The Federal Way News ran two articles about murder and mania in our fair city, both cases showing graphically how difficult it is to control domestic violence, even of the most brutal and open kind.
In this blog post, we'll look at these two cases, identify the legal options currently available for victims, and then discuss two bills currently under deliberation at the state legislature.
Case #1: Rodney Hill and a female friend had been harassed by Matthew Bolar, including death threats. Hill's friend was a former girlfriend of Bolar. Bolar had a criminal record for drugs, robbery, bail jumping, and violation of a no-contact order. He had also assaulted the ex-girlfriend at gunpoint three times within the last month.
Hill and his friend had moved in with a Federal Way homeowner for safety. The friend had gotten a court order prohibiting Bolar from making contact with her (an Order for Protection). Violation of this order would allow police to arrest Bolar.
Unfortunately, Bolar somehow learned about the location of his ex-girlfriend, bullied his way into the house with a male friend, and found the girlfriend and Hill hiding in a room in the house. While his male friend held Hill down, Bolar shot Hill at point blank range. He then tried to shoot the ex-girlfriend, but the gun jammed. Bolar fled the scene with his male companion.
Case #2: In the second case, Reed Huska went to his girlfriend's apartment and got into an argument with another man, who was babysitting the girlfriend's female roommate's child. The argument escalated, and the other man fatally stabbed Huska with a steak knife.
The first case involved an attack by a known abuser on a known victim, after prior involvement by the courts and police. The second case was an abrupt and apparently unforeseeable stabbing. In both cases the law seemed powerless to prevent tragedy.
Makes you wonder, "What can be done?" Or even, "Can anything be done?" Will we ever find a cure for the plague of domestic violence?
Here are the types of court orders currently available for victims:
An antiharassment order is a civil proceeding filed by the victim asking for court assistance after being seriously alarmed, annoyed or harassed by conduct which serves no lawful purpose. It lasts 14 days, but can be extended to one year. It can be used to prevent harassment which occurs outside of the victim's household.
A restraining order can be obtained if the abuser is married to, or has a child with, the victim. It can be obtained in the course of a divorce, legal separation, custody suit, or paternity case.
A no-contact order can be obtained in any criminal matter involving domestic violence. The violence must be reported to the police, and a county prosecutor can obtain the order.
An order for protection can be gotten by anyone who has been the victim of domestic violence, and who may in the future be abused by a family or household member.
The Washington State Domestic Violence Hotline (1-800-562-6025) provides statewide information and assistance, including referrals to other agencies.
We all have an obligation to do something. Domestic violence is killing us.
Monday, March 22, 2010
Domestic Violence
What would you do if a friend of yours started confiding in you about terrible living conditions at home? She starts out by telling you that she feels horribly misused. Her husband treats her like a servant, and controls all of the family finances. Since your friend doesn't have a job, her husband is able to totally control the family income, budget and payments. He doles out money to her – if she does what he says. Sometimes she has to ask for money for personal or family necessities.
As time goes on, your friend reveals more. Her husband is making her feel like a terrible parent, and openly criticizes any attempt on her part to guide or discipline the children. He frequently gets very angry and threatens to divorce her, kick her out of the house, and take the children away from her. He blames her for everything that goes wrong, even things that he clearly is responsible for. He calls her stupid and crazy and she's beginning to believe it.
As time goes on, your friend reveals that she feels terribly isolated. Her husband has limited her contact with friends and relatives and is extremely jealous of her friendships.
You increasingly feel that there is something you should do but she begs you not to tell anyone else. Eventually you realize that you may be the only person she is talking to.
Finally, she reveals that her husband has gone beyond intimidation and emotional rages. He has actually shoved and hit her, and has threatened to hurt her again.
Where can your friend turn in a situation like this? How do you refer her to someone who can give her confidential advice and assistance?
Last week I wrote about different ways that a court can help the victim of domestic violence which can be physical, sexual, psychological, or emotional in nature. Today, we'll discuss agencies and advocacy groups. This information is not comprehensive in nature; additional information can be obtained from the groups listed here.
King County. The King County Prosecutor has a domestic violence advocacy unit located in the King County Courthouse in Seattle (206/296-9669). This unit provides advocates for victims of domestic violence to help them get or modify protective orders through the court. Similar units exist at the King County Regional Justice Center in Kent and the district courts in various cities throughout South King County. Additional information can be obtained by calling the Court Legal Advocates for the district court: Aukeen (206/296-7768); Federal Way (206/296-7892); Kent (206/205-7455); Renton (206/296-9651); and Southwest King County (206/296-8876).
