Seattle Attorneys Blog

Washington Court Denies Father’s Relocation in Shared Custody Case

January 24, 2019 | by Blair & Kim, PLLC

Custody issues can get complicated when one parent wants to move. There is a presumption that relocation by the custodial parent will be permitted, but the non-custodial parent has the right to object. Things are not so straightforward, however, when the parents share custody equally.

A father recently appealed a court’s denial of relocation where the parents shared custody. The couple divorced in 2012. The child resided with the mother the majority of the time until 2016. In 2016, the court approved an agreed-upon parenting plan that split residential time equally on a 50/50 basis. The designated both parents as having “equal rights and responsibilities…”

The plan also provided that either parent who planned to move would give notice to anyone entitled to court ordered time with the child. The father filed a notice in April, 2017, stating his intent to move with the child. His current wife was entering a five-year residency in emergency medicine and pediatrics in Baltimore, and he planned to join her there.

Washington Appeals Court Upholds Anti-Harassment Protection Order

January 24, 2019 | by Blair & Kim, PLLC

Washington civil protection orders are available to protect individuals from contact by someone who has harassed, threatened, or assaulted them. Washington has several types of protection orders that may apply in various situations, including an anti-harassment protection order. An anti-harassment protection order may be issued against a person who has harassed another. Unlike a domestic violence protection order, it does not require evidence of a particular type of relationship between the parties.

A Washington appeals court recently considered an appeal of an anti-harassment order. A woman had petitioned for an anti-harassment order against her ex-spouse’s new romantic partner. The petitioner alleged the respondent harassed and threatened her through calls, texts, and social media. The respondent was a resident of New Mexico. The court issued the temporary anti-harassment protection order and scheduled a hearing. Both women testified at the hearing. The court ultimately issued a three-year anti-harassment order prohibiting the respondent from direct or indirect contact with the petitioner. The respondent appealed.

The respondent argued the trial court did not have personal jurisdiction over her because she is not a resident of the state and has insufficient contact with the state. She also argued that there was not any evidence that any of the contact “originated in the state of Washington.” The appeals court found, however, that the statute, RCW 10.14.155, allows jurisdiction over non-residents of Washington in some situations when the conduct occurred outside the state. The statute provides for jurisdiction where the respondent’s conduct represents an “ongoing pattern of harassment that has an adverse effect on the petitioner,” if the petitioner is a Washington resident. The petitioner in this case was a Washington resident.

Washington Court Upholds Restitution for Loss of Gun Held as Evidence

January 18, 2019 | by Blair & Kim, PLLC

Restitution is a concept in criminal law that requires an offender to compensate crime victims for their losses. It is designed to both punish the offender and compensate the victim. In a Washington criminal case, restitution is to be ordered when the defendant is convicted of an offense that results in personal injury or property damage or loss. The injury or loss must be “causally connected” to the offense. Generally, this means that the loss would not have occurred but for the crime. The loss does not, however, have to be foreseeable.

In a recent case, a court ordered restitution for the loss of a weapon that was in the possession of the sheriff’s office. The defendant challenged a court order to pay restitution to the owner of a gun he was convicted of stealing. He argued the court erred in ordering him to pay restitution when the gun could have been returned to the owner instead.

According to the court’s opinion, the man had been served with a no-contact order that arose from an arrest for assaulting his estranged wife. In the same day, he visited the gun owner and asked to see his guns. He stole a pistol and left while the gun owner was in the bathroom. He later used the weapon to threaten his wife. The gun was recovered by the sheriff’s office and placed into evidence. The defendant admitted stealing it from the owner.

Washington Court Finds No Proximate Cause and No Res Ipsa Loquitur in Ladder Fall Case

January 18, 2019 | by Blair & Kim, PLLC

The plaintiff in a negligence case generally must prove all four elements of negligence. In some rare cases, however, a Washington personal injury defendant may not have to prove the negligence elements based on the doctrine of res ipsa loquitur. Res ipsa loquitur is a doctrine that allows plaintiffs to succeed on a negligence claim without proving a specific act of negligence in certain circumstances. The plaintiff must show that the accident that resulted in the injury is a type that does not ordinarily occur absent negligence, that the injury was caused by something within the defendants’ exclusive control, and that the plaintiff did not contribute to the accident.

A plaintiff recently argued res ipsa loquitur applied to his fall from a ladder. A friend asked the plaintiff to help him attach trim to the soffit of an outbuilding on some property he co-owned. The friend had set up two stepladders. The friend held the ladder as the plaintiff ascended it. The plaintiff had not asked him to do so and did not expect him to continue to hold it. The plaintiff stated the ladder felt steady, but the next thing he remembers is being on the ground with blurry vision. He did not know if the ladder broke or just fell. He did not see it after he fell.

The plaintiff sustained a punctured lung, torn spleen, and other injuries. The friend later told the plaintiff he did not know what happened. He turned his back and the next thing he knew, the plaintiff was on the ground.

Washington Dept. of Corrections Not Liable for Death of Domestic Violence Victim

December 31, 2018 | by Blair & Kim, PLLC

The Department of Corrections (DOC) has a duty to supervise offenders who are released on supervised probation. The DOC is generally not liable for Washington personal injuries caused by a probationer, unless it acts with gross negligence in supervising him or her. To show gross negligence, a plaintiff must show that the DOC substantially breached its duties and acted without even slight care.

The Washington Supreme Court recently considered whether the DOC was liable for the murder of a woman by a man on probation.

