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)

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. 

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.

Mishko v. Kerr (2022) __ Wn.App. __ – After a trial to modify a parenting plan, the trial court entered limitations against the opposing party (“OP”) finding that he had engaged in “abusive use of conflict.”  The court found that communications toward the mother were abusive as well as cited several behaviors aimed at the minor child.  The trial court noted OP had completed a domestic violence treatment program.  The trial court also heard testimony about OP’s past domestic violence and admitted into evidence a current Domestic Violence Protection Order against OP (filed by a different intimate partner and mother of OP’s other child).  However, no ultimate findings of “a history of domestic violence” were entered into the final parenting plan, and the trial court granted joint decision-making to the parties.  The unambiguous statutory standard is that “a history of acts of domestic violence” mandates sole decision-making to the parent without a domestic violence finding. The court agreed with FVAP that the trial court did not enter restrictions that limited joint-decision making despite substantial evidence of a history of domestic violence presented at the hearing and instructed on remand that the trial court must consider the request for a restraining order in light of that evidence.