Study Dec for LLLT Exam

Question 1

What will the Court consider in determining whether a Domestic Violence Protection Order is needed? Will a protection order be given? Why or why not? List at least four. (20%)

Answer 1

a. The court will consider the most recent act of violence or threat of violence, past incidence where Victoria experienced violence, was afraid of injury or where Dennis threatened to harm or kill Victoria

• Violence against or threats of violence towards children
• Stalking behavior by Dennis
• Medical treatment received for injuries
• Threats of suicide or suicidal behavior by Dennis
• Whether Dennis has threatened harm with firearms

Question 2

What constitutes domestic violence under WA law?

Answer 2

• Physical harm, bodily injury or assault
• Infliction of fear of imminent harm, bodily injury, or assault
• Sexual assault
• Stalking

Question 3

what are the legal and factual arguments for spousal
maintenance?
RCW 26.09.090

Answer 3

(a) The financial resources of the party seeking maintenance, including separate or community property apportioned to him or her, and his or her ability to meet his or her needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find employment appropriate to his or her skill, interests, style of life, and other attendant circumstances;

(c) The standard of living established during the marriage or domestic partnership;
(d) The duration of the marriage or domestic partnership;

(e) The age, physical and emotional condition, and financial obligations of the spouse or domestic partner seeking maintenance; and
(f) The ability of the spouse or domestic partner from whom maintenance is sought to meet his or her needs and financial obligations while meeting those of the spouse or domestic partner seeking maintenance.

Question 4

Notwithstanding scope limitations, when dealing with the business, what factors will the Court
use to divide the parties’ business? What are the possible outcomes? (20%)

Answer 4

• Value of the business
  o Who is more likely to continue the value
  o Result of division or sale on the value of the business
  o Value of the business without Dennis or Victoria
  o Goodwill

Question 5

A petition in a proceeding for dissolution of marriage or domestic partnership, legal separation, or for a declaration concerning the validity of a marriage or domestic partnership shall allege?

Answer 5

(a) The last known state of residence of each party, and if a party’s last known state of residence is Washington, the last known county of residence;
(b) The date and place of the marriage or, for domestic partnerships, the date of registration, and place of residence when the domestic partnership was registered;
(c) If the parties are separated the date on which the separation occurred;
(d) The names and ages of any child dependent upon either or both spouses or either or both domestic partners and whether the wife or domestic partner is pregnant;
(e) Any arrangements as to the residential schedule of, decision making for, dispute resolution for, and support of the children and the maintenance of a spouse or domestic partner;
(f) A statement specifying whether there is community or separate property owned by the parties to be disposed of;
(g) If the county has established a program under RCW 26.12.260, a statement affirming that the moving party met and conferred with the program prior to filing the petition;
(h) The relief sought.
(2) Either or both parties to the marriage or to the domestic partnership may initiate the proceeding.
(3) The petitioner shall complete and file with the petition a certificate under RCW 43.70.150 on the form provided by the department of health and the confidential information form under RCW 26.23.050.
(4) Nothing in this section shall be construed to limit or prohibit the ability of parties to obtain an appropriate emergency order

Question 6

What is the difference between a “major” and “minor” modification?

Answer 6

The word “modification” means a change. A major modification is a Petition to Change Parenting Plan asking for a big change to your current Parenting Plan. A minor modification asks for small changes.

Question 7

Will the court grant my petition to change the parenting plan automatically?

Answer 7

No. First, you must prove there is a good reason for the change. Before the judge will allow a change or even a trial, there will be a hearing called an Adequate Cause or Threshold hearing. If you cannot prove you have good reasons at that hearing, the judge will dismiss the case.

Question 8

How do I prove we need a major modification of the parenting plan?

Answer 8

If you prove there is a good reason at the first “Adequate Cause” hearing, the judge will schedule a trial date. If the other parent does not agree to the change, there will be a trial. At trial, the judge will decide whether to allow the modification.

At trial, you must prove there has been a big change (substantial change of circumstances) in the child’s or other parent’s life since the entry of the current Parenting Plan. That means one of these:

The parents and any custodian agree to the modification

The parent with custody under the current Parenting Plan has let the child live with the other parent for a substantial time

The place where the child is supposed to live under the current Parenting Plan is not safe for the child physically, mentally or emotionally. It would be more harmful to leave the child where she is than to move her to the other parent’s home

A court has held the other parent in contempt at least twice in three years for not following the Parenting Plan, or criminally convicted the other parent of custodial interference in the first or second degree

Nonparent custody cases only: you are the parent. You can file a major modification to show your situation has improved. You must also prove that it will not harm the child to be back in your custody.

