DOMESTIC VIOLENCE

Question 1

DOMESTIC VIOLENCE

Know the legal standard for obtaining a DVPO.

Answer 1

In summary, it is up to the discretion of the court to evaluate the credibility of the allegations and evidence,
**which may include hearsay, when determining the existence of a present fear of the imminent risk of physical harm.

In light of the public interest in providing protection to victims, the courts are likely to err on the side of providing protection to an alleged victim unless there is significant prejudice shown to the perpetrator as a result of this finding and little evidence of further harm by the perpetrator.

Washington law says that domestic violence exists when a person:

• *Hits you, assaults you (including sexual assault),
• *or harms you physically in any way

OR

**Causes you to fear immediate physical harm or assault

The person causing the harm or threatening you must be:

• A family member AND/OR
• Someone you live with or lived with in the past AND/OR
• Someone with whom you currently have or have had a dating relationship

AND/OR

*Someone you have a child with

Question 2

Know when it may be possible to obtain an emergency DVPO in Ex Parte court with or without giving notice to the opposing party.

Answer 2

Where an application under this section alleges that irreparable injury could result from domestic violence if an order is not issued immediately without prior notice to the respondent,

the court may grant an ex parte temporary order for protection, pending a full hearing, and grant relief as the court deems proper -

** Note that allegations of past assaults are not required to meet the irreparable injury requirement. If the victim alleges that the perpetrator has recently threatened her with bodily injury, she will have met her burden of proof. RCW 26.50.070(2). **

Question 3

Define “domestic violence” per the statute.

Answer 3

“Domestic violence” means:

(a) Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members;
(b) sexual assault of one family or household member by another; or
(c) stalking as defined in RCW 9A.46.110 of one family or household member by another family or household member

Question 4

Define a “family or household member” in a domestic violence action.

Answer 4

Family and household members include the following:

(1) spouses;
(2) former spouses, domestic partners, former domestic partners;
(3) persons who have a child in common, regardless of whether they have been married or have lived together at any time;
(4) adult persons related by blood or marriage;
(5) adult persons who are presently residing together or who have resided together in the past;
(6) persons 16 years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship;
(7) persons 16 years of age or older with whom a person 16 years of age or older has or has had a dating relationship; and
(8) persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.

Persons involved in a dating relationship, which is defined by RCW 26.50.010(3), do not even need to reside in the same household to be covered by the statute. A “dating relationship” must be a relationship of a romantic nature. The court has discretion to consider the length of the relationship, the nature of the relationship, and the frequency of the interaction between the parties in determining whether the statute applies.

Question 5

Understand when one type of protective order might be preferable to the other.

Protection order

Answer 5

When a Chapter 26.50 RCW protection order is entered after the first full hearing, the order is generally for only one year and cannot be extended beyond this without another hearing if children are involved and the restrained person is restricted in contact with the children.

Although no financial relief as such can be provided by a protection order issued under Chapter 26.50 RCW, there are other methods of obtaining relief similar to that available under Chapters 26.09, 26.10 & 26.26 RCW.

“Essential personal effects” and a vehicle can be awarded pursuant to a protection order issued under Chapter 26.50 RCW. Although no order of child support or maintenance can be obtained under Chapter 26.50 RCW protection order action, the Division of Child Support can initiate an action for support independent of any court action.

See § 28.6. Moving forward with the Division of Child Support generally is a very slow process and the Division of Child Support cannot independently establish an obligation for maintenance.

Question 6

Understand when one type of protective order might be preferable to the other.

Restraining Order

Answer 6

A restraining order has two main advantages.

Under RCW 26.09.060, RCW 26.10.115, and RCW 26.26.130,

FIRST, broad relief is available; and support, maintenance, and other financial relief can be obtained.

Second, a restraining order entered in a Chapter 26.09, 26.10, or 26.26 proceeding can last longer than one year even if children are involved.

From WA Law Help:

Question 7

You may ask for a Restraining Order if you have filed a family law action such as?

Answer 7

divorce (dissolution)
paternity
legal separation
non-parental custody petition
petition for a parenting plan
a parenting plan modification

Question 8

A Restraining Order may?