Washington State. Statewide information and assistance can be obtained through the Washington State Domestic Violence Hotline (1-800-562-6025). You can be helped to keep you home, work or school address secret by calling the Washington State Address Confidentiality Program (1-800-822-1065).
Here are some of the agencies and groups available: DAWN or Domestic Abuse Women's Network of Kent (253/656-8423); New Beginnings, for confidential shelter and residence (206/783-28848), or Katherine Boothhouse (206/324-4943); Seattle Rape Relief (206/325-5531); Northwest Women's Law Center (206/682-9552); Cross-Cultural Family Law Clinic (can be contacted through the Northwest Women's Law Center); Seattle King County Bar Association Lawyer Referral Service (206/623-2551).
A very active private agency in the South King County area is DAWN, mentioned above. They have free legal clinics once a week which discuss many legal issues faced by the victims of abuse. Topics covered by their legal clinic include divorce or legal separation, custody of children, child support, payment of debts, and establishing paternity. DAWN also has a 24-hour crisis line (425/656-7867), a confidential shelter, and support groups with free child care.
As time goes on, your friend reveals more. Her husband is making her feel like a terrible parent, and openly criticizes any attempt on her part to guide or discipline the children. He frequently gets very angry and threatens to divorce her, kick her out of the house, and take the children away from her. He blames her for everything that goes wrong, even things that he clearly is responsible for. He calls her stupid and crazy and she's beginning to believe it.
As time goes on, your friend reveals that she feels terribly isolated. Her husband has limited her contact with friends and relatives and is extremely jealous of her friendships.
You increasingly feel that there is something you should do but she begs you not to tell anyone else. Eventually you realize that you may be the only person she is talking to.
Finally, she reveals that her husband has gone beyond intimidation and emotional rages. He has actually shoved and hit her, and has threatened to hurt her again.
Where can your friend turn in a situation like this? How do you refer her to someone who can give her confidential advice and assistance?
Last week I wrote about different ways that a court can help the victim of domestic violence which can be physical, sexual, psychological, or emotional in nature. Today, we'll discuss agencies and advocacy groups. This information is not comprehensive in nature; additional information can be obtained from the groups listed here.
King County. The King County Prosecutor has a domestic violence advocacy unit located in the King County Courthouse in Seattle (206/296-9669). This unit provides advocates for victims of domestic violence to help them get or modify protective orders through the court. Similar units exist at the King County Regional Justice Center in Kent and the district courts in various cities throughout South King County. Additional information can be obtained by calling the Court Legal Advocates for the district court: Aukeen (206/296-7768); Federal Way (206/296-7892); Kent (206/205-7455); Renton (206/296-9651); and Southwest King County (206/296-8876).
Washington State. Statewide information and assistance can be obtained through the Washington State Domestic Violence Hotline (1-800-562-6025). You can be helped to keep you home, work or school address secret by calling the Washington State Address Confidentiality Program (1-800-822-1065).
Here are some of the agencies and groups available: DAWN or Domestic Abuse Women's Network of Kent (253/656-8423); New Beginnings, for confidential shelter and residence (206/783-28848), or Katherine Boothhouse (206/324-4943); Seattle Rape Relief (206/325-5531); Northwest Women's Law Center (206/682-9552); Cross-Cultural Family Law Clinic (can be contacted through the Northwest Women's Law Center); Seattle King County Bar Association Lawyer Referral Service (206/623-2551).
A very active private agency in the South King County area is DAWN, mentioned above. They have free legal clinics once a week which discuss many legal issues faced by the victims of abuse. Topics covered by their legal clinic include divorce or legal separation, custody of children, child support, payment of debts, and establishing paternity. DAWN also has a 24-hour crisis line (425/656-7867), a confidential shelter, and support groups with free child care.
Tuesday, March 16, 2010
The Ten Commandments of Child Support
You're a responsible, loving, divorced parent. Your children are in the primary custody of your ex spouse. You work hard and pay your child support. One day you open your mail and you get an unexpected love letter from the State Division of Child Support. "Excuse us," says the notice, "but you owe $14,000 in back child support. You also owe current support of $900 per month. But don't worry, if you should miss a payment, we'll take half your paycheck until you get caught up."
