Seattle Attorneys Blog

Limitations in Washington Parenting Plan upon Finding of History of Domestic Violence

October 8, 2024 | by Blair & Kim, PLLC

When a court makes a finding there was a history of domestic violence in a Washington custody case, it must impose limitations on the decision-making authority and in most cases the residential time of the parent who committed the domestic violence. A mother recently challenged a parenting plan based on a lack of limitations on the father in light of the court’s finding of a history of domestic violence.

The parties got married in 2019 and had a son about a year later. The mother alleged the father was abusive toward her during the relationship. According to the appeals court’s unpublished opinion, the father told the mother to “. . .get out” following an argument in June 2021. The mother then moved with the child to live with her parents in New Mexico. The father filed for divorce.

The court entered temporary orders allowing the father to have two monthly visits with the child, 25% of which were to occur in Washington. He only actually had about a visit every other month due to the expense and work conflicts.

Alleged Victim’s Title IX Claim Arising from Disciplinary Proceeding Against Her Dismissed

September 30, 2024 | by Blair & Kim, PLLC

University sexual misconduct policies can reach a broad range of actions. A female student recently sued her former university after it charged her with violations of the Code of Conduct for what occurred after she was allegedly drugged and sexually assaulted.

According to the court’s order, which recited the facts in the light most favorable to the plaintiff, the campus police at an Indiana university received a report of a partially nude woman. An officer found the plaintiff, disoriented and wearing just a jacket. The officer contacted EMS and the plaintiff was taken to the hospital. EMS and the hospital staff thought she had been given a “date rape drug” and sexually assaulted.

The university charged the plaintiff with three violations of its Code of Conduct, alleging she had engaged in: lewd, indecent or obscene conduct or conduct that violated the Sexual Misconduct Policy; actions that endangered herself or others or the academic process; and unauthorized possession and use of alcohol.

Washington Court Awards Unpaid Wages in Committed Intimate Relationship Case

September 26, 2024 | by Blair & Kim, PLLC

Income acquired while people are in a Washington Committed Intimate Relationship (“CIR”) is treated as community property. At the end of a CIR, a court may only distribute property that would be characterized as community property if the parties were married. A party recently challenged a monetary award for unpaid wages to the woman with whom he had been in a CIR.

The man petitioned to end his CIR with the woman on February 14, 2022. According to the appeals court’s unpublished opinion, she had refused to return a vehicle he had bought before the relationship. She alleged she started working for him on July 20, 2018 and had not been paid for her work.

The man presented evidence indicating the woman was his employee beginning on July 20, 2018. He also presented an email from her alleging she was owed more than $65,000 in unpaid wages. He stated in his financial declaration that he worked last at the beginning of April, 2020. The woman testified they had worked together and she “was running the entire company . . . during the pandemic.” She testified she had not received any compensation.

Washington Appeals Court Reverses Rendering Criminal Assistance Conviction for Insufficient Evidence

September 17, 2024 | by Blair & Kim, PLLC

Video can be important evidence in a Washington criminal case. A defendant recently challenged his convictions in which video surveillance footage played a significant part.

According to the unpublished opinion of the appeals court, the police department received a report of a shot fired at a motel. The person who reported said there were three men standing in the motel parking lot. When the officer pulled into the parking lot, the defendant and two others walked toward the motel rooms. The co-defendant hid behind some cars and tried to run. The officers caught him.

The officers determined what room the defendant entered based on the motel’s surveillance video. They obtained a search warrant for the room, and found a firearm under the mattress in that room.

Washington Respondent Not Entitled to Notice of Motion to Revise Denial of Temporary DVPO

September 9, 2024 | by Blair & Kim, PLLC

A court may order a Washington ex parte temporary protection order without notice to the respondent pursuant to RCW 7.105.305. These temporary protection orders are intended to protect the petitioner’s safety until a full hearing. Courts have acknowledged the risk to a petitioner’s safety if notice is required for the initial temporary order and have held that any temporary infringement on the respondent’s rights by lack of notice is justified by protecting the petitioner from the immediate threat. The court may not, however, issue a full protection order without the respondent having notice and an opportunity to be heard. RCW 7.105.310. A mother recently appealed a court’s denial of her motion for revision of denial of her request for a temporary Domestic Violence Protection Order (“DVPO”) on the ground she had not given notice to the respondent.

The parties shared residential custody of their five-year-old child. The mother petitioned for a DVPO for herself and the child while the parenting plan appeal was pending. She sought an immediate temporary DVPO until a full hearing could be held. She alleged the child came back from the father’s custody on July 8, 2023 in “urine soaked clothing” and said the father had touched his “private area.” At the hospital, the child told a staff member he “feels unsafe” at his father’s home and that his father “hits him” and “touch[es] his privates.” The mother also alleged the child had frequent bedwetting, feared using the bathroom alone, developed tics, and exhibited dissociation.

The superior court commissioner denied the temporary DVPO and did not set a full hearing, marking the box that stated the petition did not list a specific incident and approximate date of the behavior supporting the protection order. The order also indicated the petitioner had 14 days to amend the petition before it was dismissed. The commissioner marked the box stating service on the father was “not required” because “[t]he petition was denied.”

Washington Breath Test Admissible Despite “Strands” of Tobacco in Defendant’s Mouth

August 30, 2024 | by Blair & Kim, PLLC

To admit evidence of a breath test in a Washington criminal case, the state must produce prima facie evidence of certain facts, including that the tested person did not have any foreign substances in their mouth in the fifteen minutes before the test. RCW 46.61.506. The state can make this showing with evidence a check of the person’s mouth found no foreign substances or evidence that the person denied having anything in their mouth.

