Friday, May 19, 2017

Violations of Court Orders: Enforcement, Contempt, and Punitive Sanctions.


May 19, 2017 – Bains Law Firm

In Family Law, often a party does not comply with the Court's Order.  When that happens, what can be done?  In Washington there are a variety of legal remedies to compel enforcement, impose contempt, or otherwise punish a party for violations of a valid Court Order.

Contempt of Court for Child Support and Parenting Plan Violations:
Contempt is a serious remedy that is often used in the context of violations of a ChildSupport Order or a Parenting Plan.  Bringing a contempt motion should be carefully considered.  When a parent fails to pay child support (usually a repeat violation), pursuing contempt might be appropriate.  For parenting plans, when a parent withholds the child,  refuses to allow visitation, does not allow access to the child, or violates any number of provisions in the plan, contempt may be appropriate.  Since contempt is a serious matter, it is often prudent to send a noncompliance letter (or some other form of notice), prior to seeking contempt sanctions.  This will provide the offending party an opportunity to cure or otherwise resolve the situation short of court action. 

(1)  "Contempt of court" means intentional:

(a) Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to impair its authority, or to interrupt the due course of a trial or other judicial proceedings;

(b) Disobedience of any lawful judgment, decree, order, or process of the court;

(c) Refusal as a witness to appear, be sworn, or, without lawful authority, to answer a question

·         Consequences of Child Support not being paid:
o    If a parent is found in contempt, in addition to paying upon the support that is owed, the parent may liable for monetary sanctions (including, but not limited to costs and attorney fees), liens assessed against property/accounts or even seized, wages garnished, licenses suspended, and even, in the most extreme situations, the parent is sent to jail.

·         Consequences of Parenting Plan being violated:
o    If a parent is found in contempt, remedies can include make up visitation, monetary sanctions (including, but not limited to costs and attorney fees), and again, in the most extreme cases, even jail time.  Furthermore, if a parent has been found to be in contempt for violating residential provisions twice in a 3 year time period, the parenting plan may be modified. 

Restraining Order: This is a civil order, generally filed in the context of an existing family law case, such as a pending dissolution or child custody case. This type of order is different from a Domestic Violence Protection Order since it may deal with property, parenting plan, spousal or child support, as well as domestic violence issues.  
·         Consequences of Violation of Order:
o    Contempt and/or monetary sanctions, including, but not limited to costs and attorney fees, amendment of the order violated to include harsher restrictions or restraints, and even possible criminal charges. 

Domestic ViolenceProtection Order: This is a civil order from the Court issued at the request of a person claiming to be the victim of domestic violence.
·         Consequences of Violation of Order:
o    Possible criminal charges or contempt.  If criminal charges are pursued, this may include Class C felony if there is an assault or reckless endangerment, otherwise a Gross Misdemeanor.

Sexual Assault Protection Order: This is a often a civil order from the Court (but can also be done in the context of a criminal action).
·         Consequences of Violation of Order:
o    Possible criminal charges or contempt.  If criminal charges are pursued, Class C felony if there is an assault or reckless endangerment, otherwise a Gross Misdemeanor.

Anti-Harassment Order: This is a civil order issued for a person claiming any type of harassment and when a person does not qualify for a Domestic Violence Protection Order. These orders are commonly filed in disputes that don’t involve a domestic relationship.
·         Consequences of Violation of Order:
o    Possible criminal charges or contempt.  If criminal charges are pursued, may likely involve a Gross Misdemeanor.

Family law litigation can be emotionally difficult and complex. Decisions made about each step of the litigation can affect you for many years. We have years of experience helping our clients through the difficulty of enforcing violations of court order, and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com to talk about your case.

Disclaimer: All materials provided on this website have been prepared by Bains LawFirm for general information purposes only and no representation is made as to their completeness or accuracy. Information on this website is not intended as legal advice, and may not be relied upon as such. Only an attorney who can review the unique facts of each case and apply them to the statutes, case law and court rules can provide legal advice. Nothing in this website shall be construed to create an attorney-client relationship.