This may sound like a nightmare, but hundreds of non-custodial parents each year report that they are victims of mistakes in the collection of child support. For those who want to present their legitimate objections to the state, I humbly offer the Ten Commandments of Child Support.
1. Thou shalt keep a log...
At some point in your struggle to get a fair decision, you will need to advise DCS or the court of what has happened chronologically. A log of events is a powerful tool for justice. The human memory is not very reliable in times of great stress, like when you are asked to testify under oath. A log can help you (and your attorney) present a clear, accurate picture of what has really happened.
2. Thou shalt confirm by letter...
Working with a beaurocracy is sometimes like the Twilight Zone. You know you had a conversation in which you agreed that payments would be made in a certain way, but when you open the final DCS order, (you begin to hear that funky organ and bongo music and Rod Serling drones, "welcome to the twilight zone...",) well, that conversation never occurred! To
avoid errors and memory lapses, follow up conversations and agreements with a letter to DCS summarizing the conversation.
3. Thou shalt organize thine documents...
You're going to be asked for a load of records, including back tax returns, pay stubs, canceled checks, receipts, and so forth. You'd better bite the bullet right now and get organized.
4. Thou shalt file modifications...
Perhaps the biggest error made by support paying parents is to stop or reduce support when facts change (like when you are laid off) without filing, in court, a petition to modify support. It doesn't matter that you and your ex spouse agree. It doesn't matter that circumstances have really changed. Unless you file the petition to modify, the court can order payment in full per the original order of support. If you file a petition based on the same facts (i.e. job loss,) the court can reduce the support amount back to the date of the petition to modify. If you lose your job and have no income you'll continue to incur the same support debt unless you file a petition. It's like a cab at the curb; you're not riding in it, but the meter is still ticking.
5. Thou shalt not make side deals...
You can't make a side deal with your ex that binds DCS; it has to be approved by the court. If you owe $500 a month under the decree, and you agree instead to pay your ex's $600 a month rent, look out. If your ex receives public assistance, your rental payment will not be used to offset your support obligation. You still owe the full $500 a month to DCS to repay the public assistance grant.
6. Thou shalt be pro-active...
Don't wait for bad things to happen. Example: you don't pay for three months, and nothing happens, so you let it slide some more. Before you know it, five years has gone by, and you end up with a monstrous lien on your house.
7. Thou shalt respond promptly...
Respond to your notices and calls from DCS. I know, it's worse than the dentist. But attending to a small cavity now can prevent the future need for extracting a molar.
8. Thou shalt not digress...
Keep relevant; stick to the facts. The more you digress into the personal aspects of your divorce, the less energy you'll have to focus on the real issues.
9. Thou shalt be courteous...
Easier said than done. If you are all paid up, and the state is calling you a deadbeat, it's hard to keep your cool when you present your case to DCS. But remember, you are dealing with people, and people tend to get upset when they are screamed at. The best way to be heard is to be calm, professional and courteous.
10. Thou shalt not retaliate...
If your ex is malicious, or denies your visitation, file a motion in court to find your ex in contempt of court. Don't suspend your child support payments. Denial of visitation is no defense in Washington for non-support. And for heaven's sake, don't take your frustrations out on the DCS workers!
Obey the Ten Commandments of Paying Child Support. If you do, you may not go to Heaven, but it is less likely you'll find yourself in Hell.
This may sound like a nightmare, but hundreds of non-custodial parents each year report that they are victims of mistakes in the collection of child support. For those who want to present their legitimate objections to the state, I humbly offer the Ten Commandments of Child Support.
1. Thou shalt keep a log...
At some point in your struggle to get a fair decision, you will need to advise DCS or the court of what has happened chronologically. A log of events is a powerful tool for justice. The human memory is not very reliable in times of great stress, like when you are asked to testify under oath. A log can help you (and your attorney) present a clear, accurate picture of what has really happened.
2. Thou shalt confirm by letter...
Working with a beaurocracy is sometimes like the Twilight Zone. You know you had a conversation in which you agreed that payments would be made in a certain way, but when you open the final DCS order, (you begin to hear that funky organ and bongo music and Rod Serling drones, "welcome to the twilight zone...",) well, that conversation never occurred! To
avoid errors and memory lapses, follow up conversations and agreements with a letter to DCS summarizing the conversation.