Answer 8

Order the Respondent to stay away from you and the children and exclude him/her from your home, workplace, daycare, or school
Order the Respondent not to take the children out of the court’s jurisdiction
Add other restraints as appropriate

Question 9

WHEN DOES A Anti-Harassment Order APPLY?

Answer 9

This order applies when you have been seriously alarmed, annoyed, or harassed. Parties involved generally were not married or living together, and have no children together.

Question 10

In order to get an Anti-Harassment Order

You must prove that?

Answer 10

the other person’s conduct would cause any reasonable person to suffer serious emotional distress
AND
the other person’s conduct was intentional or willful and served no legitimate or legal purpose
This is different from the definition of domestic violence. It may not have the same penalties.

*** WE CAN’T DO *****

Question 11

What is a No-Contact Order?

Answer 11

Involves formally being charged with the crime in a criminal proceeding.

Question 12

Per WA Law Help (Chart); Restraining Order Who can get the order?

Answer 12

A party to a court action where the other party is the spouse or is the parent of a child in common.

Question 13

Restraining Order: Where do you get the order?

Answer 13

Superior Court

Question 14

Restraining Order: What can the order do?

Answer 14

Restrain abuser from:

1. entering a home;
2. harming or harassing a victim or any child;
3. contacting the victim or any child;
4. removing the child from the jurisdiction of the court;
5. disposing of property;
6. and can award temporary custody.

Question 15

Restraining Order: How long does it last?

Answer 15

Emergency:

14 days

Temporary:

Until final hearing.

Final hearing:

Permanent until changed by the court.

Question 16

Restraining Order: What if the order is violated?

Answer 16

After the abuser and police receive the order:

mandatory arrest if order so states, plus possible criminal and contempt charges.

Question 17

Domestic Violence Protection Order: Who can get the order?

Answer 17

Victims 16 or older who were physically abused or threatened with harm by a person with whom the victim has or had a:

• dating relationship,
• marital relationship,
• or a child in common.

** A parent or legal guardian must file on behalf of a minor under age 16**

Question 18

Domestic Violence Protection Order: How do you get the order?

Answer 18

Must file in county where victim lives or has fled to avoid abuse. Follow clerk’s instructions

Question 19

Domestic Violence Protection Order: Where do you get the order?

Answer 19

Emergency: Superior, Municipal, or District Court

Permanent: Superior, Municipal, or District Court

Question 20

Domestic Violence Protection Order: What can the order do?

Answer 20

Restrain abuser from:
entering a home;
threatening or harming victim and any child;
order abuser to leave shared home;
go to treatment/counseling;
award temporary custody.
Award the use of essential personal effects, including pets, and use of a vehicle

Question 21

Domestic Violence Protection Order: How long does it last?

Answer 21

Emergency:
14 days.

Final:
One year (renewable) if the order protects a child, permanent or for any fixed term if only protects an adult.

Question 22

Domestic Violence Protection Order: What if the order is violated?

Answer 22

After abuser and police receive the order;

mandatory arrest plus possible contempt and criminal charges.

Question 23

Domestic Violence No-Contact Order: Who can get the order?

Answer 23

Victims of abuse related to the abuser (as in protection order column) where the abuser is formally charged with domestic violence against the victim.

Question 24

Domestic Violence No-Contact Order: How do you get the order?

Answer 24

A victim can get this as part of criminal prosecution for domestic violence. The victim should contact the prosecutor to ask for the order.

Question 25

Domestic-Violence-No-Contact Order: Where do you get the order?

Answer 25

Municipal, District, or Superior Court.

Question 26

Domestic Violence No-Contact Order: What can the order do?

Answer 26

Restrain the abuser from any contact with the victim, including phone calls, email/text, or letters.

How long does it last?

At least one year and longer if the court orders. Usually, until trial and sentencing are concluded. Post-sentencing provisions last for up to the time the sentence and probation are over.

Question 27

Domestic Violence No-Contact Order: What if the order is violated?

Answer 27

After abuser and police receive the order;

mandatory arrest and a separate criminal charge.