Monday, May 8, 2017

Parental Alienation

May 8, 2017 – Bains Law Firm

One of the unfortunate aspects of family law in Washington State is sometimes a bitter, heated dispute between parents breaks out over the establishment or modification of a parenting plan.  These custody battles amongst parents often claim their own children as causalties.  One of the most frequent weapons used by misguided parents involves engaging in Parental Alienation.  
Dr. Richard A. Gardner, a forensic psychiatrist, wrote extensively about Parental Alienation Syndrome and outlines three factors: (1) Occurs in the context of a child custody dispute between parents, (2) Manifested by the child, who promotes his/her undue dislike of one parent, and (3) May be caused by the child’s motivations or intentions of the non-targeted parent. 

Parental Alienation is when a parent takes action that causes estrangement of the child to the other parent. For example, when a parent “brainwashes” the child into false beliefs about the other parent, that can be considered Parental Alienation.  A more extreme example could be the efforts of a parent to replace the other parent with a new significant other.  This can be done either by reference or direct action, such as overtly changing the last name of the child to that of the new significant other, and forcing the child to go by that new name at school, in sports, etc.  This is Parental Alienation and is harmful to the child. 

In cases when children are being subjected to Parental Alienation, a parent needs to act.  Having a third party investigate the child's situation is often a good option.  For example, in a pending case, a parent can bring a motion for a Guardian ad Litem or Parenting Evaluator. These professionals can review Court filings, interview the parents, children and other relevant witnesses, as well as review other pertinent evidence to assist in generating a report and recommendations to serve the best interest of the child.  

Parental Alienation can be a basis for restricting visitation in a parenting plan under Washington State law.  Referred to "abusive use of conflict", the statute authorizes limitations upon a parent who engages in such harmful behavior.  Determining whether a parent's behavior to engage in Parental Alienation or abusive use of conflict, rises to the level to justify limitations upon that parent will depend heavily on the facts. An experienced attorney, well versed in Parental Alienation, is often essential to evaluate the harm being unnecessarily inflicted upon your children by the other parent and strategize with you to protect the children by seeking limitations on the offending parent.

Family law litigation can be emotionally difficult and complex. Decisions made about each step of the litigation can affect you for many years. We have years of experience helping our clients through the difficulty of family law matters, including parental alienation cases and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your case.






Disclaimer: All materials provided on this website have been prepared by Bains LawFirm for general information purposes only and no representation is made as to their completeness or accuracy. Information on this website is not intended as legal advice, and may not be relied upon as such. Only an attorney who can review the unique facts of each case and apply them to the statutes, case law and court rules can provide legal advice. Nothing in this website shall be construed to create an attorney-client relationship.

Tuesday, April 25, 2017

Paternity

April 25, 2017 – BainsLaw Firm

In Washington State, if parents are not married, the issues of a Parenting Plan and Child Support may be decided by a parentage (paternity) action. Other issues in parentage matters include challenging paternity (strict timelines apply), which may include a request for genetic testing.
Paternity can be established with two different methods. The first method, is when both parents sign and notarize an Acknowledgement of Paternity form. This usually takes place at the hospital at the time of the child’s birth.  After this takes place the Department of Heath will add the father’s name to the child’s birth certificate.

Acknowledgment of paternity.
The mother of a child and a man claiming to be the genetic father of the child may sign an acknowledgment of paternity with intent to establish the man's paternity.

The second method, is to file a Petition to Decide Paternity with the court. Petition to Decide Paternity can be filed by the mother, father, or often, by the State. Often when paternity is contested, a hearing will be held. If the alleged father does not appear in the litigation, a default order can be entered, establishing paternity. If the father appears and contends he is not the father, the court may order genetic testing. After genetic testing has occurred, the court may issue an order to either establish or deny paternity. Once paternity has been established issues such as a parenting plan (or residential schedule) and child support may be determined.