3. Thou shalt organize thine documents...
You're going to be asked for a load of records, including back tax returns, pay stubs, canceled checks, receipts, and so forth. You'd better bite the bullet right now and get organized.
4. Thou shalt file modifications...
Perhaps the biggest error made by support paying parents is to stop or reduce support when facts change (like when you are laid off) without filing, in court, a petition to modify support. It doesn't matter that you and your ex spouse agree. It doesn't matter that circumstances have really changed. Unless you file the petition to modify, the court can order payment in full per the original order of support. If you file a petition based on the same facts (i.e. job loss,) the court can reduce the support amount back to the date of the petition to modify. If you lose your job and have no income you'll continue to incur the same support debt unless you file a petition. It's like a cab at the curb; you're not riding in it, but the meter is still ticking.
5. Thou shalt not make side deals...
You can't make a side deal with your ex that binds DCS; it has to be approved by the court. If you owe $500 a month under the decree, and you agree instead to pay your ex's $600 a month rent, look out. If your ex receives public assistance, your rental payment will not be used to offset your support obligation. You still owe the full $500 a month to DCS to repay the public assistance grant.
6. Thou shalt be pro-active...
Don't wait for bad things to happen. Example: you don't pay for three months, and nothing happens, so you let it slide some more. Before you know it, five years has gone by, and you end up with a monstrous lien on your house.
7. Thou shalt respond promptly...
Respond to your notices and calls from DCS. I know, it's worse than the dentist. But attending to a small cavity now can prevent the future need for extracting a molar.
8. Thou shalt not digress...
Keep relevant; stick to the facts. The more you digress into the personal aspects of your divorce, the less energy you'll have to focus on the real issues.
9. Thou shalt be courteous...
Easier said than done. If you are all paid up, and the state is calling you a deadbeat, it's hard to keep your cool when you present your case to DCS. But remember, you are dealing with people, and people tend to get upset when they are screamed at. The best way to be heard is to be calm, professional and courteous.
10. Thou shalt not retaliate...
If your ex is malicious, or denies your visitation, file a motion in court to find your ex in contempt of court. Don't suspend your child support payments. Denial of visitation is no defense in Washington for non-support. And for heaven's sake, don't take your frustrations out on the DCS workers!
Obey the Ten Commandments of Paying Child Support. If you do, you may not go to Heaven, but it is less likely you'll find yourself in Hell.
Tuesday, March 9, 2010
What About the Kids? Part Two
What if one parent in a divorce case claims that the other parent has a serious emotional disorder, and the other parent denies it and refuses to cooperate with any evaluation or testing? In that case, the lawyer for the parent making this claim has to file a motion with the Court for a Rule 35 Mental Evaluation. The motion has to be supported by at least one affidavit from someone having personal knowledge of facts which would indicate that such an evaluation is needed.
For example, if one parent has observed the other parent acting or talking in a bizarre or dangerous manner, an affidavit can be prepared to support a motion for a Rule 35 Mental Evaluation of the other parent. Examples of such behavior might be any type of physical violence, sexual abuse, abuse of drugs or alcohol, neglect of a child, or disruptive or aggressive behavior in a public place.
If emotional or psychiatric disorder of a parent is alleged, the Court can require that one or both parents undergo psychological testing, or a psychiatric evaluation. One or both of the parents will normally be required to pay for the cost of these evaluations. Very often, the only way that the emotional problems of the parent can be brought to the attention of the Court is through this kind of testing and evaluation.
After a dissolution petition has been filed, but before a decree of dissolution has been granted, a Temporary Parenting Plan is usually adopted and enforced by the Court. During that period of time, one or both parents will often claim that the other parent is violating the Temporary Parenting Plan.
If that should occur to you, make sure your attorney learns of the violation as soon as possible. Either parent is allowed to file a motion with the Court at any time to force the other parent to comply with a Temporary (or, for that matter, Permanent) Parenting Plan. Someone who violates a Parenting Plan can be fined, found in contempt of Court, or have their custodial contact reduced or even eliminated.