Question 28

Are LLLT’s able to do an Anti-Harassment Order:

Answer 28

NO

Question 29

Anti-Harassment Order:

Who can get the order?

Answer 29

Victims of behavior aimed directly at them with the intent of seriously alarming, annoying, or harassing the victim without a legitimate purpose.

The abuser can be a stranger.

Question 30

Anti-Harassment Order:

How do you get the order?

Answer 30

Must file in the county where the victim lives or has fled to avoid abuse. Follow clerk’s instructions.

Question 31

Anti-Harassment Order:

Where do you get the order?

Answer 31

District or Superior Court.

Question 32

Anti-Harassment Order:

What can the order do?

Answer 32

Restrain the abuser from any contact with the victim; keeping the victim under surveillance;
or coming within a certain distance of the victim’s home or workplace.

Question 33

Anti-Harassment Order:

How long does it last?

Answer 33

Temporary:
14 days

Full:
Up to one year, renewable.

Question 34

Anti-Harassment Order:

What if the order is violated?

Answer 34

After the abuser and police receive the order;

possible arrest for a misdemeanor, plus possible contempt charges.

Question 35

Anti-Harassment No-Contact Order Who can get the order?

Answer 35

Victim of harassment
or the victim’s family or household member where the abuser is formally charged with a crime involving harassment (including stalking, threats, and other).

Question 36

Anti-Harassment No-Contact Order How do you get the order?

Answer 36

Obtained as part of criminal prosecution for the crime of harassment.

The victim should contact the prosecutor to ask for the order.

Question 37

Anti-Harassment No-Contact Order

Where do you get the order?

Answer 37

Municipal, District, or Superior Court.

Question 38

Anti-Harassment No-Contact Order What can the order do?

Answer 38

Restrain the abuser from any contact with the victim, including phone calls, email/text, or letters.

Question 39

Anti-Harassment No-Contact Order How long does it last?

Answer 39

The court can order permanent if the abuser is found guilty.

Question 40

Anti-Harassment No-Contact Order What if the order is violated?

Answer 40

After the abuser and police receive the order,

a violation is a misdemeanor for which abuser may be arrested.

All orders are confirmed by the police by entry into Washington State Criminal Information Computer (WACIC). This happens automatically when the court clerk sends the police a copy of any order signed by a judge/commissioner along with a Law Enforcement Information Sheet (LEIS). The court clerk will ask you to fill out the LEIS at the time you get your order.

Question 41

Know the process for terminating or modifying a domestic violence protection order (DVPO).
RCW 26.50.130

Answer 41

Order for protection — Modification or termination — Service — Transmittal.

(1) Upon a motion with notice to all parties and after a hearing, the court may modify the terms of an existing order for protection or may terminate an existing order for protection.
(2) A respondent’s motion to modify or terminate an order for protection that is permanent or issued for a fixed period exceeding two years must include a declaration setting forth facts supporting the requested order for termination or modification. The motion and declaration must be served according to subsection (7) of this section. The nonmoving parties to the proceeding may file opposing declarations. The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the declarations. If the court finds that the respondent established adequate cause, the court shall set a date for hearing the respondent’s motion.

(3) (a) The court may not terminate an order for protection that is permanent or issued for a fixed period exceeding two years upon a motion of the respondent unless the respondent proves by a preponderance of the evidence that there has been a substantial change in circumstances such that the respondent is not likely to resume acts of domestic violence against the petitioner or those persons protected by the protection order if the order is terminated. In a motion by the respondent for termination of an order for protection that is permanent or issued for a fixed period exceeding two years, the petitioner bears no burden of proving that he or she has a current reasonable fear of imminent harm by the respondent.
(b) For the purposes of this subsection, a court shall determine whether there has been a “substantial change in circumstances” by considering only factors which address whether the respondent is likely to commit future acts of domestic violence against the petitioner or those persons protected by the protection order.
(c) In determining whether there has been a substantial change in circumstances the court may consider the following unweighted factors, and no inference is to be drawn from the order in which the factors are listed:

