Seattle Attorneys Blog

Washington Appeals Court Affirms Dismissal of Custody Modification Petition for Lack of Adequate Cause

July 19, 2024 | by Blair & Kim, PLLC

A trial court generally can only modify a Washington parenting plan if it finds, based on new facts since the prior plan, that there has been a substantial change in circumstances of the nonmoving party or the child. The court must also find the modification is in the child’s best interests and necessary to serve the child’s best interests. RCW 26.09.260. RCW 26.09.270 requires a court to deny a modification motion unless adequate cause to hear the motion is established in the affidavits. A mother recently challenged court orders dismissing her modification petition and denying her motion for reconsideration.

Pursuant to the permanent parenting plan, the child lived primarily with the father. The mother could have visitation every other weekend if certain conditions were met. According to the appeals court’s unpublished opinion, there were limitations on the mother’s visitation due to her “long-term problem with drugs, alcohol or other substances. . .” The parenting plan further provided that visitation would be revoked if she consumed drugs or alcohol.

Modification Petition

The mother petitioned for modification in 2023, alleging the father engaged “in a pattern of emotional and psychological abuse as well as coercive control over [the child].”

Washington Appeals Court Reverses Denial of DVPO

July 9, 2024 | by Blair & Kim, PLLC

A wife recently appealed a trial court’s decision not to grant a domestic violence protection order (“DVPO”) in a divorce proceeding. She argued that RCW 7.105.225(1)(a) required the court to issue the DVPO after a finding of domestic violence and that the court incorrectly interpreted the statute to require it to perform a risk analysis after it found domestic violence had occurred. She also argued the court erred in denying the DVPO for reasons that were expressly prohibited in the statute.

RCW 7.105.225(1) states “the court shall issue a protection order” if the petitioner proves the statutory requirements by a preponderance of the evidence. To obtain a DVPO, the petitioner must prove they were “subjected to domestic violence by the respondent.” The statute further sets forth grounds for which the court may not deny or dismiss the petition for a protection order, including: either party being a minor, unless relief or remedies are specifically limited elsewhere in Chapter 7.105 based on a party’s age; the petitioner’s failure to report the conduct to law enforcement; a no-contact order or restraining order having been issued in a criminal or domestic relations proceeding; the petitioner’s ability to obtain relief in another action or proceeding; pending criminal charges against the respondent; the time since the last incident; or the respondent not living near the petitioner. RCW 7.105.225(2).

In this case, the court found the wife had been subjected to domestic violence by the husband. The court concluded the statute suggested the court is then to conduct a risk analysis to determine whether to grant the DVPO. The trial court then concluded that the statute allowed it to deny the DVPO because of the combined reasons of the passage of time since the incident occurred and the husband no longer living near the wife.

Two Federal Courts Issue Preliminary Injunctions Against Title IX Final Rule in Certain States

June 30, 2024 | by Blair & Kim, PLLC

Two federal courts have granted preliminary injunctions enjoining the Department of Education (“Department”) from implementing or enforcing the new Final Rule, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance in certain states.

The States of Louisiana, Mississippi, Montana, and Idaho filed suit in the Western District of Louisiana, and filed motions for preliminary injunction and motions for stay to prevent the Final Rule from taking effect on August 1, 2024. The States of California, Colorado, Delaware, Hawaii, Illinois, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and the District of Columbia filed an amici curaie brief opposing the motions. The court found the plaintiffs were likely to succeed on the merits that the Final Rule is contrary to the Administrative Procedures Act, violates the Free Speech Clause and the Free Exercise Cluse of the First Amendment, violates the Spending Clause, and is arbitrary and capricious. The court also stated it showed “the abuse of power by executive federal agencies in the rulemaking process.” The court granted the motion for preliminary injunctions and enjoined and restrained the Department from implementing or enforcing the Final Rule and enjoined and restrained the Final Rule from going into effect on August 1, 2024, pending additional orders from the court. This injunction only applies to the States of Louisiana, Mississippi, Montana, and Idaho.

