Seattle Attorneys Blog

Washington DVPO and the Relocation Presumption

September 30, 2023 | by Blair Kim Moeller, PLLC

Washington family law recognizes a rebuttable presumption that relocation of a child under a parenting plan will be permitted. That presumption does not apply, however, if the parents have “substantially equal residential time.” “Substantially equal time” generally means the child spends at least 45% of their residential time with each parent pursuant to a court order. RCW 26.09.525. A father recently challenged a relocation, partly because the trial court applied the presumption by considering how the residential time changed under a Domestic Violence Protection Order (“DVPO”).

According to the appeals court’s opinion, the mother sought a DVPO against the father after seeing severe bruising on their two-year-old daughter.

The mother filed a notice of intent to move the children. She asked that the father be evaluated for substance abuse and anger management or domestic violence and comply with the treatment recommendations. She also requested the court suspend his residential time for non-compliance.

Eighth Circuit Affirms Dismissal of Expelled High School Student’s Title IX Case

September 26, 2023 | by Blair Kim Moeller, PLLC

Much of the Title IX litigation brought by students accused of sexual misconduct occurs at the post-secondary level, but a male student recently sued his former high school after being expelled.

The plaintiff was a student at an all-boys private high school in Nebraska. According to the Eighth Circuit’s opinion, school staff overhead the plaintiff in a conversation with his friend. The plaintiff claimed he told his friend “that he would not have sex” with a particular teacher, but the staff believed he said he would have sex with the teacher.

The school initiated an investigation. The plaintiff alleged the Dean of Students said he considered the plaintiff “guilty” and “repeatedly demanded” the plaintiff admit he said he would have sex with the teacher. The plaintiff claimed he ultimately gave “a false confession” in response to the “pressure” and was expelled.

Washington Appeals Court Reverses DVPO that Excluded Parties’ Minor Child

September 21, 2023 | by Blair Kim Moeller, PLLC

When a parent seeks a Washington domestic violence protection order (“DVPO”), they may want to include their minor children as protected parties. If the protection order is against the other parent, it can affect that parent’s visitation and custody. In a recent case, a mother appealed a DVPO that did not include her three-year-old child as a protected party.

The appeals court’s opinion stated the mother had petitioned for a protection order to protect herself and her child against her boyfriend, who was also the child’s father. She requested an order restraining him from any contact with her or the child, from coming within 1,000 feet of her home or workplace or the child’s daycare. She asked for sole custody of the child. She asked the court to order the father to participate in treatment or counseling. She requested the order be effective for over a year.

She alleged multiple incidents of domestic violence by the father, including incidents in which she said he shoved her and threatened her. She stated the father was under investigation for an incident in which he threw her against the wall and to the floor, choked her, and banged her head against the floor. She alleged this incident occurred in front of the child.

Washington Driver License Revocation Under RCW 46.20.285(4)

September 14, 2023 | by Blair Kim Moeller, PLLC

Under RCW 46.20.285, a Washington driver license must be revoked upon conviction of certain offenses. The statute requires the Department of Licensing to revoke the driver license when conviction of one of the listed offenses becomes final. A defendant recently challenged his judgment and sentence, arguing the court had applied the wrong version of the statute.

The appeals court obtained the details of what occurred from the affidavit of probable cause. It stated the defendant and another person took fragrances from a beauty store without paying. The store manager described the individuals and the vehicle they left in to police. An officer stopped a car matching that description. He saw several fragrance boxes in the floor and the back seat passenger had store alarm sensors in their lap. The defendant reached a plea agreement with the state and entered a guilty plea on one count of possession of stolen property in the second degree.

The only disputed issue at the sentencing hearing was whether the court should find that the vehicle was used in commission of the offense, leading to suspension of the defendant’s driver license for one year, pursuant to RCW 46.20.285(4).

Student Sues Private University Alleging Violation of ADA in Title IX Process

August 31, 2023 | by Blair Kim Moeller, PLLC

A student at a private university in New York recently filed suit against the university due to its alleged failure to accommodate his disability during a Title IX investigation. According to the complaint, the plaintiff enrolled in the university through a program for intellectually and developmentally disabled students (“Program”). The plaintiff alleged that he was notified of several complaints filed against him on October 6 and 7, 2022. He was also notified that the university had determined he was “an immediate physical threat. . .” and was suspended on an interim basis.

According to the complaint, the plaintiff’s parents obtained counsel on his behalf and his advisor requested accommodations during the Title IX investigation process. When the investigator contacted the plaintiff and his advisor regarding an interview, the advisor responded the plaintiff was “unable to adequately participate in an interview. . .” and would “require extraordinary accommodations.” The plaintiff alleged that in subsequent communications, the advisor indicated that the plaintiff wanted to participate in an interview if he received proper accommodations. The complaint alleged the advisor and investigator discussed the matter on the phone, but the plaintiff was still not offered or provided accommodations.

