offenses may include community custody. The specific conditions of a defendant’s community custody depend on the offense for which the defendant was convicted. In some circumstances, certain community custody conditions are mandatory, some may be waived by the court, and others are discretionary. In a recent case, a defendant successfully challenged a community custody condition as unconstitutionally vague.

According to the appeals court’s unpublished opinion, the facts were undisputed. The defendant was convicted of assault in the third degree with a deadly weapon following an incident in which he attacked someone with a broom. The defendant was sentenced within the standard range and the court also imposed certain community custody conditions. One condition required the defendant to stay in the geographic boundaries either identified by the corrections officer in writing or stated in the Stay Out of Drug Area order.

The defendant appealed this condition, arguing it was unconstitutionally vague.

Washington Supreme Court Addresses Sentencing of Juvenile Offenders With Plea Agreements

January 30, 2025 | by Blair & Kim, PLLC

Pursuant to State v. Houston-Sconiers, a trial court must consider the mitigating qualities of a juvenile offender’s youth in sentencing a juvenile in a Washington criminal case. The court has discretion to impose a sentence below the standard range in juvenile cases. In a recent case, a juvenile defendant challenged his sentence, which was based on a joint recommendation as a result of a plea deal.

According to the Washington Supreme Court’s opinion, the defendant fatally stabbed someone multiple times and stole his wallet. The defendant ultimately admitted to stabbing the victim. The defendant was charged with first degree murder with a deadly weapon and would have been subject to a standard range sentence between 240 to 320 months, plus a deadly weapon enhancement.

Following lengthy negotiation, the defendant pleaded guilty to first degree robbery and second degree murder while armed with a deadly weapon. The standard range sentence was 41 to 54 months for the first degree robbery charge and 142 to 244 months for the second degree murder charge. The state and the defendant jointly recommended a sentence that would total 244 months of confinement.

Federal Court Vacates 2024 Title IX Final Rule

January 28, 2025 | by Blair & Kim, PLLC

A federal court in the Eastern District of Kentucky recently issued an order vacating the 2024 Title IX Final Rule.

The court concluded the Department of Education (“Department”) exceeded its statutory authority with the Final Rule. According to the court’s opinion, the Department cited the case of Bostock v. Clayton County, Ga. In support of the Final Rule. In Bostock, the Supreme Court concluded termination of an employee because of transgender status violated the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964. The Supreme Court noted that “transgender status [is] inextricably bound up with sex,” and therefore concluded discrimination based on transgender status meant the employer was intentionally treating the person differently because of their sex.

The Eastern District of Kentucky, however, determined the Department was applying the Bostock holding too broadly. The court noted the Bostock holding was expressly limited to Title VII. Furthermore, the Sixth Circuit previously acknowledged that the definition of discrimination under Title VII under Bostock did not apply to other anti-discrimination laws. The court also pointed out that Title VII and Title IX “use materially different language.” Title VII references discrimination “because of sex,” while Title IX prohibits discrimination “on the basis of sex.” Additionally, Title VII and Title IX have different goals and different defenses. Tennessee v. Cardona.

Washington Appeals Court Considers Application of Multiple Transaction Aggravator in Drug Case Sentencing

January 20, 2025 | by Blair & Kim, PLLC

A court may only impose a sentence above the standard range in a Washington criminal case if it finds substantial and compelling reasons that justify it. This finding must be based on specific aggravating circumstances that have been determined beyond a reasonable doubt by the jury. In drug trafficking cases, a “major violation” of the Uniform Controlled Substances Act (“VUCSA”) can support a sentence greater than the standard range. One factor that may identify a major violation of VUCSA is if the current offense involves multiple transactions. RCW 9.94A.535. A defendant recently challenged her exceptional sentence, based on the multiple transactions aggravator.

According to the appeals court’s opinion, the defendant sold methamphetamine and pills that appeared to be Oxycodone but were actually fentanyl three separate times over a three month period.

The state charged her with a separate charge for each type of drug she sold at each sale and three charges for each sale of counterfeit Oxycodone. The state included a sentence enhancement, arguing each offense was a major violation pursuant to RCW 9.94A.535(3)(e)(i), the multiple transgressions aggravator.

Division of Property Owned with a Third Party in a Washington Divorce

January 12, 2025 | by Blair & Kim, PLLC

Property division can be complicated when the parties to a Washington divorce co-own property with a third party. In a recent case, a wife appealed a property division that did not consider the mortgage on the wife’s brother’s share of the property in the valuation.

The husband petitioned for divorce in 2019. According to the opinion of the appeals court, the parties purchased a piece of property with the wife’s brother during the marriage. The parties paid cash for their 50% interest, while the wife’s brother took out a mortgage.

At trial, the husband testified he did not think there was any debt on the wife’s interest in the property. The wife’s brother testified he paid for his share of the property with a mortgage, but testified if he were to default, “it’s her responsibility.”