(i) Whether the respondent has committed or threatened domestic violence, sexual assault, stalking, or other violent acts since the protection order was entered;
(ii) Whether the respondent has violated the terms of the protection order, and the time that has passed since the entry of the order;

(iii) Whether the respondent has exhibited suicidal ideation or attempts since the protection order was entered;
(iv) Whether the respondent has been convicted of criminal activity since the protection order was entered;
(v) Whether the respondent has either acknowledged responsibility for the acts of domestic violence that resulted in entry of the protection order or successfully completed domestic violence perpetrator treatment or counseling since the protection order was entered;
(vi) Whether the respondent has a continuing involvement with drug or alcohol abuse, if such abuse was a factor in the protection order;
(vii) Whether the petitioner consents to terminating the protection order, provided that consent is given voluntarily and knowingly;
(viii) Whether the respondent or petitioner has relocated to an area more distant from the other party, giving due consideration to the fact that acts of domestic violence may be committed from any distance;
(ix) Other factors relating to a substantial change in circumstances.
(d) In determining whether there has been a substantial change in circumstances, the court may not base its determination solely on:

(i) The fact that time has passed without a violation of the order; or
(ii) the fact that the respondent or petitioner has relocated to an area more distant from the other party.

(e) Regardless of whether there is a substantial change in circumstances, the court may decline to terminate a protection order if it finds that the acts of domestic violence that resulted in the issuance of the protection order were of such severity that the order should not be terminated.
(4) The court may not modify an order for protection that is permanent or issued for a fixed period exceeding two years upon a motion of the respondent unless the respondent proves by a preponderance of the evidence that the requested modification is warranted.

If the requested modification would reduce the duration of the protection order or would eliminate provisions in the protection order restraining the respondent from harassing, stalking, threatening, or committing other acts of domestic violence against the petitioner or the petitioner’s children or family or household members or other persons protected by the order, the court shall consider the factors in subsection (3)(c) of this section in determining whether the protection order should be modified. Upon a motion by the respondent for modification of an order for protection that is permanent or issued for a fixed period exceeding two years, the petitioner bears no burden of proving that he or she has a current reasonable fear of imminent harm by the respondent.

(5) Upon a motion by a petitioner, the court may modify or terminate an existing order for protection. The court shall hear the motion without an adequate cause hearing.
(6) A court may require the respondent to pay court costs and service fees, as established by the county or municipality incurring the expense and to pay the petitioner for costs incurred in responding to a motion to terminate or modify a protection order, including reasonable attorneys’ fees.

(7) Except as provided in RCW 26.50.085 and 26.50.123, a motion to modify or terminate an order for protection must be personally served on the nonmoving party not less than five court days prior to the hearing.
(a) If a moving party seeks to modify or terminate an order for protection that is permanent or issued for a fixed period exceeding two years, the sheriff of the county or the peace officers of the municipality in which the nonmoving party resides or a licensed process server shall serve the nonmoving party personally except when a petitioner is the moving party and elects to have the nonmoving party served by a private party.
(b) If the sheriff, municipal peace officer, or licensed process server cannot complete service upon the nonmoving party within ten days, the sheriff, municipal peace officer, or licensed process server shall notify the moving party. The moving party shall provide information sufficient to permit notification by the sheriff, municipal peace officer, or licensed process server.
(c) If timely personal service cannot be made, the court shall set a new hearing date and shall either require an additional attempt at obtaining personal service or permit service by publication as provided in RCW 26.50.085 or service by mail as provided in RCW 26.50.123.

(d) The court shall not require more than two attempts at obtaining personal service and shall permit service by publication or by mail unless the moving party requests additional time to attempt personal service.
(e) If the court permits service by publication or by mail, the court shall set the hearing date not later than twenty-four days from the date of the order permitting service by publication or by mail.

(8) Municipal police departments serving documents as required under this chapter may recover from a respondent ordered to pay fees under subsection (6) of this section the same fees for service and mileage authorized by RCW 36.18.040 to be collected by sheriffs.
10) [(9)] In any situation where an order is terminated or modified before its expiration date, the clerk of the court shall forward on or before the next judicial day a true copy of the modified order or the termination order to the appropriate law enforcement agency specified in the modified or termination order. Upon receipt of the order, the law enforcement agency shall promptly enter it into the law enforcement information system.