When the Court is ready to enter a final Dissolution Decree (divorce), a Permanent Parenting Plan will also be adopted at that time. If the parents have not agreed on such a plan, the Court will schedule a trial so that formal testimony can be taken. During the trial, both parents can call witnesses to testify under oath. These witnesses will include interested parties like friends and relatives, caretakers like teachers and day-care providers, and professionals such as doctors, counselors, and police.
After a Dissolution Decree has been entered, and a Parenting Plan has been adopted by the Court, the Plan will be modified only under limited circumstances (unless both parties agree to the change). A Permanent Parenting Plan can be modified only if there have been substantial changes since the Plan was adopted (for example, new evidence of substance abuse, child abuse, or emotional problems). If there is evidence of a substantial change in circumstances, either parent can file a Petition with the Court asking that the Parenting Plan be modified. If the parties cannot agree on a change, the Court can conduct another trial to determine what would be best for the children at that time.
Many disputes can be settled out of Court through counseling or mediation. It is very helpful if a Parenting Plan specifically identifies the dispute resolution process to be used by the parents in such a case. Settling child custody disputes outside of Court by mediation or cooperation is usually in the best interests of the children. If attempts to resolve the dispute in this way fail, both parents always have access to resolution of the dispute through the Courts.
Both parents should work especially hard to maintain an atmosphere of cooperation and trust in raising their children. This is more likely to occur if both parents work to keep their emotions under control, communicate freely with each other, keep their promises to each other, and at all times keep their children's best interests at heart.
For example, if one parent has observed the other parent acting or talking in a bizarre or dangerous manner, an affidavit can be prepared to support a motion for a Rule 35 Mental Evaluation of the other parent. Examples of such behavior might be any type of physical violence, sexual abuse, abuse of drugs or alcohol, neglect of a child, or disruptive or aggressive behavior in a public place.
If emotional or psychiatric disorder of a parent is alleged, the Court can require that one or both parents undergo psychological testing, or a psychiatric evaluation. One or both of the parents will normally be required to pay for the cost of these evaluations. Very often, the only way that the emotional problems of the parent can be brought to the attention of the Court is through this kind of testing and evaluation.
After a dissolution petition has been filed, but before a decree of dissolution has been granted, a Temporary Parenting Plan is usually adopted and enforced by the Court. During that period of time, one or both parents will often claim that the other parent is violating the Temporary Parenting Plan.
If that should occur to you, make sure your attorney learns of the violation as soon as possible. Either parent is allowed to file a motion with the Court at any time to force the other parent to comply with a Temporary (or, for that matter, Permanent) Parenting Plan. Someone who violates a Parenting Plan can be fined, found in contempt of Court, or have their custodial contact reduced or even eliminated.
When the Court is ready to enter a final Dissolution Decree (divorce), a Permanent Parenting Plan will also be adopted at that time. If the parents have not agreed on such a plan, the Court will schedule a trial so that formal testimony can be taken. During the trial, both parents can call witnesses to testify under oath. These witnesses will include interested parties like friends and relatives, caretakers like teachers and day-care providers, and professionals such as doctors, counselors, and police.
After a Dissolution Decree has been entered, and a Parenting Plan has been adopted by the Court, the Plan will be modified only under limited circumstances (unless both parties agree to the change). A Permanent Parenting Plan can be modified only if there have been substantial changes since the Plan was adopted (for example, new evidence of substance abuse, child abuse, or emotional problems). If there is evidence of a substantial change in circumstances, either parent can file a Petition with the Court asking that the Parenting Plan be modified. If the parties cannot agree on a change, the Court can conduct another trial to determine what would be best for the children at that time.
Many disputes can be settled out of Court through counseling or mediation. It is very helpful if a Parenting Plan specifically identifies the dispute resolution process to be used by the parents in such a case. Settling child custody disputes outside of Court by mediation or cooperation is usually in the best interests of the children. If attempts to resolve the dispute in this way fail, both parents always have access to resolution of the dispute through the Courts.
Both parents should work especially hard to maintain an atmosphere of cooperation and trust in raising their children. This is more likely to occur if both parents work to keep their emotions under control, communicate freely with each other, keep their promises to each other, and at all times keep their children's best interests at heart.
Wednesday, February 24, 2010
What About the Kids? Part One
Let's say that you and your spouse have finally agreed to get a divorce. You've discussed and resolved just about everything: who gets what car, TV set, bank account, appliances, and electronics. You've agreed on just about everything – with one exception. Who will take care of the kids?