Order for genetic testing.
(1) Except as otherwise provided in this section and RCW 26.26.410 through 26.26.630, the court shall order the child and other designated individuals to submit to genetic testing if the request for testing is supported by the sworn statement of a party to the proceeding:
(a) Alleging paternity and stating facts establishing a reasonable probability of the requisite sexual contact between the individuals; or
(b) Denying paternity and stating facts establishing a possibility that sexual contact between the individuals, if any, did not result in the conception of the child.
(2) A support enforcement agency may order genetic testing only if there is no presumed or adjudicated parent and no acknowledged father.
(3) If a request for genetic testing of a child is made before birth, the court or support enforcement agency may not order in utero testing.
(4) If two or more persons are subject to court-ordered genetic testing, the testing may be ordered concurrently or sequentially.
(5) This section does not apply when the child was conceived through assisted reproduction.

Family law litigation can be emotionally difficult and complex. Decisions made about each step of the litigation can affect you for many years. We have years of experience helping our clients through the difficulty of family law matters, including paternity and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your case.





Disclaimer: All materials provided on this website have been prepared by Bains Law Firm for general information purposes only and no representation is made as to their completeness or accuracy. Information on this website is not intended as legal advice, and may not be relied upon as such. Only an attorney who can review the unique facts of each case and apply them to the statutes, case law and court rules can provide legal advice. Nothing in this website shall be construed to create an attorney-client relationship.



Saturday, April 15, 2017

Washington State Family Law & Divorce: Non-Parental (Third Party) Custody; Grandparents Rights

April 15, 2017 - Bains Law Firm 


Non-parental custody actions are brought when third parties (people other than the actual parents)  seek custody of minor children where either both parents are unfit, or where the children have been voluntarily placed with a third party by the parents. 

Before a non-parental custody case can proceed, a party seeking nonparental custody is required to establish "adequate cause" for the petition.  This is often referred to as a "threshold requirement".  On January 19, 2017, the Washington State Supreme Court set forth that before a trial on the merits of a non-parental custody petition, a litigant must satisfy the threshold requirement of "adequate cause" by showing that the biological parent is either unfit or that placing the child in the parent's custody would result in actual detriment to the growth and development.  If the court finds that there is not adequate cause to proceed with the case, the case will be dismissed. If the court finds that there is adequate cause, temporary orders may be entered, a parenting investigation may occur and the case will proceed to trial if it is not resolved by way of settlement. 

A common misperception is that Washington State allows for grandparent's rights or third party visitation.  However, there is no right to grandparent or third party visitation as the law has been interpreted, and as such, grandparents or other third parties are given the option of seeking custody or nothing at all.

Non-parental custody cases are usually an emergent action for children in danger. Often in the case of grandparents, a difficult practical and emotional balance must be struck.  Grandparents  do not want to act as "parents" again, but feel that they have to step in to help their grandchildren.  If this is the situation, it is important to know that there is a statute that permits you to save your grandchildren.  Since there is no such thing as grandparent or third party visitation in Washington State, and the fact that there is an adequate cause/threshold requirement that must be met in order for the litigation to proceed forward, it is very important to prepare the case thoroughly before filing a petition for non-parental custody.   

Family law litigation, including non-parental custody actions, can be emotionally difficult and complex. Decisions made about each step of the litigation can affect you for many years. We have years of experience helping our clients through the difficulty of non-parental custody actions and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your divorce.





Disclaimer: All materials provided on this website have been prepared by Bains Law Firm for general information purposes only and no representation is made as to their completeness or accuracy. Information on this website is not intended as legal advice, and may not be relied upon as such. Only an attorney who can review the unique facts of each case and apply them to the statutes, case law and court rules can provide legal advice. Nothing in this website shall be construed to create an attorney-client relationship.  

Wednesday, April 12, 2017

Washington State Family Law & Divorce: Parenting Plan--Who Speaks for the Child?

April 12, 2017 – Bains Law Firm

In contested family law cases with children, emotions can run high and allegations plentiful if child custody is an issue.  When both parents are seeking primary residential placement, or "custody" of the children, there is often no shortage of harmful and hurtful allegations.  Serving the best interests of the children becomes excruciatingly difficult for the Court to resolve when the parents are focused upon tearing each other down.  As such, when parenting abilities are an issue, the Court will often use a neutral third party to investigate the children's circumstances, make parenting recommendations, and sometimes even advocate on behalf of the child. Although the Court has the power to interview the children directly, such occurrences are quite rare.  Every county in Washington state follows their own procedures to assist the Court in determining the children's best interests in difficult contested parenting matters. 

