Cases You Can Use – Washington

In Re Wagner v. Zottolo (2021)__ Wn.App.__ The Court of Appeals ruled that child testimony should not be excluded based on a blanket prohibition against allowing child witnesses in family law proceedings without considering all the circumstances, including whether children have witnessed abuse. The decision also confirms that evidence about domestic violence is relevant, whether or not it is related to the children in the parenting plan trial. A parent’s history of domestic violence, child sexual abuse, and sexual assault that results in pregnancy must be considered. (FVAP successfully obtained publication of this case in partnership with 3 other organizations)

Wagner v. Zottolo, 18 Wn. App. 2d 588, 496 P.3d 742 (2021)

Colchester v. Lazaro (2021)_9th Cir._

FVAP joined nine other national and Washington organizations as amici in support of a survivor and her child who had fled to the United States because of domestic violence.  The Father, who lives in Spain, was given sole custody of the child. When Mother was visiting the child in Spain she observed aggressive behavior and testified about several detailed instances of child abuse by Father. Mother fled with the child to Washington state. Father filed a petition under the Hague Convention to have the child returned to him in Spain. In her defense, Mother argued that returning the child to Father would present a “grave risk” of psychological or physical harm to the child. Mother asked for a forensic psychologist to examine the child and give an expert opinion about abuse and harm to the child. The trial court did not allow it and granted the Father’s request to return the child to him in Spain. Mother appealed. The 9th Circuit Court of Appeals said that there should be a balance between deciding these types of cases quickly and allowing the parent to gather evidence in support of their defense. This can include expert testimony, but not always. Here, the trial court said there would be no “discovery” of evidence and did not support its reasons why.  The trial court had not allowed Mother the opportunity to make her case that the child was at grave risk of harm if returned to her Father. Also, the trial court did not independently support its reasons for granting the Father’s request, which is required.  The order was vacated, and Mother was given a new trial and the opportunity to have a psychological expert testify.

Colchester v. Lazaro, 16 F.4th 712 (2021) 

Stocks v. Porter (2022) __ Wn.App. __ – In a published opinion, the Washington Court of Appeals agreed with Christy — the trial court should not have ordered joint decision-making in her parenting plan because the trial court had found the other party had a history of domestic violence. The trial court mistakenly reasoned that because the other party’s convictions were years in the past, that it had discretion not to follow the plain language of the statute. RCW 26.09.191(1) does not give the court discretion to deviate from the mandatory limitations on decision-making and dispute resolution. The Court of Appeals reversed and remanding to the trial court for entry of a finding of a history of domestic violence, and a parenting plan that follows the statute. Early in the case, our client also asked the appellate court for an Order of Indigency to cover the costs of the appeal, which includes a transcript quoted at nearly $10,000. This very rare motion was granted by the Washington Supreme Court.

In re Marriage of Mishko, 23 Wn. App. 571, 519 P.3d 240 (2022)

This case may help someone seeking restrictions in parenting plans, such as sole decision making, based on the other parent’s history of domestic violence. This case may also help someone seeking a continuing restraining order in their family law case. The Court of Appeals said there was “substantial evidence” that Father had a history of domestic violence. The appeals court was referring to testimony from both the Father’s prior partner and Mother about verbal and emotional abuse, physical threats, and physical violence, and previous restraining orders and court findings of abuse. The opinion explains the trial court makes a mistake if it does not make a finding of a history of acts of domestic violence when there is substantial evidence of domestic violence. Also, the trial court made a mistake by not considering Mother’s request for the continuing restraining order even though there was a lot of evidence of Father’s domestic violence.

Copy of published case can be found here: https://advance.lexis.com/documentprint/documentprintclick/?pdmfid=1000516&crid=850dab95-945d-4900-948f-bbbf8bc038a6&ecomp=m3vckkk&prid=6e048520-fb27-4456-9bed-4ec996c28414

Davis v. Arledge, 531 P.3d 792 (2023) 

This case supports the constitutionality of GPS electronic monitoring as a prevention tool to enforce a domestic violence protection order (DVPO). This case may also help someone seeking a DVPO where there is a pattern of stalking and harassing behavior.

Summary of the Case: Davis, a Washington state representative, asked for a DVPO against her former partner, Arledge, because she feared for her life. She cited his stalking behavior, past suicide threats, substance use disorder, and access to firearms. After Davis ended their relationship and requested no contact, Arledge, a lobbyist in Olympia, contacted Davis more than a dozen times, including using a different email address, and by disguising his phone number. He sent a public email accusing her of professional retaliation. Arledge denied these behaviors and stated his complaint was protected under the First Amendment because Davis is an elected official. Before the first hearing, Arledge attempted suicide. The trial court issued a 5-year DVPO, with no contact or coming within 1000 feet of her residence and workplace (with exceptions for work) and ordered GPS electronic monitoring with victim notification for one year. Arledge appealed, arguing the GPS monitoring was unconstitutional because it violated his right to privacy. He also argued that his speech was protected by the First Amendment. The Court of Appeals upheld both the DVPO and the GPS electronic monitoring. The court agreed with Davis that Arledge showed all significant indicators for high-risk intimate partner homicide. While acknowledging the intrusive nature of GPS monitoring, the court found that monitoring was justifiable because it would only be used if Arledge was violating the DVPO. The court recognized the legislature’s strong interest in curbing domestic violence and allowed methods like GPS monitoring for prevention. Additionally, the court affirmed the DVPO by agreeing that attempts to contact someone after they’ve explicitly refused communication as evidence of stalking. The pattern of behavior through emails demonstrated an intent to intimidate and that Davis’ fear was reasonable.

Protecting Individuals from Racial Bias in the Court System In re Dependency of Q.S., 22 Wn.App.2d 586, 515 P.3d 978 (2022)

This case may help someone who has experienced racial bias within the civil legal system generally and the “child protection” or dependency legal system more specifically.

The State of Washington’s Department of Children, Youth, and Families (DCYF) filed a case to declare a Father’s two sons be removed from him and placed in foster care. During the trial, the Father was stereotyped as an angry black man, and this stereotype was used against him. The trial court decided the children were “dependent” and ordered that they be placed in foster care and taken from their Father. The Father appealed. The Court of Appeals decided the evidence did not support taking the children from the custody of their Father. The evidence did not show that the Father’s parenting was dangerous to the children’s development. The only time “issues” with the Father appeared was when DCYF interacted with him. The Court of Appeals discussed that a parent’s mental illness does not, by itself, prove that a parent is unfit or incapable. The trial court wrongly dismissed the testimony related to racial bias when it is their responsibility to “confront[] the possible racial bias in the child dependency system.” The Court of Appeals also held that the Washington Supreme Court’s June 2020 letter’s message about the overrepresentation of Black Americans in every stage of criminal and juvenile legal systems should also be applied to the Washington State child dependency system (i.e. foster care). Black children are more likely to be in foster care, less likely to be reunified with their families, more likely to be placed in group care, and become involved in the criminal justice system. The Court of Appeals overturned the dependency order and ordered the return of the sons to the Father’s care and custody.