This is just about the most gut-wrenching decision that anyone can make. How it is handled will have a tremendous effect – not only on the time and expense in getting a divorce, but also the future welfare and happiness of your children. Today we'll give an overview of the legal procedures.
In 1988, the State Legislature passed a statute that radically revised the way in which child custody decisions are made during a divorce. It totally eliminated the legal concepts of custody and visitation.
In place of these concepts, the new statute required the establishment of a residential schedule, in detail, outlining when each child would reside with each parent. The statute also requires a list of parental functions, and which parent will have the responsibility to perform each function.
The parental functions and residential schedules are set forth in a "Parenting Plan," which is signed by the Court. This Parenting Plan is required now in all marital dissolutions (divorces), annulments, and legal separations involving minor children.
The statute contemplates that both parents should, whenever possible, have a continuing relationship with the children. Increasingly, courts, psychiatrists, psychologists, and social workers have recognized the importance of both parents remaining responsible and active in the upbringing of their children.
Perhaps the most important feature of the Parenting Plan is the residential schedule. The residential schedule outlines where and when each child will live, and the nature and duration of the contact the children will have with each parent. If both parents agree on a residential schedule for the children, and the Court sees no inherent problem or danger for the children, the agreed residential schedule will be adopted by the Court.
However, if the parties cannot agree, or an issue is raised in Court which makes the Court feel that input is needed from a disinterested person, the Court can order that an investigation be conducted, and a report be written to assist the Court in deciding where the children should live. The Court can order an investigation be done by employees of the Court, or a Guardian ad Litem for the children. "Guardian ad Litem" (GAL) means "guardian for the litigation," and is a neutral person appointed by the Court to conduct an investigation.
Whether the report is written by a GAL or a Court employee, the recommendation made in the resulting report is normally adopted by the Court. I would venture to say that in 90 percent of all such cases, the recommendation made by the Family Court Investigator or GAL is adopted as the Parenting Plan for the children.
Depending on the financial resources of the parents, they also can obtain and provide evidence for the use of the Court and the investigator. Both parents, for example, will be interviewed by the GAL. In addition, if time allows, the GAL should interview friends, relatives, and other potential witnesses from lists supplied by both the mother and the father. If there has been any domestic violence, medical records and statements from counselors and physicians must be reviewed. Observations of day care workers are also often very helpful.
Obviously, since the GAL's investigation is often paid for by the parents, the extent of the investigation will depend on the financial resources available to the family. When the family can't pay for such an investigation, it will should be done by the Family Court's own investigators.
Although the law encourages involvement and contact of the children with both parents, this contact can be limited and even eliminated for a number of reasons. These reasons include a prior history of abandonment, child abuse, substance abuse, or emotional problems.
If alcoholism or substance abuse is alleged, the Court may order the parties to undergo a drug/alcohol evaluation by a licensed facility. This may involve not only an interview, but urinalysis. In appropriate cases, the Court has the power to order one or both parents to attend parenting classes or anger management counseling.
Next week, we'll discuss some specific problems, like emotional disorders of a parent, substance dependency, and child abuse.
This is just about the most gut-wrenching decision that anyone can make. How it is handled will have a tremendous effect – not only on the time and expense in getting a divorce, but also the future welfare and happiness of your children. Today we'll give an overview of the legal procedures.
In 1988, the State Legislature passed a statute that radically revised the way in which child custody decisions are made during a divorce. It totally eliminated the legal concepts of custody and visitation.
In place of these concepts, the new statute required the establishment of a residential schedule, in detail, outlining when each child would reside with each parent. The statute also requires a list of parental functions, and which parent will have the responsibility to perform each function.
The parental functions and residential schedules are set forth in a "Parenting Plan," which is signed by the Court. This Parenting Plan is required now in all marital dissolutions (divorces), annulments, and legal separations involving minor children.
The statute contemplates that both parents should, whenever possible, have a continuing relationship with the children. Increasingly, courts, psychiatrists, psychologists, and social workers have recognized the importance of both parents remaining responsible and active in the upbringing of their children.
Perhaps the most important feature of the Parenting Plan is the residential schedule. The residential schedule outlines where and when each child will live, and the nature and duration of the contact the children will have with each parent. If both parents agree on a residential schedule for the children, and the Court sees no inherent problem or danger for the children, the agreed residential schedule will be adopted by the Court.