According to the Court’s opinion, the probationer received a suspended sentence in 2010 for misdemeanor violation of a court order that prohibited him from contacting the victim, on the condition he serve 180 days in jail and 24 months’ probation. He physically assaulted and threatened to kill the victim in 2011, resulting in a guilty plea to misdemeanor assault and felony harassment. This sentence also included 24 months of probation. The court ordered a number of conditions, including prohibiting contact with the victim.

Prejudicial Evidence in Washington Civil Protection Order Violation Cases

December 24, 2018 | by Blair & Kim, PLLC

Washington criminal defendants are entitled to a fair trial. In some cases, prosecutors may seek to introduce irrelevant and inflammatory evidence that tends to prejudice the jury. Domestic violence and civil protection order violation cases can be particularly vulnerable to prejudice. In some cases, a prosecutor’s misconduct may lead to an unfair trial for the defendant. A defendant in a Washington domestic violence case recently challenged his conviction, alleging prosecutorial misconduct.

The defendant was arrested following a 911 call. According to the appeals court’s opinion, the caller described a man, later identified as the defendant, hitting a woman, pulling her hair, and choking her. The defendant gave the responding officers his brother’s name and information. Officers found the defendant’s identification during a search at the jail. They also learned there was a no-contact order prohibiting him from contact with the alleged victim.

The defendant was ultimately charged with domestic violence felony violation of a no-contact order. He was also charged with first degree criminal impersonation and resisting arrest. Additionally, he was charged with escape from community custody, but this charge was tried separately. The defendant was found guilty of all charges. He appealed.

Washington Supreme Court Finds Detaining Incompetent Defendant Violation of Substantive Due Process

December 13, 2018 | by Blair & Kim, PLLC

Sometimes a criminal defendant is not competent to stand trial. Washington criminal law sets out procedures for competency evaluations and restorative treatment. Unfortunately, there are not always sufficient resources for these procedures to timely occur. This lack of resources does not justify holding defendants in jail for excessive amounts of time until resources are available.

A defendant recently challenged his conviction and alleged a violation of substantive due process because he had been detained in jail pending transfer to the hospital for competency restoration treatment. The trial court found the defendant was not competent to stand trial and ordered him to be committed to Western State Hospital (WSH) for 45 days within 15 days of the order. 76 days passed before the defendant was admitted to WSH. During that period, he twice moved to have the charges against him dismissed based on a substantive due process violation. He also moved in the alternative for the hospital to show cause as to why it should not be held in contempt. The court ordered a show cause hearing, but denied the motion to dismiss. Before the hearing occurred, the defendant filed two more motions to dismiss.

A doctor provided a declaration for the show cause hearing stating the hospital had to put the defendant on a waiting list. The doctor stated the average wait time for a 45-day restoration case was 71 days.

Shared Residential Time Versus Split Residential Time and Washington Child Support

December 13, 2018 | by Blair & Kim, PLLC

Child support can be a very contentious issue. When parents share residential time equally, one parent may feel that he or she should not be responsible for child support. Under Washington family law, however, a court does not have to offset one parent’s basic child support obligation against the other parent’s basic child support obligation when they share residential time equally.

The father in a recent case appealed a child support order, arguing the court had failed to apportion the child support between both parents. The parties had previously been married and had two minor children together. They shared equal residential time. The original child support order required the father to pay $1,449.36 monthly.

The father petitioned to modify the child support after his company went out of business. The parties entered a written stipulation to suspend the child support payments, but the mother reserved the right to seek back support from the time of the suspension.

Error in Washington Protection Order Does Not Necessarily Invalidate the Order

November 26, 2018 | by Blair & Kim, PLLC

When a Washington civil protection order is issued, the parties generally know who the protected party is. In some cases, however, there may be errors in the identification of the protected party in the order. A defendant recently challenged his conviction for violation of a domestic violence court order because the domestic violence no-contact order identified a race for the protected party that did not match his wife’s race.

In 2013, the court issued a domestic violence no-contact order that prohibited the defendant from contacting a named individual. The order included the protected party’s birthdate. It included a finding of fact that the protected party was the defendant’s “[i]ntimate partner.” The name and birthdate of the protected party matched that of the defendant’s wife. The order also stated the protected party was a black female. It expired in July 2018.

According to the appeals court’s opinion, the defendant’s wife called 911 in February 2017 and reported that the defendant had assaulted her. The defendant told the responding officer that his wife had assaulted him at her home. He acknowledged there was a no-contact order that prohibited him from contacting his wife, but stated he thought it had expired.

Washington Schools Not Held to Heightened Duty of Care

November 16, 2018 | by Blair & Kim, PLLC

When parents send their children to school, they expect the school to supervise and care for the children. They do not anticipate a child being seriously injured at school. Parents may think the school has a heightened duty of care toward the students in its care, but that may not be the case, as recently found by the Washington Supreme Court.

According to the Court’s opinion, the plaintiff was injured in her high school woodshop class while using a radial table saw. She had been using a push stick to guide a board through the saw, but the board got stuck and she tried to dislodge it with her hand. Her thumb was severely cut, ultimately resulting in a partial amputation.

The teacher was supervising students outside the room and could not see the table saw when the plaintiff was injured. The teacher testified how he trained the students to use the table saw. He showed the students how to cut, and required them to make cuts under his supervision until they did it correctly. The students were required to take a written test. They were also required to make about 40 to 80 cuts under the teacher’s supervision. The plaintiff had made at least 60 cuts under the teacher’s supervision before being allowed to use the saw independently.