The complaint further alleged that, instead of granting accommodations or engaging in the interactive process, the university served the plaintiff with additional Notices of Investigation regarding more complaints and allegations against him. According to the complaint, the investigator again contacted the plaintiff and his advisor about scheduling an interview although he acknowledged he had not been contacted by the university’s Center for Disability Resources regarding accommodations. The complaint states the investigator subsequently advised the plaintiff he intended to proceed to the next step of the investigation.

Washington Court Rejects Defendant’s Entrapment Defense in Drug Case

August 28, 2023 | by Blair Kim Moeller, PLLC

To succeed in an entrapment defense, a Washington criminal defendant must show that the “criminal design” originated with law enforcement or someone acting under law enforcement’s direction and the defendant was induced to commit a crime he otherwise did not intend to commit. It is not sufficient for the defendant to show that law enforcement provided him an opportunity to commit the crime. RCW 9A.16.070. Pursuant to Washington case law, the test focuses on whether the defendant was predisposed to commit the crime. A defendant recently appealed his conviction, arguing entrapment.

A Sergeant with the Whitman County Sheriff’s Office created a Facebook profile under the name of “Pauline Niner” to meet people online who would be willing to sell drugs. At trial, the sergeant said he used a female identity because “[i]t attracts more people.” The sergeant had recently attended a training that addressed drug dealers and users communicating through social media and how officers could create a profile and engage in communication over social media.

According to the appeals court’s opinion, the defendant contacted “Pauline” and they discussed meeting. Pauline wanted methamphetamine and the defendant said he could get some. Various issues prevented him from providing her with the drugs on three occasions, but he stated he had a “little bit” on February 16, 2022. The sergeant arrested him when he got to the address.

Washington Appeals Court Affirms Denial of Post-Secondary Educational Support

August 20, 2023 | by Blair Kim Moeller, PLLC

Washington postsecondary educational support may be ordered when a child is dependent and relies upon the parents for reasonable necessities. The court has discretion in ordering postsecondary educational support. RCW 26.19.090 provides a non-exclusive list of factors to be considered.

A mother recently challenged a court’s denial of her motion for postsecondary educational support for her son after the court had awarded such support for her daughter a few years earlier.

According to the unpublished opinion of the appeals court, the initial child support order entered in 2012 was amended in June 2020 to adjust the support for the son and order the father to pay 58% of the daughter’s postsecondary educational expenses. At that time, $9,454.69 in monthly net income was imputed to the father.

Washington Juvenile Adjudicated Guilty of Fourth Degree Assault in Altercation with Sister

August 7, 2023 | by Blair Kim Moeller, PLLC

Young siblings sometimes scuffle, but they usually are not charged with a Washington crime as a result. A teenager recently challenged a guilty adjudication for fourth degree assault arising from an altercation with his younger sister.

According to the appeals court’s opinion, which relied primarily on the juvenile court’s unchallenged findings, the sixteen-year-old juvenile had recently had surgery and was weak and had lost weight. His eleven-year-old sister came upstairs to the bedroom where he was resting looking for the dogs to take them out before school. When she tried to get the juvenile’s dog, it nipped her and she struck it on the nose. The juvenile told her not to hit the dog.

She called the juvenile a name as she tried to get the other dog from under the bed. She said the juvenile gave her a “quick tap in the face with his foot.” She responded by throwing a bottle of lotion and a bottle of vitamins at him, hitting him with one of them.

Court Concludes Absolute Immunity Not Available for Statements in Sexual Misconduct Hearing

July 31, 2023 | by Blair Kim Moeller, PLLC

The Connecticut Supreme Court recently concluded a university disciplinary proceeding arising from a sexual assault allegation was not quasi-judicial and therefore did not afford the complainant with absolute immunity for the statements she made during the proceeding.

According to the court’s opinion, “Jane Doe” accused the plaintiff of sexual misconduct in disciplinary proceedings conducted by the Ivy League university they both attended. The plaintiff was expelled from the University. He filed suit in federal court against the university, several university employees, and Doe. His claims against Doe included defamation and tortious interference with business relationships.

The District Court concluded the disciplinary proceeding was quasi-judicial and Doe had absolute immunity for the statements she made during the proceeding under Connecticut law. It concluded extending immunity to the university’s disciplinary proceedings was warranted under Connecticut’s six-factor test to identify quasi-judicial proceedings and as a matter of public policy.

Washington Supreme Court Concludes Warrantless Search of Home Was Justified

July 30, 2023 | by Blair Kim Moeller, PLLC

The U.S. Supreme Court held in Caniglia v. Strom that the “community caretaking” exception to the warrant requirement did not extend to a residence. The Washington Supreme Court has recently considered application of that holding in a Washington criminal case.

According to the opinion, a deputy went to a home after 911 received a call that a caregiver had not come to work that morning. The caller also reported the caregiver had been involved in a domestic incident with her husband the day before. The deputy knocked and announced himself, but there was no answer.

He called the caregiver’s husband and told him he needed to talk with her. The deputy asked where she was and the husband said she should be at work. The husband confirmed the minivan in the driveway was hers. He provided his wife’s phone number. The deputy did not tell the husband his wife was missing or ask him to come home or for consent to check the residence.