Question 9

How do I prove we need a minor modification of my parenting plan?

Answer 9

The judge may order this if both of these are true:

there has been a substantial change of circumstances in either parent’s life or the child’s life

the change is in the child’s best interests

Question 10

What are some examples of a substantial change of circumstances?

Answer 10

A parent’s work schedule has changed.

A parent wants to take the child on a longer vacation than the current Parenting Plan allows. The child is older now. The child can spend a longer time away from the other parent.

*A minor modification can only change custody if one parent is moving with the child.

Question 11

What does a Parenting plan Cover?

Answer 11

Which parent the child will live with (custody)

How much time the child will spend with each parent

Which parent will make major decisions about the child

How the parents will work out major disagreements

Question 12

I am a stepparent. Do I pay support?

Answer 12

Yes. You have a legal duty to help support stepchildren until your divorce from the child’s parent is final or the court orders otherwise. RCW 26.16.205.

Question 13

What is gross income?

Answer 13

It is your total income before deductions for income tax, FICA, or other expenses. The Schedule instructions say what to include in your gross income on the child support worksheets.

*Some overtime income or income from a second job may NOT count if it is to provide for current family needs or pay off past relationship or child support debts. You must prove you will stop working overtime or the second job after paying off your debts. RCW 26.19.071(4)(i).

Question 14

How does the court impute income?

Answer 14

It uses this info in this order:

Full-time earnings at your current rate of pay.

Full-time earnings at your past average rate of pay.

Full-time earnings at a part rate of pay where info is incomplete or irregular.

Full-time earnings at minimum wage in the area where you live, in certain situations.

A court that has none of this info will use the median income for someone your age and gender in the U.S. RCW 26.19.071(6). The Child Support Schedule has a median income table.

Question 15

Will the court impute income to me?

Answer 15

Yes, if it believes you are voluntarily unemployed or underemployed. If you are not working or getting public assistance, usually the court will assume you could be working full time. You must prove otherwise.

Question 16

Could the court decide not to impute income?

Answer 16

Yes, if you cannot work due to disability. Get declarations from your doctor, psychologist, therapist, or other professional explaining why you cannot work and how long you will be unable to work. Proof that you get SSI, SSDI, or other disability benefit is strong evidence.

Question 17

Will the court find me voluntarily unemployed and impute income to me?

Answer 17

Yes, if

You cannot prove you have tried to get work. Examples of proof: job search records from the unemployment office; letters turning you down for jobs.

You are in school. You must prove you cannot really work until you finish school. Examples: a school program through WorkFirst; finishing your high school degree; taking English as a Second Language (ESL).

You stay home to care for children. There may be exceptions. Example: one of your children has special needs requiring more care.

Question 18

Will the court find I am voluntarily underemployed?

Answer 18

Maybe, if:

You are working part-time, fewer than 35 - 40 hours/week. The court will usually multiply your part-time income as if you were full-time.

*The court should not impute income if you cannot work full time because you are following a court-ordered plan to get your children back from foster care or CPS (a reunification plan). RCW 26.19.071(6).
You earn less than you used to. You are working full time now. Someone can prove you are earning less on purpose to lower your child support. RCW 26.19.071(6).

If you earn less for other reasons, such as changing careers, or you are not earning the most someone in your field could, the court should base support on your actual income.

Question 19

What if I get public assistance?

Answer 19

TANF, food stamps, and SSI do not count as income in calculating child support. RCW 26.19.071(4). You list public assistance at line 22f of the worksheets. You can ask the court to set the support you must pay at $0.

Question 20

I get TANF. I do not have to work. Will the court expect me to work anyway?

Answer 20

Most parents who get TANF must take part in WorkFirst. WAC 388-310-0200. If you do not have to, ask your DSHS caseworker for a declaration explaining why they are not making you work. See How to Write a Declaration in a Family Law Case at www.washingtonlawhelp.org.

Question 21

What if I am in jail or prison?

Answer 21

If you are also working in a correctional industry work program, at least fifteen percent of your gross wages goes to child support.

(This is not true if you are in a Class I work program.) RCW 72.09.111(1). The court can also base your child support obligation on any other money, assets, or property you own while in jail/prison. RCW 72.09.480.

Question 22

What if I cannot afford the support amount in the schedule?

Answer 22

If paying the basic support obligation would leave you with income below the federal poverty guidelines, the court should set support lower.

The court might order you to pay $50/month/child no matter what this does to your net income. RCW 26.19.065(2).