According to the appeals court’s unpublished opinion, the defendant was involved in a dirt bike collision. He told the deputy on the scene that he had consumed alcohol a few hours earlier. The deputy said the defendant had chewing tobacco in his mouth but removed it at the scene. The deputy arrested the defendant for driving under the influence and took him to jail.

At the jail, the deputy prepared to give the defendant a breath alcohol test. He asked if the defendant had anything in his mouth and the defendant answered no. The deputy observed strands of tobacco in the defendant’s teeth that were not taken out before the test.

Washington Appeals Court Reverses Juvenile’s Conviction Based on Judge’s Questioning of Witnesses

August 28, 2024 | by Blair & Kim, PLLC

Individuals facing Washington criminal charges have a due process right to a “fair trial in a fair tribunal.” A person’s due process rights may be violated if the court acts as an advocate instead of a neutral arbiter. A juvenile recently challenged his conviction after the trial judge questioned the prosecution’s witnesses.

The 15-year-old juvenile was charged with escape in the second degree. The state alleged he had “knowingly escape[d]” from home custody.

Witnesses

A community placement specialist testified about ankle monitor technology and electronic home monitoring (“EHM”). He was asked on cross examination if he remembered going over the contract with the juvenile or if his answers were based off the reports. He testified that he “felt” like he had, but could not say so for certain.

U.S. Supreme Court Denies Partial Stays of Title IX Injunctions

August 21, 2024 | by Blair & Kim, PLLC

The U.S. Supreme Court has denied the government’s emergency applications for partial stays of the preliminary injunctions against the new Title IX Final Rule while the appeals are pending in the Fifth and Sixth Circuits. The preliminary injunctions are not nationwide, but apply only to the plaintiffs.

The government argued the challenged provisions of the rule should be severed so that the rest of the Final Rule could take effect. Those provisions are 34 C.F.R. §106.10, which defines sex discrimination, §106.31(a)(2), which addresses sex-separated spaces and prohibits schools from adopting policies that prevent a person from participating in an education program or activity consistent with their gender identity, and the definition of hostile environment harassment in §106.2. The Court noted the lower courts had determined that the new definition of sex discrimination, including discrimination on the basis of sexual orientation and gender identity, affected many of the other provisions and could not readily be severed, at least at the preliminary stage. The lower courts also noted that schools would have difficulty applying the Final Rule when parts of it were enjoined.

The government had the burden of showing that its severability argument was likely to succeed and that the equities favored a stay. The Court concluded the government had not met that burden with the limited record and emergency applications. The Court determined the government had not given it a sufficient basis to overturn the lower courts’ conclusions that the challenged provisions were intertwined with the other provisions or identified any specific provisions that were sufficiently independent. In addressing the equities, the Court noted the Sixth Circuit had already expeditated the case and anticipated the Courts of Appeal “will render their decisions with appropriate dispatch.”

Washington Supreme Court Holds Financial Need Not a Prerequisite to Spousal Maintenance Award

August 13, 2024 | by Blair & Kim, PLLC

Washington spousal maintenance is intended to equalize the parties’ standard of living for an appropriate period. Pursuant to RCW 26.09.090, a court may order spousal maintenance in an amount and for the period it deems just after it has considered all relevant factors, including: the financial resources of the requesting spouse and their ability to meet their needs independently; the time they need to acquire sufficient education or training to obtain appropriate employment; the standard of living established while the parties were married; the marriage’s duration; the age, condition, and financial obligation of the spouse seeking maintenance; and the ability of the other spouse to meet their own needs and financial obligations while meeting those of the spouse seeking maintenance. A court abuses its discretion if it awards maintenance that is not based on a fair consideration of these factors.

Divorce Case

A former husband recently challenged a spousal maintenance award in the Supreme Court of Washington. The parties had been married for more than 20 years when they separated in 2015. The husband had a bachelor’s degree. The wife had graduated high school and attended a year of college, but had not earned a degree. They bought a home during the marriage and it was paid off before the divorce was finalized. According to the Washington Supreme Court, they had “a secure, middle-class lifestyle” during the marriage.

After the wife lost her job during her second pregnancy in 1997, the parties agreed she would not go back to work and would be a stay-at-home parent. She went back to work part-time in 2004 and worked only part time until 2007. Her highest net annual income during that period was $10,485 in 2007. She worked as a receptionist at a dental office from 2009 until she was terminated in 2017, earning an average of $30,000 for much of that time. In October 2020, she was working in a call center. According to her October 2021 financial declaration, she made $2840 each month with expenses totaling $2,719.

Washington Appeals Court Overturns Conviction Based on Search of Probationer’s Car

July 31, 2024 | by Blair & Kim, PLLC

The U.S. and Washington Constitutions generally protect individuals from unlawful searches. Although individuals on parole or probation have somewhat diminished privacy rights, there are still limitations on when they can be searched. A defendant recently appealed his conviction, arguing the search of his vehicle was improper.

According to the appeals court’s published opinion, the defendant was pulled over for suspicion of driving on a suspended license in October 2020. When the officer found out the defendant was on probation, he contacted the Department of Corrections and requested a community custody officer (“CCO”). The defendant’s probation arose from a previous firearm conviction.

Upon reviewing the conditions of the defendant’s community custody, the CCO found that the defendant was in violation of a geographic boundary condition which prevented him from being in the Central District of Seattle, where he was pulled over. The CCO testified that the geographic restriction had been requested because the defendant was listed in a police data base as a member of a gang associated with that area.