For example, for parenting plan issues arising in King County, there are a variety of tools for a Court Commissioner or Judge to use to look into the children's actual circumstances.  The Court may appoint a Guardian ad Litem, private parenting evaluator, or even use lower cost options, such as Family Court Services or CASA (Court Appointed Special Advocates).  Any of these methods can provide the Court with very useful information regarding the children.

In Pierce County, the Court most often relies upon a Guardian ad Litem to be appointed from a court-approved registry.  When a Court Commissioner or Judge enters an Order authorizing the use of a Guardian ad Litem, three names will be generated from the registry.  Each parent will have the opportunity to strike one of the names, and the one name remaining will be appointed as the Guardian ad Litem.

The professional, whether it be a Guardian ad Litem, parenting evaluator, or other type of parenting investigator, will most often look at the Court filings, interview the parents, children and other relevant witnesses, as well as review other pertinent evidence to assist in generating a report and recommendations to serve the best interests of the children.  While the Court is not bound to follow any such recommendations, oftentimes the input of such a professional is very helpful to the Court's determination of custody and parenting issues. 

The statute below grants the Court its authority to interview the children and/or appoint a professional to look into the children's circumstances.


Parenting plans—Interview with child by court—Advice of professional personnel.

The court may interview the child in chambers to ascertain the child's wishes as to the child's residential schedule in a proceeding for dissolution of marriage or domestic partnership, legal separation, or declaration of invalidity. The court may permit counsel to be present at the interview. The court shall cause a record of the interview to be made and to be made part of the record in the case.

The court may seek the advice of professional personnel whether or not they are employed on a regular basis by the court. The advice given shall be in writing and shall be made available by the court to counsel upon request. Counsel may call for cross-examination any professional personnel consulted by the court.


Family law litigation, particularly contested child custody matters, can be emotionally difficult and complex. Decisions made about each step of the litigation can affect you for many years. We have decades of experience helping our clients through the difficulty of family law cases, including contested parenting cases and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your case.




Disclaimer: All materials provided on this website have been prepared by Bains Law Firm for general information purposes only and no representation is made as to their completeness or accuracy. Information on this website is not intended as legal advice, and may not be relied upon as such. Only an attorney who can review the unique facts of each case and apply them to the statutes, case law and court rules can provide legal advice. Nothing in this website shall be construed to create an attorney-client relationship.


Tuesday, April 4, 2017

Washington State Family Law & Divorce: Post-Secondary Educational Support

April 4, 2017 – Bains Law Firm

Bains Law Firm
In Washington State, postsecondary educational support can be ordered to require parents to pay for college for their children.  In general, child support obligations end when a child turns eighteen or graduates from high school (whichever occurs later), unless postsecondary educational support is awarded.

When determining whether postsecondary support is required of the parents, the first thing to do is to review the final child support order.  If the Court has already established a postsecondary educational support obligation, further Court action is probably unlikely.  The parents and the child will have to abide by the postsecondary educational support provision that has been established in the final child support order

However, when the final child support order sets forth that postsecondary educational support is "reserved" (not addressed), then a petition to modify child support will need to be filed.  Reserving postsecondary educational support for a later determination is quite common, unless the child is already in high school at the time the final child support order is entered.  Either parent can file a petition to modify the final child support order but it must be done before the child turns eighteen or is no longer enrolled in high school (whichever occurs later).

To qualify for postsecondary support, the adult dependent child must meet certain statutory criteria, such as being enrolled in an accredited academic school and maintain good academic standing. A parent who is obligated to pay for the postsecondary support has the right to all academic records, including grades. In addition, postsecondary support can be suspended if the student does not maintain these requirements or after the child’s twenty-third birthday (unless special circumstances exist).  

