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Posts Tagged ‘Domestic Violence’

The Division II court of appeals held recently that someone accused of domestic violence in a domestic violence protection order proceeding does not have a right to a trial by jury.

In 2008, the wife/mother, Tiffany Blackmon, filed a petition for a domestic violence protection order on her behalf and on behalf of her seven-year-old son against her estranged husband, Brian Blackmon.

The trial court issued a temporary order of protection and set a date for the return hearing.  The parties then continued the date of the return hearing a number of times and Mr. Blackmon filed a jury demand.

The trial court denied Mr. Blackmon’s jury demand.  The appellate court affirmed.  To reach its holding, the court first established that the right to trial by jury enshrined in the state Constitution was limited to those causes of action for which a jury was available when the Constitution was adopted in 1889.

At that time, a jury was available to hear a cause of action sounding in law, but not in equity.  The distinction between law and equity focuses on the relief sought.  Injunctive relief is equitable.  An injunction is a court order prohibiting a party from engaging in a particular behavior.  Most other kinds of relief sound in law.

The court of appeals then reasoned that a domestic violence protection order – which prohibits a party from having contact with the other party – is injunctive in nature and therefore sounds in equity, and therefore the prohibited party does not have a right to a trial by jury.

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A new case from the Court of Apeals, Neilson ex rel. Crump v. Blanchette, docket # 27066-1 (Division III), holds that the domestic violence statute does not cover acts between individuals in a dating relationship under the age of sixteen. The holding is based on the definition of “family or household members.”

“Family or household members” includes “persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship.”

Here, the alleged perpetrator was seventeen years old and the alleged victim was fourteen years old. The trial court overlooked this fact and entered a domestic violence protection order on behalf of the alleged victim. Among other restrictions, the order prevented the alleged perpetrator from attending the high school that he and the alleged victim both attended.

The court of appeals reversed, holding that the trial court lack authority to issue the order because the statute only applied to persons in a current or former dating relationship who were sixteen years old or older.

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A new decision from the court of appeals, Division II, Meredith v. Muriel, Docket No. 37098-1, held that a permanent domestic violence protection order restraining the father from contacting the US Department of Homeland Security regarding the mother’s immigration status violated the first amendment.

The first amendment proscribes governmental prior restraint of protected speech. A prior restraint, or gag order, is an order that prevents the restrained person from saying something in the future. Protected speech is, essentially, anything that isn’t libelous, slanderous, or incendiary (e.g. shouting fire in a crowded theater).

In this case, the father, an assistant attorney general for the Commonwealth of Virginia, decided that he wanted an Internet bride. He then made contact with a 16-year-old from Colombia. When the girl turned 18, the father brought her over here, married her, and got her pregnant.

He also engaged in a pattern of domestic violence and abuse against her. The mother ended up in Pierce County and filed for dissolution. In the dissolution process, the father tried to intimidate witnesses and falsify evidence. He also tried to interfere with the mother’s immigration process.

Based on this past conduct, the court order restrained the father from contacting any government agency about the mother’s immigration status. The court of appeals remanded to the lower court with instructions to re-craft the restraining order so it didn’t restrain protected speech.

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DVPO v. UCCJEA

A new decision from the court of appeals, Div. 1, In Re the Parenting and Support of: A.r.k.k. & N.j.k., illustrates the perils of taking your custody battle to another state. Parents in particularly tumultous child custody battles with the other parent will sometimes move across state boundaries with their children to prevent the other parent from seeing the children.

Depending on one’s perspective, this may be a response to domestic violence or another chapter in a campaign of parental alienation. Either way, it probably doesn’t work.

BACKGROUND

In this case, the mother got a one-year-long domestic violence protection order against the father in San Juan County, Washington. She then left Washington for Montana. The father followed her a few months later.

While the parents were living in Montana, the domestic violence protection order in Washington expired and jurisdiction ripened in Montana. Simultaneously, the parents renewed their custody battle in Montana.

Over a year later, the mother returned to Washington and obtained a new domestic violence protection order against the father. The father, who was still in Montana, then petitioned the Montana court for a restraining order and an interim parenting plan. The mother did not return for the hearing. The Montana court then adopted the father’s interim plan, ordered the children back to Montana, and found the mother in contempt.

To enforce the Montana order, the father obtained a writ of habeas corpus from the court in Washington. The mother complied with the writ and returned with the children to Montana. However, during Christmas vacation, she took the children back to Washington and took up residence in a battered women’s shelter in King County, Washington.

The father then obtained a second writ of habeas corpus, but the writ was never enforced. The mother, meanwhile, filed for an interim parenting plan. The Washington Court then held a hearing to determine which state had jurisdiction.

ISSUE

The issue at the hearing was which state had jurisdiction (in the language of the Uniform Child Custody Jurisdiction and Enforcement Act, which state was the home state) — Washington, based on the original residence of the children, the expired domestic violence protection order, and the second domestic violence protection order, or Montana, based on the residence of the children when the interim parenting plan was entered.

The Washington court held that jurisdiction lay in Montana.

The original residence of the children was no longer operative because domicile had changed; the expired domestic violence protection order did not confer jurisdiction because it had expired; and the new domestic violence protection order was invalid to start with because the court never had jurisdiction to issue it. Therefore, the home state, Montana, had jurisdiction.

LESSON
Moving across state borders to prevent your ex-spouse from seeing the children is not a winning strategy. If you are facing domestic violence problems, renewing your existing domestic violence protection order is going to be much cheaper, and probably more effective, then flight.

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