However, if the parties cannot agree, or an issue is raised in Court which makes the Court feel that input is needed from a disinterested person, the Court can order that an investigation be conducted, and a report be written to assist the Court in deciding where the children should live. The Court can order an investigation be done by employees of the Court, or a Guardian ad Litem for the children. "Guardian ad Litem" (GAL) means "guardian for the litigation," and is a neutral person appointed by the Court to conduct an investigation.
Whether the report is written by a GAL or a Court employee, the recommendation made in the resulting report is normally adopted by the Court. I would venture to say that in 90 percent of all such cases, the recommendation made by the Family Court Investigator or GAL is adopted as the Parenting Plan for the children.
Depending on the financial resources of the parents, they also can obtain and provide evidence for the use of the Court and the investigator. Both parents, for example, will be interviewed by the GAL. In addition, if time allows, the GAL should interview friends, relatives, and other potential witnesses from lists supplied by both the mother and the father. If there has been any domestic violence, medical records and statements from counselors and physicians must be reviewed. Observations of day care workers are also often very helpful.
Obviously, since the GAL's investigation is often paid for by the parents, the extent of the investigation will depend on the financial resources available to the family. When the family can't pay for such an investigation, it will should be done by the Family Court's own investigators.
Although the law encourages involvement and contact of the children with both parents, this contact can be limited and even eliminated for a number of reasons. These reasons include a prior history of abandonment, child abuse, substance abuse, or emotional problems.
If alcoholism or substance abuse is alleged, the Court may order the parties to undergo a drug/alcohol evaluation by a licensed facility. This may involve not only an interview, but urinalysis. In appropriate cases, the Court has the power to order one or both parents to attend parenting classes or anger management counseling.
Next week, we'll discuss some specific problems, like emotional disorders of a parent, substance dependency, and child abuse.
Tuesday, February 16, 2010
MOVING OUT OF STATE AFTER A DIVORCE
What would you do if you had primary custody of your children after a divorce, then remarried, planned to move to another state, but were denied the right to take the children with you by the Divorce Court?
In a case which recently considered that issue, Division 3 of the Washington State of Court of Appeals held that the custodial parent should at least be given a trial to present evidence as to why she should be allowed to take the kids with her.
In the case in question, the parents of two children had a Final Parenting Plan after divorce, which equally split residential time between the two parents. However, the mother was designated as the "Primary Parent".
The mother remarried a military man, and filed a motion with the court for a modification of the Parenting Plan to reduce the father’s visitation because of her plan to move to California to be with her father, who was recently diagnosed with terminal cancer. Her husband, a member of the armed forces, had obtained a transfer to California to allow his wife to be near her father.
The father vigorously opposed the mother’s motion. The court commissioner entered an order denying the mother the right to take the children to California, and even denied her the right to a hearing on the issue. The commissioner’s reason was a statute, which says that if a parent wants a "major" change in the parenting plan, she has to prove that the current plan is detrimental to the child’s wellbeing. As a result, the mother had to move to California and leave the children with her husband, and wasn’t even allowed to have a trial with witnesses testifying on her behalf.
The mother appealed. The Court of Appeals reversed the trial court’s decision, and ruled that, at the very least, the mother should be allowed to present evidence on whether or not she had adequate reasons to justify changing the Parenting Plan and move the children with her to California.
Washington State Statutes on how to modify a Parenting Plan provides two different rules, depending on whether the proposed modification is "major" or "minor". In the above case, everybody (including the trial court) assumed that moving the children from Washington to California would be a "major" change. If that were true, the mother would have to prove that the living environment for the children in Washington State was detrimental to their physical, mental or emotional health, and the harm likely to be caused the move to California is outweighed by the advantages of the move.
This would be very tough to prove.
The Court of Appeals, however, decided in this case that moving the children to California was only a "minor" change in the parenting plan. That would be very important to the mother’s case, because she would then only have to show a "substantial change in circumstances of either parent or of the child", including a "minor modification in the residential schedule that is based upon a change of residence or an involuntary change in work schedule by a parent which makes the residential schedule in the parenting plan impractical to follow."
