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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

       FVAP was successful in requesting publication of In re A.P. et al. which establishes that violations of a temporary restraining order is abuse when requesting a juvenile court domestic violence restraining order, just as it is when requesting a family law domestic violence restraining order. 

• Acts that violate a temporary restraining order (“TRO”) are considered abuse under Family Code section 6203, subdivision (a)(4). This principle was affirmed in the case N.T. v. H.T. and is crucial in Section 213.5 proceedings.
• Physical Separation of the Parties Does Not Justify Denying a Restraining Order: The court in In re A.P. emphasized that physical separation of parties does not justify denying a restraining order. This case sets a precedent that protection should not be substituted by physical distance. 
• Non-CLETS (not registered with law enforcement) Stay Away Orders Are Inadequate: In re A.P. clarifies that non-CLETS stay-away orders are insufficient protection for domestic violence survivors. It provides valuable guidance on the importance of distinguishing between “stay-away” orders and Domestic Violence Restraining Orders (DVROs).

Our publication request was joined by 31 organizations and academics serving survivors, families, and children in Los Angeles County and beyond, including Bay Area Legal Aid; Calegislation; California Protective Parents Association; Center for Community Solutions; Child Abuse Forensic Institute; Coalition of California Welfare Rights Organizations; Community Beyond Violence; Community Legal Aid SoCal; Disability Rights Legal Center; Family Violence Law Center; Greater Bakersfield Legal Assistance; Harriett Buhai Center for Family Law; Inland Empire Latino Lawyers Association, Inc.; Lawyers’ Committee for Civil Rights of the San Francisco Bay Area; Legal Aid Foundation of Los Angeles; Legal Aid of Sonoma County; Los Angeles Center for Law and Justice; National Family Violence Law Center; Pro Bono Project of Silicon Valley; Project Sanctuary; Public Counsel; Public Interest Law Project; Public Law Center; Queen’s Bench Bar Association; Stanislaus Family Justice Center; Stopping Domestic Violence; Su Casa – Ending Domestic Violence; Women’s Center-High Desert, Inc.; Youth Law Center; YWCA Silicon Valley, and; Professor Margaret Drew.

Publication of Dependency Case (No. B327857)