FVAP

Why this case is important: 

• This is one of the few cases to clearly hold that trial courts may not disregard or minimize abuse allegations simply because they arise in the context of custody and visitation disputes.
• This is the first California appellate decision to expressly hold that incidents of abuse occurring outside the United States must still be considered when deciding whether to grant or deny a Domestic Violence Restraining Order.
• This case reaffirms several points of law important for DVRO cases, such as:
  • Using someone’s immigration status to threaten, pressure, or control them is a form of coercive control. 
  • Trial courts must consider the totality of the circumstances when deciding whether to grant or deny a DVRO. 

Summary of the Case

In this case, X.K., a Chinese emigrant, sought a Domestic Violence Restraining Order (DVRO) against her ex-husband, M.C., a U.S. citizen. She described a history of abuse–some of which occurred when the couple lived in China–including physical and sexual abuse while she was pregnant and after childbirth, strangulation, and threats. She also alleged M.C. continued his pattern of coercive control once she returned to California with their daughter in 2022. He, for example, threatened to divorce her if she did not follow his family’s rules, including being home every night and only working when their child was at school. He further threatened to kick her out of the residence and refused to let her use his car, limiting her to jobs within walking distance. M.C. also constantly changed his mind on whether he would assist X.K. with her green card application.

The trial court denied X.K.’s request, noting its belief that most of the issues involved disputes about custody and visitation and not abuse. The court also questioned whether it could consider abuse that happened multiple years ago in China.

The appellate court reversed, finding that the trial court erred when it determined X.K.’s allegations were “merely a dispute over custody and visitations that did not ‘fall under the definition of abuse’” and dismissed her DVRO request.  The appellate court explained that, if X.K.’s allegations of abuse were found to be credible, they could have established past acts of physical and sexual abuse and conduct that disturbed her peace.  The appellate court further noted that the trial court should have considered all the evidence, including past acts of abuse occurring in China, to determine whether M.C.’s recent conduct in California disturbed X.K.’s peace. As a result, the Court of Appeal remanded the case for a new hearing.

View the full Case Alert for practice tips. | View the Published Opinion.

Who was involved: FVAP Washington partnered with pro bono lawyers from Davis, Wright, Tremaine law firm to file a legal brief supporting Washington’s weapon surrender law.

Supporting Organizations

Many organizations joined to support this case:

• Battered Women’s Justice Project
• The National Family Violence Law Center at GW Law
• Clark County Volunteer Lawyer’s Program
• Eastside Legal Assistance Program
• Jewish Family Service in Seattle, Project DVORA
• Victim Rights Law Center
• Coalition Ending Gender-Based Violence
• The King County Prosecuting Attorney’s Office
• Spokane Regional Domestic Violence Coalition

The Problem Before This Case

Trial courts across Washington were inconsistently applying the weapon surrender law in protection orders. Many courts were:

• Not ordering weapon surrender at all, or
• Ruling that the law was unconstitutional

This inconsistency was based on an earlier court decision (State v. Flannery) that found problems with an older version of the weapon surrender law.

What This Case Was About

A person subject to a domestic violence protection order challenged Washington’s updated weapon surrender law. He claimed it violated several constitutional rights:

• 2nd Amendment: Right to bear arms
• 4th Amendment: Protection against unreasonable search and seizure
• 5th Amendment: Protection against self-incrimination
• Separation of powers: Claim that the legislature overstepped by telling courts how to enforce these orders

The Court’s Decision

The Washington Court of Appeals Division I ruled that the updated weapon surrender law is constitutional. Here’s how they addressed each challenge:

2nd Amendment (Right to Bear Arms)

• Court’s ruling: People subject to domestic violence protection orders can be prohibited from having weapons
• Why: The court cited the U.S. Supreme Court case Rahimi, which supports this limitation

4th Amendment (Search and Seizure)

• Court’s ruling: No constitutional violation
• Why: When someone is required to turn in weapons under a court order, they are doing it themselves – the government isn’t searching or seizing anything

5th Amendment (Self-Incrimination)

• Court’s ruling: No constitutional violation
• Why: The law gives people immunity from prosecution related to surrendering firearms, so they can’t be forced to incriminate themselves

Separation of Powers

• Court’s ruling: The legislature did not overstep its authority
• Why: Each branch of government remains independent, and the legislature can outline procedures for courts to follow

What This Means

Survivors across Washington state can now rely on this decision to ensure that trial courts will:

• Issue orders requiring abusers to surrender weapons
• Enforce these orders consistently

This removes the confusion that existed before, where some courts refused to issue these potentially life-saving orders.

Current Status

Important Update: In late July 2025, the person who challenged the law asked the Washington Supreme Court to review this decision. The case may still be appealed to the state’s highest court.

Bottom Line

This decision clarifies that Washington’s weapon surrender law is constitutional and must be applied consistently across the state to protect domestic violence survivors.

View the slip opinion

New case law reminds courts to focus on survivor’s reasonable apprehension of future abuse instead of unproven justifications for abuse and that any violations of a domestic violence restraining order (DVRO) must be taken seriously.

Why this case is important:

• • This case reaffirms that no new abuse is required. The court emphasized that a DVRO may be renewed solely based on the survivor having ongoing fear of future abuse based on the past incidents of abuse. The abuse that led to the original DVRO “will often be enough.”
  • Even a single knowing violation should be weighed seriously. In this case, the restrained party violated the DVRO by sending a text and an email saying she loved the survivor. The court made clear that any knowing violation of a protective order must be taken seriously, no matter how small it may seem.