Question 42

Know the factors considered by the court in determining whether there has been a “substantial change in circumstances” to warrant modifying a protection order that is of two or more year’s duration.

Answer 42

See answer to #6 above:
(i) Whether the respondent has committed or threatened domestic violence, sexual assault, stalking, or other violent acts since the protection order was entered;

(ii) Whether the respondent has violated the terms of the protection order, and the time that has passed since the entry of the order;
(iii) Whether the respondent has exhibited suicidal ideation or attempts since the protection order was entered;
(iv) Whether the respondent has been convicted of criminal activity since the protection order was entered;
(v) Whether the respondent has either acknowledged responsibility for the acts of domestic violence that resulted in entry of the protection order or successfully completed domestic violence perpetrator treatment or counseling since the protection order was entered;
(vi) Whether the respondent has a continuing involvement with drug or alcohol abuse, if such abuse was a factor in the protection order;
(vii) Whether the petitioner consents to terminating the protection order, provided that consent is given voluntarily and knowingly;
(viii) Whether the respondent or petitioner has relocated to an area more distant from the other party, giving due consideration to the fact that acts of domestic violence may be committed from any distance;
(ix) Other factors relating to a substantial change in circumstances.

Question 43

Know which order takes precedence where there are conflicting orders in a family law matter:

a Protection Order OR A Criminal No-Contact Order

Answer 43

Criminal no contact order

Question 44

Know which order takes precedence where there are conflicting orders in a family law matter Parenting Plan v. Protection Order

Answer 44

Protection Order

Question 45

Know which order takes precedence where there are conflicting orders in a family law matter:
Temporary Order v. Criminal No-Contact Order

Answer 45

Criminal no Contact Order

Question 46

Know which order takes precedence where there are conflicting orders in a family law matter
Parenting Plan v. Dependency Order

Answer 46

Dependency Order

Question 47

Know when a DVPO may last longer than one year for a child.

Answer 47

A full protection order is effective for a fixed period, not to exceed one year if contact with the perpetrator’s children is addressed. After the first fixed period has passed, the court may reissue the order for another fixed period or may make the order permanent. If the relief sought does not affect the perpetrator’s contact with the individual’s minor children, then the initial one-year limitation may be modified. RCW 26.50.060(2).

If a protection order restrains the respondent from contacting the respondent’s minor children the restraint shall be for a fixed period not to exceed one year. This limitation is not applicable to orders for protection issued under chapters 26.09, 26.10, or 26.26 RCW. With regard to other relief, if the petitioner has petitioned for relief on his or her own behalf or on behalf of the petitioner’s family or household members or minor children, and the court finds that the respondent is likely to resume acts of domestic violence against the petitioner or the petitioner’s family or household members or minor children when the order expires, the court may either grant relief for a fixed period or enter a permanent order of protection.

If the petitioner has petitioned for relief on behalf of the respondent’s minor children, the court shall advise the petitioner that if the petitioner wants to continue protection for a period beyond one year the petitioner may either petition for renewal pursuant to the provisions of this chapter or may seek relief pursuant to the provisions of chapter 26.09 or 26.26 RCW.

Question 48

Know when a person may renew their protection order before it expires and how to do so

Answer 48

If the court grants an order for a fixed time period, the petitioner may apply for renewal of the order by filing a petition for renewal at any time within the three months before the order expires.

Question 49

Name the different types of restraining orders that exist and know the differences between each. Know which are within an LLLT’s scope of practice.

Answer 49

DVPO, anti-harassment, restraining orders,

Beyond scope:
anti-harassment orders, criminal no-contact orders, anti-stalking orders, and sexual assault protection orders in domestic violence actions;

Question 50

Know upon whom the burden of proof falls when seeking a renewal of a protection order

Answer 50

The court shall grant the petition for renewal unless the respondent proves by a preponderance of the evidence that the respondent will not resume acts of domestic violence against the petitioner or the petitioner’s children or family or household members when the order expires.