The court of Appeals held that the mother might be able to prove at trial that her change of residence was "involuntary" because she had to move closer to her terminally ill father, and that the existing parenting plan (requiring each parent to alternate weeks with the children) would be "impractical" after her move to California. Therefore, reasoned the Court of Appeals, the proposal for a change in the parenting plan should be classified as "minor'" not "major."
The Court of Appeals quoted a prior case which held that "although a move out of state and away from the nonresidential parent is undoubtedly a major event in a young child’s life, the statute contemplates that a substantial change in circumstances of either parent or of the child can be addressed through a "minor" modification of the parenting plan." The trial court’s order, requiring the mother to leave the children with the father, "forces the [mother] into the quandary of choosing between her freedom to reside with her present husband [in California] or leaving without her children …" The Court of Appeals held that at least the mother should be allowed to have a full evidentiary hearing in court to allow the judge to decide whether or not to modify the parenting plan so that she could move. "A court may restrict a parent from moving only after finding the child would suffer more distress than normally attends the hardships of travel and distance from a parent."
The bottom line is this: If you are the primary residential parent after a divorce, and you want to move to another state, you may be allowed to do so unless your ex can prove that your children would suffer more than what would be normally expected.
In a case which recently considered that issue, Division 3 of the Washington State of Court of Appeals held that the custodial parent should at least be given a trial to present evidence as to why she should be allowed to take the kids with her.
In the case in question, the parents of two children had a Final Parenting Plan after divorce, which equally split residential time between the two parents. However, the mother was designated as the "Primary Parent".
The mother remarried a military man, and filed a motion with the court for a modification of the Parenting Plan to reduce the father’s visitation because of her plan to move to California to be with her father, who was recently diagnosed with terminal cancer. Her husband, a member of the armed forces, had obtained a transfer to California to allow his wife to be near her father.
The father vigorously opposed the mother’s motion. The court commissioner entered an order denying the mother the right to take the children to California, and even denied her the right to a hearing on the issue. The commissioner’s reason was a statute, which says that if a parent wants a "major" change in the parenting plan, she has to prove that the current plan is detrimental to the child’s wellbeing. As a result, the mother had to move to California and leave the children with her husband, and wasn’t even allowed to have a trial with witnesses testifying on her behalf.
The mother appealed. The Court of Appeals reversed the trial court’s decision, and ruled that, at the very least, the mother should be allowed to present evidence on whether or not she had adequate reasons to justify changing the Parenting Plan and move the children with her to California.
Washington State Statutes on how to modify a Parenting Plan provides two different rules, depending on whether the proposed modification is "major" or "minor". In the above case, everybody (including the trial court) assumed that moving the children from Washington to California would be a "major" change. If that were true, the mother would have to prove that the living environment for the children in Washington State was detrimental to their physical, mental or emotional health, and the harm likely to be caused the move to California is outweighed by the advantages of the move.
This would be very tough to prove.
The Court of Appeals, however, decided in this case that moving the children to California was only a "minor" change in the parenting plan. That would be very important to the mother’s case, because she would then only have to show a "substantial change in circumstances of either parent or of the child", including a "minor modification in the residential schedule that is based upon a change of residence or an involuntary change in work schedule by a parent which makes the residential schedule in the parenting plan impractical to follow."
The court of Appeals held that the mother might be able to prove at trial that her change of residence was "involuntary" because she had to move closer to her terminally ill father, and that the existing parenting plan (requiring each parent to alternate weeks with the children) would be "impractical" after her move to California. Therefore, reasoned the Court of Appeals, the proposal for a change in the parenting plan should be classified as "minor'" not "major."
The Court of Appeals quoted a prior case which held that "although a move out of state and away from the nonresidential parent is undoubtedly a major event in a young child’s life, the statute contemplates that a substantial change in circumstances of either parent or of the child can be addressed through a "minor" modification of the parenting plan." The trial court’s order, requiring the mother to leave the children with the father, "forces the [mother] into the quandary of choosing between her freedom to reside with her present husband [in California] or leaving without her children …" The Court of Appeals held that at least the mother should be allowed to have a full evidentiary hearing in court to allow the judge to decide whether or not to modify the parenting plan so that she could move. "A court may restrict a parent from moving only after finding the child would suffer more distress than normally attends the hardships of travel and distance from a parent."
The bottom line is this: If you are the primary residential parent after a divorce, and you want to move to another state, you may be allowed to do so unless your ex can prove that your children would suffer more than what would be normally expected.
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