It can set support even lower if you prove $50/child is unjust or inappropriate in your case. The court must consider how much the children need the $50/child and how much it would burden you to pay it.

Examples: you are in prison and have no other assets; you get SSI. The court can set child support at $0.

Question 23

Is there a limit to the amount of support I should pay?

Answer 23

Yes. The support you pay all your biological children should be no more than 45% of your net income.

Each child is entitled to a proportional share. This applies only to the children in the case before the court.

The court can ignore this limit. It can look at if this limit would leave the custodial parent enough to meet the children’s basic needs, and if there are any involuntary limits on your earning capacity. RCW 26.19.065(1).

(The discussion of voluntary unemployment, above, has examples.)

Question 24

The Child Support Schedule describes situations where the court can grant a deviation: List 4

Answer 24

You support other children. RCW 26.19.075(1)(e).

You must prove the children either live with you OR you must and do pay support for other children.

The court looks at your spouse’s/partner’s income, any child support or benefits the other children get, and both households total circumstances.

1. You split custody
2. or have lots of visitation.
3. The children are not on public assistance.
4. You have much more than every other weekend and a mid-week visit.
5. You must prove how much more you spend on the child when you are together, and any savings to the other parent.
6. You are not likely to make as much in the future. RCW 26.19.075(1)(b).
   
   • You must include income that is not guaranteed (examples: bonuses and overtime) in your gross income when they calculate your payment.
     * ****Get declarations from your employer or others showing the income will not be available.

One parent is very wealthy.

One parent pays costs for court-ordered services to reunify with the children.

A child has a disability or special needs not covered by insurance. RCW 26.19.075(1)(c)(iii) & (iv). The parent needing these expenses must provide doctors’ letters, medical bills, and receipts.

Question 25

I asked to pay less support. Will the court grant my request?

Answer 25

No, if:

It would mean the custodial parent’s household has much less money.

The custodial parent would not have enough to meet the children’s basic needs. RCW 26.19.075(1)(d).

Question 26

What if the basic support amount does not cover all the children’s expenses?

Answer 26

The court can order parents to share the children’s expenses for uninsured medical expenses, premiums, daycare, education, and long-distance transportation. RCW 26.19.080(3).

Usually, you each pay a share using the child support worksheets.

Example: To find out your share of daycare, multiply the total amount of daycare per month by the percentage under your column on line 6 of the child support worksheets.

*Orthodontic care, such as braces, and some psychological care (such as special classes or activities the child goes to for help with an emotional problem) may not fall into this category.

Put these expenses in your child support order instead. Example: You add a paragraph to the order saying, “The paying parent will pay ___% of the child’s orthodontic care directly to the orthodontist.”

Question 27

What if my child needs support for college? What does the court consider to make its decision?

Answer 27

The court may order post-secondary support in one of these situations:

For college or vocational school.

The child will still be dependent on the parents after high school graduation. Example: the child has a disability.

The court must consider:

the child’s age and needs

the parents’ expectations for their children when they were together

the child’s prospects, desires, aptitudes, abilities, or disabilities

what the post-secondary education is

the parents’ level of education, the standard of living, and current and future resources

how much support the child would have gotten had the parents stayed together

RCW 26.19.090(2).

Question 28

What is the legal definition of domestic violence?

Answer 28

Washington law says domestic violence happens when someone does one of these:

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

Causes you to fear immediate physical harm or assault

Stalks you

The person causing the harm or threatening is, generally, a family member, or a current or former intimate partner. Read Domestic Violence: Can the Legal System Help Protect Me for the full definition.

Question 29

What is a DVPO?

Answer 29

It is a civil court order (an order you request), issued by a judge, meant to protect you from another person.

Question 30

What needs to be true in order to file a DVPO?

Answer 30

you are experiencing physical harm, bodily injury, assault, stalking, or sexual assault

you fear imminent physical harm or bodily injury by a family or household member

Question 31

What are the benefits of filing a Temp. Family Law Order/Restraining Order?

Answer 31

If you need:

Temporary parenting plan

Temporary child support order

Temporary spousal support order

Temporary restraining order

Temporary order regarding possession of a home

Temporary order regarding payment of bills

Question 32

RELOCATION:

I do not have a parenting plan. Can we move?

Answer 32

If there is no existing order regarding residential time or visitation with your child, the law does not apply. You may move.

Just be aware of custodial interference laws and UCCJA (jurisdiction) laws.

Question 33

UCCJEA

Answer 33

The UCCJEA is the law controlling which court has jurisdiction (authority) to make custody and visitation decisions about your child. It says that, in most cases, if a parent moves a child out of state, the old state continues to be the child’s “home state” for six months after the move as long as one parent still lives there.