Question 51

Know the procedure for obtaining a protection order for a child in Washington if the child’s home state is not Washington

Answer 51

If the child is in imminent danger, he/she can be included in the petition and temporary order. ?

* verify this info*

Question 52

Know the standards for determining venue in an initial protection order proceeding.
26.50.020(6)

Answer 52

An action under this chapter shall be filed in the county or the municipality where the petitioner resides, unless the petitioner has left the residence or household to avoid abuse. In that case, the petitioner may bring an action in the county or municipality of the previous or the new household or residence.

Question 53

Know under what circumstances a person may obtain a protection order against someone who does not live in Washington State. RCW 26.50.240

Answer 53

Personal jurisdiction — Nonresident individuals.
(1) In a proceeding in which a petition for an order for protection under this chapter is sought, a court of this state may exercise personal jurisdiction over a nonresident individual if:

(a) The individual is personally served with a petition within this state;
(b) The individual submits to the jurisdiction of this state by consent, entering a general appearance, or filing a responsive document having the effect of waiving any objection to consent to personal jurisdiction;
(c) The act or acts of the individual or the individual’s agent giving rise to the petition or enforcement of an order for protection occurred within this state;
(d) (i) The act or acts of the individual or the individual’s agent giving rise to the petition or enforcement of an order for protection occurred outside this state and are part of an ongoing pattern of domestic violence or stalking that has an adverse effect on the petitioner or a member of the petitioner’s family or household and the petitioner resides in this state; or
(ii) As a result of acts of domestic violence or stalking, the petitioner or a member of the petitioner’s family or household has sought safety or protection in this state and currently resides in this state; or
(e) There is any other basis consistent with RCW 4.28.185 or with the Constitutions of this state and the United States.
(2) For jurisdiction to be exercised under subsection (1)(d)(i) or (ii) of this section, the individual must have communicated with the petitioner or a member of the petitioner’s family, directly or indirectly, or made known a threat to the safety of the petitioner or member of the petitioner’s family while the petitioner or family member resides in this state. For the purposes of subsection (1)(d)(i) or (ii) of this section, “communicated or made known” includes, but is not limited to, through the mail, telephonically, or a posting on an electronic communication site or medium. Communication on any electronic medium that is generally available to any individual residing in the state shall be sufficient to exercise jurisdiction under subsection (1)(d)(i) or (ii) of this section.
(3) For the purposes of this section, an act or acts that “occurred within this state” includes, but is not limited to, an oral or written statement made or published by a person outside of this state to any person in this state by means of the mail, interstate commerce, or foreign commerce. Oral or written statements sent by electronic mail or the internet are deemed to have “occurred within this state.”

Question 54

Understand that taking legal action can increase the risk of abuse in some domestic violence cases and the impact on the client.

Answer 54

DVPO cannot keep the abuser from actually committing harm – may impact the client by the perpetrator continuing the abuse, or manipulating the client to change their mind. Victims may think – once a DVPO has been put in place, that things are fine and request a dismissal of the order from the court.

Question 55

Know resources that a domestic violence survivor may access to get further help assessing risks and making plans that can increase chances of staying safe.

Answer 55

WASHINGTON STATE COALITION AGAINST DOMESTIC VIOLENCE, http://www.wscadv.org.

DEP’T OF SOC. & HEALTH SERVS., DOMESTIC VIOLENCE SERVICES, http://www.dshs.wa.gov/ca/dvservices/dvvicservbut1.asp

(DSHS Domestic Violence Program lists approved programs as well as additional information).

WASHINGTON VIOLENCE AGAINST WOMEN NETWORK, http://www.wavanet.org.

Explain how a Violence Against Women Act (VAWA) petition or U-Visa can impact a family law case.

See Family Law for Paralegals, pages 131 – 134 and Family Law Deskbook

Question 56

Know what provisions in landlord/tenant law protect survivors of domestic violence. RCW 59.18.575

Answer 56

Victim protection — Notice to landlord — Termination of rental agreement — Procedures.