• This case helps explain that it is inappropriate for the Trial Court to pressure litigants into settlement

• In a footnote, the Court of Appeal cautioned that trial courts encouraging settlement discussions may be inappropriate in DVRO cases involving serious abuse, violations of the restraining order, and where the survivor has expressed emotional distress at being near the restrained party. Trial courts often try to get survivors to agree to shorter orders, continuing the temporary order, or even entering mutual orders. But encouraging a settlement might not be appropriate in some cases.
• This case explains that medical explanations for any alleged abuse must be supported by substantial evidence.
• The restrained party claimed that her abusive conduct was caused by medication side effects. The Court of Appeal rejected this explanation because it was not supported by any evidence other than the restrained party’s own testimony and conclusions. The court emphasized that when a restrained party cites medical or psychological reasons for their abuse, merely claiming that medication side effects caused their behavior is insufficient.

View our Case Alert to read a summary of the case and practice tips. | View the Published Opinion.

Who was involved: FVAP Washington and Nida Javed from Eastside Legal Assistance Program (ELAP) worked together to get this court decision published, with help from volunteer Priscilla Moreno. The survivor joined us in filing the motion. The motion to publish was supported by co-signers: Project DVORA | Jewish Family Service, Seattle University School of Law Family Law Center, Clark County Volunteer Lawyer Program, and Tacomaprobono.

What This Case Decided

This was the first case to interpret an important but rarely-used part of Washington’s parenting plan law. The court ruled that when a judge finds domestic violence happened, they must make the abused parent’s safety the top priority when creating custody schedules.

Any limits placed on the abusive parent’s time with children must be designed to keep the victim safe from future harm during any contact between the parents.

The Background

• A mother testified that the father had abused her
• A guardian ad litem (court-appointed child advocate) agreed there was domestic violence
• The mother asked for limits on the father’s decision-making rights and custody time
• Despite finding that domestic violence occurred, the judge still:
  • Gave both parents equal decision-making power
  • Gave the father significant custody time
  • Created a schedule requiring up to 6 child exchanges per month (parents lived in different states)

Why This Matters for Survivors

The law says that when there’s a history of domestic violence, the abusive parent’s time with children should normally be limited. Most importantly, any custody arrangement must protect the safety of the abused parent.

The original parenting plan didn’t clearly show how it would keep the mother safe, so the case was sent back to create a new plan that follows the law and protects her safety.

Important Update

The law has changed since this 2024 decision (see House Bill 1620). There are now new exceptions that might allow:

• Joint decision-making, or
• More custody time for the abusive parent

However, if no exceptions apply, courts must still create safety-focused protections for the abused parent.

The new law still requires courts to consider and prioritize the abused parent’s safety. It specifically states that any limitations must be:

“reasonably calculated to protect a child from physical, sexual, or emotional abuse or harm… [and] also be reasonably calculated to provide for the safety of the parent who may be at risk of physical, sexual, or emotional abuse or harm that could result if the parent has contact with the other parent.”

Bottom Line

Courts cannot ignore domestic violence when making custody decisions. The safety of abuse victims must be a primary consideration in all parenting plans, even when the abusive parent is granted some custody time.

View the official published opinion

The case of State v. Sanchez  is significant for survivors because it acknowledges coercive control within a criminal context. It also advances public policy to protect survivors in both criminal and civil courts by recognizing that witness tampering is a form of control. This case does the following:

1. Expands domestic violence protections for survivors by categorizing witness tampering as a crime eligible for a domestic violence designation.
2. Links witness tampering closely to coercive and controlling behavior, which is recognized as a form of domestic violence under RCW 7.105.010.

Congratulations to WA summer law clerks Jerrald Callanta and James Taylor for their work on this matter. And, thank you to the 7 domestic violence organizations who joined our publication request.

Published Opinion

FVAP successfully requested publication of this case that will provide guidance throughout the state to trial courts deciding whether to remove children from the survivor parent solely because of the abuse endured. In re B.H. establishes that the mere fact a DV survivor parent who sought out (and was granted) a DV restraining order (DVRO) in the past does not mean that they or their children are being exposed to ongoing DV. The trial court in this case was wrong to find B.H. had not protected her kids from her abuser simply because she obtained a DVRO against him following a recent incident of abuse. 

Several published appellate cases have found that DV in the home supports a finding of dependency jurisdiction and removal of children from a DV survivor’s custody on the theory that they “failed to protect” the children from being exposed to DV. In re B.H. now gives critical guidance to trial courts on the “failure to protect” standard in dependency proceedings, clarifying a survivor’s continued contact with their abuser to co-parent after an incident of DV does not constitute a failure to protect provided there is no further abuse. This decision counters other current case law suggesting that separated parents alone does not eliminate the risk of DV, especially when ongoing interactions continue because of their children. (In re L.O. (2021) 67 Cal. App. 5th 227, 240). Survivors are often blamed for their abuse, and held to unreasonable standards for what they must do to keep their children safe., In re B.H. will help survivors argue that they can and should be allowed to safely parent their children.

Congratulations to FVAP attorneys Jennafer Dorfman Wagner, Arati Vasan, and FVAP law clerk, Alisa McKissick for championing this publication request. FVAP would also like to thank the 17 domestic violence organizations, legal aid organizations, public interest organizations, and academics who joined our publication request.

Published