The States of Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia filed suit in the Eastern District of Kentucky to enjoin and invalidate the Final Rule. The Christian Educators Association International and a fifteen-year-old female student identified as “A.C.” were allowed to file an Intervenor Complaint. In its opinion, the Eastern District of Kentucky stated “the Department would turn Title IX on its head by redefining ‘sex’ to include ‘gender identity.’” The court concluded the Department exceeded its authority to promulgate regulations pursuant to Title IX because its interpretation conflicts with Title IX’s plain language. The court also stated there were “serious First Amendment implications” with the Final Rule’s definition of sexual harassment, which the court determined could require educators to use student’s preferred pronouns, even if doing so conflicted with the educator’s own religious or moral beliefs. The court further concluded the Department’s actions were arbitrary and capricious, stating the Department had not provided a reasoned explanation for departing from its previous interpretations or for leaving in place regulations that conflicted with the new requirements regarding gender-identity.

Washington Appeals Court Remands Juvenile Case for Consideration of Racial Bias

June 29, 2024 | by Blair & Kim, PLLC

In some circumstances, a Washington juvenile court may decline or waive jurisdiction and transfer a case, resulting in the juvenile being tried as an adult. The U.S. Supreme Court set forth the factors to be considered by a juvenile court in making a decision to decline jurisdiction in Kent v. United States. Division One of the Washington Court of Appeals has further held that when a defendant raises the issue of racial bias in a declination hearing, supported by some evidence, the juvenile court must rule on the issue. State of Washington v. Quijas. In a recent case, Division Three also reviewed a case in which the juvenile court had not addressed the issue of racial bias or discrimination.

At the time of the appeals court’s unpublished opinion, the fifteen-year-old defendant was pending trial for first degree murder. The state alleged the defendant shot and killed a nineteen-year-old man. The state also alleged the murder had been unprovoked and premeditated, and that the juvenile and the victim did not know each other.

The defendant was just fourteen years old at the time of the shooting. The state moved to have him tried as an adult. The court admitted 49 exhibits and heard eight witnesses testify, including the defendant’s mother, his school principal, a gang expert, juvenile detention staff, and a forensic psychologist.

Washington Court Did Not Have Authority to Review Parenting Plan Arbitration Decision

June 20, 2024 | by Blair & Kim, PLLC

Arbitration and alternative dispute resolution can save parties to a Washington divorce some of the expense and stress of litigation. The ability to challenge a decision resulting from a voluntary arbitration may be limited, however. In a recent case, a father sought court review of an arbitration decision relating to certain parenting plan disputes.

The parties got married in 2014 and had two children together before separating in early 2022. They filed a joint separation petition, but the mother subsequently withdrew. The father amended the petition to seek dissolution.

The parties later signed a CR 2A Stipulation and Agreement that stated they agreed the agreement was “fair, just and equitable” and were signing “freely, knowingly and voluntarily. . .” The agreement indicated it was the parties’ “full and final settlement on the issues in this divorce, including most of the provisions for the final parenting plan, the provisions for the child support order, and property division. It also stated the parties would negotiate the open items of the parenting plan, and if they could not reach an agreement, they would mediate the remaining items with the first available of three listed mediators. If they failed to reach a mediated settlement, they agreed to binding arbitration.

Washington Appeals Court Reverses Firearms Conviction Based on Search by Department of Fish and Wildlife

June 11, 2024 | by Blair & Kim, PLLC

RCW 77.15.080 authorizes fish and wildlife officers to temporarily stop a person, based on articulable facts they are engaged in fishing, harvesting, or hunting activities. to ensure they are in compliance with Washington fish and wildlife laws. A defendant recently challenged his firearms conviction, arguing he was improperly stopped by Department of Fish and Wildlife (“DFW”) and the evidence obtained during the stop should not have been permitted.

According to the appeals court’s opinion, DFW officers saw the defendant’s SUV slowly driving on a green dot road during hunting season. They also noticed he had on an orange sweatshirt. They stopped him, believing he was engaged in hunting activities. The officers found a loaded shotgun and a rifle in the vehicle. The defendant was cited and charged with misdemeanor firearms violations.