Any court action within the first six months
after relocation will probably need to take place in the old state. If you have no custody or visitation order, and the other parent stays in Washington and files a court case, you must respond and be ready to return to Washington.

Question 34

Relocating within the Same School District

Answer 34

If you plan to move within the same school district where the child currently lives, you must provide actual notice to every person entitled to visitation with your child of:

• your new address
• your phone number
• any new daycare provider or school

The notice may be in any form. You can tell the other parent on the phone, in person, by email, or hand them a note.

It is best to write the other parent a letter about the move and keep a copy for your records. Send the letter by certified mail or any form of mail that provides proof of delivery.

Question 35

Relocating Outside of Your School District

Answer 35

If you are the custodial parent under the parenting plan and you want to move with your child outside of the school district you currently live in, you must give the noncustodial parent and every other person entitled to visitation with the child notice of your intent to move.

Generally, you must give notice at least 60 days before the date of your intended move in one of these ways:

• Through personal service (hand delivery by a third party who signs a statement that they delivered the notice to the other parent).

• By any form of mail that requires a return receipt. Use our Service by Certified Mail or
Publication packet

Example 1: 60-day Notice - You plan to move on September 1. You must give the other parent notice on or before July 2.

 Example 2: You give relocation notice on July 1 that you plan to move to another city. You do not have the exact new address at the time of notice. You do not
include it.

On July 15, you get a new address. You must write the court and everyone else entitled to residential time or visitation a letter giving your new address. This shows the court you are following the law in “good faith.” This will help when the court is deciding whether to allow the relocation.

Question 36

RELOCATION:

Exceptions to the 60-day Notice Requirement

Answer 36

If you want to move with the child but do not have 60 days in which to give notice before moving,

• you must give notice within five days after you actually know you are moving.

Be ready to show both of these:

• you could not reasonably have known about the move in time to give 60 days’ notice
• you cannot reasonably delay the move

 Example: On November 1, you get a notice that the military is transferring you to a new location on November 30. You must give notice by November 6.

Question 37

You are relocating because you are entering a domestic violence shelter:

Answer 37

You may delay the notice for 21 days. The shelter is not required to disclose any confidential information about itself.

 Example: You enter a DV shelter on July 1. You do not have to give notice until July 27 (21 days plus the five days we explain above).

You do not need to include the confidential address.

Question 38

RELOCATION:
You are taking part in the Address Confidentiality Program or have a court order permitting you to withhold specific information

Answer 38

You can leave that information out of your notice.

Question 39

RELOCATION: You are moving to avoid a clear, immediate, and unreasonable risk to your health or safety or the health or safety of the child:

Answer 39

: You may delay notice for 21 days (plus the five days explained above). This is the same as if you were moving to a DV shelter.

If you believe your health or safety (or your child’s) would be at risk by the release of information the notice requires, you may request an ex parte hearing with the court1 to have that part of the notice waived (excused).

You do not give the other party any notice of an ex parte hearing, or you give very little notice. Usually this hearing is the same day you request it.

After this hearing, the court may waive some or all of the required notice information. You may not have to give notice at all.

You may not have to give all the details normally required in your notice. Or the court may provide some other relief that meets your needs and your child’s.

Question 40

RELOCATION: Where do I file my notice?

Answer 40

You should file your notice in the same county where you were divorced, or where the court entered the parenting plan, if possible.

If you file in a different county, your current parenting plan will first have to be registered as a foreign order in that county and then assigned a new case number for that county.

Question 41

RELOCATION: What happens if I do not give notice?

Answer 41

Failure to give the proper Notice of Intent to Move is grounds for sanctions (punishment) by the court. In some cases, this can mean contempt of court. The court may put a penalty on you, including:

• ordering the child returned to your old location in Washington (or to the other parent’s home)
• ordering you to pay the other person’s attorney’s fees and costs
• jail time
• fines
• some other type of punishment

 A judge who finds you in contempt more than once in a three-year period may award the other parent custody.

Question 42

RELOCATION;I have given notice. When may I move?

Answer 42

Usually you should wait until sixty days have passed after giving notice. You do not have to if you fall under one of the exceptions above.

In general:

• You may not move the child during the first thirty days without a court order, unless you can prove that the other parent will not object.
• If the other parent does not file an objection within thirty days, you may then go ahead and move.
• If the other parent does file an objection, wait until the judge has ruled on that objection OR you get a court order allowing you to move on a temporary basis.

(See discussion below on Temporary Orders.)

