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According to the appeals court’s unpublished opinion, the father had repeatedly assaulted the mother during her pregnancy with their child.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.
When the visitation supervisor took the child to visit his father in September 2022, she reported that the child was extremely upset and reluctant and refused to get out of the car. The father grabbed him and tried to take him out of the car by force. The father’s wife told the child the police would make him go. Once the child got out, the supervisor saw the father holding the child forcefully to try to get him into a vehicle. A witness told the police the child screamed “no no no don’t take me.” The supervisor called 911 and subsequently reported the incident to DCYF.
The court ordered the child stay with his father three days a week in April 2023.
DVPO Petition
The mother petitioned for a DVPO against the father protecting both the child and herself in December 2023. She alleged the child had “expressed suicidal ideation and plans. . .after [the father] physically assaulted him.” She alleged the child disclosed the father had shoved the child and knocked him off a chair and to the ground. She stated “immediate crisis intervention was deemed necessary. . .”
According to the mother’s petition, the parties reached a verbal agreement for the child to stay in his mother’s care and the father to get make-up time. The father, however, appeared at the child’s “ninja class” to take him for a visit. The petition alleged the father’s unexpected appearance “disrupted the established agreement” and caused the child “additional emotional distress.” The petition alleged the father had yelled and obstructed the mother and child from leaving the parking lot.
The petition alleged the father “physically assaulted” the child on February 22, 2023 by chasing him and throwing him against a brick wall. The petition also described a 2015 incident in which the father had illegally entered the mother’s home and refused to leave, prior to the court ordering a five-year restraining order. The mother alleged the father came to her home on his motorcycle in June 2022 and did a burn-out in the driveway. She also alleged the father had threatened to “do what I need to do to destroy [the mother]” in a statement to the child’s therapist in 2017.
In a video session with the reunification counseling supervisor, the father denied physical abuse of the child. He argued claims about physical abuse of the child were part of the parental alienation and coaching by the mother. He also denied there was any agreement that he forfeit a visit on December 1, 2023. He also denied yelling or blocking the mother from leaving. He disputed the earlier incidents had occurred and said they had been addressed in previous proceedings.
The child’s therapist testified at the hearing. She said the child told her the father had pushed him up against the building where the reunification therapy occurred because he tried to leave. He also told her the reunification counseling supervisor told him it “was just parenting” and he was told it was to stop him from running out into cars. He also told the child therapist that he had said something rude to the father in a therapy session and the father shoved him off the chair. The therapist testified that the child told her the father had grown more angry over time, that the child did not trust the father, and was afraid of him.
The reunification counseling supervisor testified the father had not assaulted the child during any therapy sessions. She testified about the incident in which the child said the father pushed him against the building. She had seen the child start to run toward traffic and told the father to get him. She testified the child was headbutting and kicking his father and his father “had to hold him. . . “ She said she “was within three feet of him” at the time and “would never tolerate” the father slamming the child against a brick wall.
The commissioner determined there was insufficient evidence of domestic violence and denied the DVPO. The commissioner also found “no dispute that [the child] is in distress.”
The mother moved for revision. At the revision hearing, the trial court noted it was not appropriate for it to consider factual determinations the family law court had made. The trial court pointed out that the father and the professional who witnessed the November 28 incident denied that the child had been assaulted. The trial court also stated it could not find by a preponderance of the evidence that the father had committed domestic violence against the child.
In its order, the court stated it could not find by a preponderance of the evidence that domestic violence occurred to the mother or the child “due to conflicting credible evidence. . .”
The Mother’s Appeal
The mother appealed.
Pursuant to RCW 7.105.225, a court shall issue a protection order if the petitioner proves the required criteria by a preponderance of the evidence. To obtain a DVPO, the petitioner must show they have been subject to domestic violence by the respondent. A petitioner may also seek a protection order on behalf of any minor family or household members. RCW 7.105.100.
The mother argued the trial court abused its discretion by concluding prior incidents of domestic violence had been resolved in the family law court proceedings, refusing to consider prior incidents due to the passage of time, and improperly considering the father’s allegations of “parental alienation” in the family court proceeding.
The appeals court disagreed, noting the trial court had denied the petition because the mother failed to show domestic violence by a preponderance of the evidence. The court noted there was nothing in the record indicating the trial court had not considered the evidence and it had expressly stated it considered the whole case file. The court did not deny the petition based on the family law proceedings.
The mother also argued the trial court abused it discretion when it found insufficient evidence of fear of physical harm. She argued the court had disregarded statements she and the child made that, when taken with the corroborating evidence, proved domestic violence. The appeals court also rejected this argument, noting the court had stated it considered the parties’ argument. The mother had not shown the court failed to consider fear of physical harm.
The appeals court also rejected the mother’s argument the trial court’s written findings were insufficient, noting the court had given the specific reason for the denial as a failure to show by preponderance of the evidence that domestic violence had occurred.
Seek Legal Advice
In this case, the court found there was insufficient evidence of domestic violence to support a DVPO, partially based on conflicting evidence. If you are seeking or opposing a DVPO, a skilled Washington civil protection order attorney can help. Blair & Kim, PLLC, has extensive experience in family law matters as well as civil protection orders. Schedule a consultation by calling (206) 622-6562.