When the Court is determining an award of postsecondary educational support, it considers the factors in RCW 26.19.090 (2), such as reliance of the child on the parents for the reasonable necessities of life. Other considerations include the age of the child, the child’s needs, the expectations of the parties, the child’s prospects, desires, aptitudes, abilities, or disabilities, as well as many other factors listed below.

Standards for postsecondary educational support awards.

 (2) When considering whether to order support for postsecondary educational expenses, the court shall determine whether the child is in fact dependent and is relying upon the parents for the reasonable necessities of life. The court shall exercise its discretion when determining whether and for how long to award postsecondary educational support based upon consideration of factors that include but are not limited to the following: Age of the child; the child's needs; the expectations of the parties for their children when the parents were together; the child's prospects, desires, aptitudes, abilities or disabilities; the nature of the postsecondary education sought; and the parents' level of education, standard of living, and current and future resources. Also to be considered are the amount and type of support that the child would have been afforded if the parents had stayed together.

Family law litigation can be emotionally difficult and complex. Decisions made about each step of the litigation can affect you for many years. We have decades of experience helping our clients through the difficulty of family law cases, including child support modifications and establishment of post secondary educational support obligations, and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your case.







Disclaimer: All materials provided on this website have been prepared by Bains Law Firm for general information purposes only and no representation is made as to their completeness or accuracy. Information on this website is not intended as legal advice, and may not be relied upon as such. Only an attorney who can review the unique facts of each case and apply them to the statutes, case law and court rules can provide legal advice. Nothing in this website shall be construed to create an attorney-client relationship.

Monday, March 27, 2017

Washington State Family Law & Divorce: Child Support Modification and Adjustment

March 27, 2017 – Bains Law Firm

Bains Law Firm
In Washington, provisions in "final" child support orders can be modified or adjusted.  The same is true for "final" parenting plans.  Such changes, however, cannot be made in final orders regarding most property awards or debt allocations entered in divorce or legal separation matters.  The following discusses modification and adjustment of final child support orders.

There are two ways for most parents to change a final child support order, either by a Petition to Modify Child Support, or a Motion for Adjustment of Child Support.

A parent can file a Petition to Modify a final child support order at any time upon a showing of substantially changed circumstances. However, a substantial change in circumstances cannot be a voluntary change by itself, such as voluntary unemployment or voluntary underemployment.

Alternatively, a Petition to Modify a final child support order can be filed without showing of a substantially changed circumstance, if one year has passed since the final order was entered, and if one of the following requirements is present:
(1)   If the order in practice works a severe economic hardship on either party of the child;
(2)   If a party requests an adjustment in an order for child support which was based on guidelines which determined the amount of support according to the child’s age, and the child is no longer in the age category on which the current support amount was based;
(3)   If a child is still in high school, upon a finding that there is a need to extend support beyond the eighteenth birthday to complete high school; or
(4)   To add an automatic adjustment of support provision consistent with RCW 26.09.100.

A parent can also file a Motion for Adjustment of child support after 24 months have passed from the date of the entry of the support order (or the last adjustment or modification, whichever is later), without showing a substantial change in circumstances, if one of the following has occurred:
(1)   Changes in the income of the parents; or
(2)   Changes in the economic table or standards in chapter 26.19 RCW.

Deciding which avenue to pursue, filing a Petition to Modify Child Support or filing a Motion for Adjustment of Child Support, requires detailed factual and legal analysis and should be undertaken upon consultation with competent family law counsel well versed in child support laws. 

Family law litigation can be emotionally difficult and complex. Decisions made about each step of the litigation can affect you for many years. We have decades of experience helping our clients through the difficulty of family law and child support actions and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your case.






Disclaimer: All materials provided on this website have been prepared by Bains Law Firm for general information purposes only and no representation is made as to their completeness or accuracy. Information on this website is not intended as legal advice, and may not be relied upon as such. Only an attorney who can review the unique facts of each case and apply them to the statutes, case law and court rules can provide legal advice. Nothing in this website shall be construed to create an attorney-client relationship.