The defendant moved for suppression of the gun evidence, arguing that the stop been illegal. The trial court found the officers had reasonably believed the defendant was engaged in hunting activities and denied the motion. The jury convicted the defendant.

Seventh Circuit Finds Student’s Due Process Rights Violated in Expulsion

May 31, 2024 | by Blair & Kim, PLLC

It can be difficult for a student who has faced disciplinary action for alleged misconduct to successfully show a Title IX violation by the school in the investigation and disciplinary process. Even if they cannot show sex-based discrimination, in some cases, the student may be able to show the school violated their due process rights.

A medical student at an Indiana university filed suit after he was expelled from the university. He appealed to the Seventh Circuit when the federal court granted summary judgment in favor of the defendants.

According to the Seventh Circuit’s opinion, he was accused of physical abuse by a female student with whom he was romantically involved. The Office of Student Conduct found him culpable and suspended him for a year. The university placed conditions on his return. The Student Promotions Committee for the medical school recommended expulsion, but the Dean rejected that recommendation.

Washington Appeals Court Considers Expanded Seizure and Evidence of Prior Convictions

May 28, 2024 | by Blair & Kim, PLLC

In many Washington criminal cases, defendants challenge the evidence the state wants to use against them. In a recent case, a defendant appealed his conviction, arguing the trial court erred in admitting evidence obtained from his vehicle and evidence of previous criminal convictions.

According to the appeals court’s unpublished opinion, the police received a report someone was trespassing in the parking lot of a hotel. The responding officer found the defendant sleeping in a running vehicle with a beer can outside the driver’s door. The officer could not wake the man and called in another officer to investigate. The first officer looked inside the vehicle and observed what appeared to be credit card numbers on notebook paper in the backseat. The 16-digit numbers were broken into four sets of four numbers and there was also information the officer believed to be expiration dates.

The second officer woke the man when he arrived. The officers identified the defendant and discovered he had a felony warrant and prior convictions for identity theft and other “fraud-related” crimes. The second officer conducted field sobriety tests and decided not to arrest the defendant for physical control of a vehicle while impaired.

Former Husband Cannot Be Required to Name Ex-Wife Sole Beneficiary of Retirement Accounts in Washington Divorce

May 24, 2024 | by Blair & Kim, PLLC

A trial court in a Washington divorce case has broad discretion to justly and equitably distribute the property. The court must analysis the relevant factors as set forth in RCW 26.09.080. The court may distribute both community and separate property and does not need to find exceptional circumstance to support awarding part of one spouse’s separate property to the other. Additionally, it may be fair and equitable for the court to award one spouse’s separate property to the other spouse who has less earning capacity. A former husband recently challenged a division that awarded the former wife a share of his retirement and pension, including his premarital retirement assets.

According to the appeals court’s unpublished opinion, the parties were married for about ten years when they separated in 2019. In March 2021, the wife petitioned for legal separation, and that petition subsequently became a petition for dissolution. The trial focused on the property distribution. Although there was a prenuptial agreement, the trial court found it was unenforceable.

The wife had worked as a flight attendant and later became a stay-at-home mother after the children were born. She worked as an Amazon courier when the trial occurred. She had about $85,000 in her retirement account.

Collateral Estoppel Precludes Child from Seeking DVPO after Washington Court Denied Custody Modification

May 13, 2024 | by Blair & Kim, PLLC

Allegations of domestic violence can affect a Washington custody case. A Washington appeals court recently considered whether a child could pursue a Domestic Violence Protection Order (“DVPO”) against his mother after another court denied his father’s petition to modify custody based on the same domestic violence allegations.

Walla Walla County Proceedings

When the parents divorced in 2016 or 2017, the parenting plan named the mother as primary parent and gave the father visitation.

According to the unpublished opinion of the appeals court, the father petitioned for an immediate restraining order protecting him and the child from the mother in Walla Walla County in June 2022. At the same time, he petitioned for modification of the parenting plan, alleging the mother had been verbally and physically abusive toward the child and that the child refused to go back to her home. He attached a large number of text messages between the mother and the child. The trial ultimately found there was “no substantial change of circumstances” and denied the father’s modification petition and awarded the mother attorney’s fees.