The person who objects to the relocation must schedule a hearing within fifteen days. She must file a motion to keep you from moving if they want to stop your move temporarily before the court makes its final decision.

Even if the objecting person does not ask for a
restraining order to stop you, think carefully about moving before the court makes a final decision.

If you cannot follow the existing parenting plan after you move, the court will likely find you in contempt. (See above.)

Even if you could follow the parenting plan after the move, the judge may think it was in “bad faith” to move after the other parent objected. You may also have to move your child twice if the court’s final order does not
allow you to permanently move the child.

Question 43

RELOCATION:

I am a noncustodial parent. How do I object?

Answer 43

If you have gotten notice of a proposed relocation outside of the current school district and you do not want your child to move, you must file an objection within 30 days of receiving that notice.

You can also object by filing any of these:

• a petition to change the parenting plan
• some other court action, such as a motion for a temporary family law order, that
would provide grounds for relief

Question 44

RELOCATION:

I am a grandparent or other relative. Can I try to stop the move?

Answer 44

Probably not. A court can stop a move when the only objection is from a nonparent only when both of these are true:

• that nonparent has court-ordered visitation rights
• the nonparent has served as the child’s custodian for a substantial period during the past three years

Question 45

RELOCATION: Can I get a court order before the hearing on relocation
happens?

Answer 45

If you have objected to relocation and are waiting for a hearing, ask for:

** a temporary order stopping the move

** OR ordering the child’s return if the move has already happened.

If you have given notice of your intended relocation, you may ask for a:

*** temporary order approving the intended move.

The court will grant the order, before a final hearing, if it finds both of these are true:

• You gave the required notice in a timely manner OR there is enough reason to enter a temporary order in the absence of compliance with notice requirements
• after examining evidence presented by both parties, it is likely the court would approve the intended relocation of the child

Question 46

RELOCATION: FORMS

Answer 46

Notice of Intent to Move with Children (Relocation)- FL Relocate 701

Proof of Personal Service FL All Family 101

Response to Objection about Moving with Children
and Petition about Changing a Parenting/Custody
Order (Relocation) FL Relocate 722

Motion for Temporary Order Allowing Move with
Children (Relocation)
FL Relocate 726
Temporary Order about Moving with Children
(Relocation) FL Relocate 728

Attachment: Summary of the law about moving with
children

Other forms you may need:

Motion to Limit Notice of Intent to Move with Children
(Ex Parte) FL Relocate 702

Motion for Immediate Order Allowing Move with
Children – Before Objection Deadline (Ex Parte
Relocation) FL Relocate 704

Immediate Order on Motion to Move with Children –
Before Objection Deadline (Ex Parte Relocation)
FL Relocate 705

Ex Parte Motion for Final Order Changing Parenting
Plan – No Objection to Moving with Children (Relocation) FL Relocate 706

Ex Parte Order on Motion for Final Order Changing
Parenting Plan – Moving with Children (Relocation)
FL Relocate 707

Temporary Parenting Plan.

Question 47

WHAT IS THE Basis for determination THAT THE COURT USES IN DETERMINING THE APPROVAL OR DENIAL IN A RELOCATION MATTER?

Answer 47

Basis for determination.

The person proposing to relocate with the child shall provide his or her reasons for the intended relocation.

There is a rebuttable presumption that the intended relocation of the child will be permitted.

A person entitled to object to the intended relocation of the child may rebut the presumption by demonstrating that the detrimental effect of the relocation outweighs the benefit of the change to the child and the relocating person, based upon the following factors.

The factors listed in this section are not weighted. No inference is to be drawn from the order in which the following factors are listed:

(1) The relative strength, nature, quality, the extent of involvement, and stability of the child’s relationship with each parent, siblings, and other significant persons in the child’s life;
(2) Prior agreements of the parties;
(3) Whether disrupting the contact between the child and the person seeking relocation would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation;
(4) Whether either parent or a person entitled to residential time with the child is subject to limitations under RCW 26.09.191;
(5) The reasons of each person for seeking or opposing the relocation and the good faith of each of the parties in requesting or opposing the relocation;
(6) The age, developmental stage, and needs of the child, and the likely impact the relocation or its prevention will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child;
(7) The quality of life, resources, and opportunities available to the child and to the relocating party in the current and proposed geographic locations;
(8) The availability of alternative arrangements to foster and continue the child’s relationship with and access to the other parent;
(9) The alternatives to relocation and whether it is feasible and desirable for the other party to relocate also;
(10) The financial impact and logistics of the relocation or its prevention; and
(11) For a temporary order, the amount of time before a final decision can be made at trial.