Thursday, April 12, 2018

Shared Parenting and Relocation

In Washington State, when a parent wishes to relocate with children, the residential schedule designated in the Parenting Plan may have significant legal consequences for the impending move.  Do the parties have a traditional every other weekend schedule, where one parent is clearly the primary residential parent?  Or do the parties have a joint custody type of arrangement, often termed as a shared parenting plan or 50/50 residential time?  The type of Parenting Plan involved may influence whether a parent decides to pursue a move with the children or whether an agreement outside of Court can be had. 

For parents with an every other weekend schedule or something similar (i.e., there is a clearly defined primary residential parent), the burden will be on the non-moving parent to block the move.  When the primary residential parent under a PareNotice, once an Objection is made by the non-moving parent, a contested hearing will need to be held by the Court.  At the hearing, the moving parent has a significant, often insurmountable built-in advantage, over the non-moving parent.  This is called a "rebuttable presumption" that the move should be allowed.  To overcome the presumption, the objecting parent must demonstrate that detrimental effect of the relocation outweighs the benefit to the child and relocating parent through an assessment of 11 statutory factors under the CRA.  As a result, a tremendous, difficult burden is placed upon the non-moving parent to prove the harmful effects of the relocation, and as such, many primary residential parents are allowed to move with children, often to the heartbreak of an objecting, non-moving parent.
nting Plan wishes to move outside of the children’s school district, Notice is required which triggers application of Washington's Child Relocation Act (CRA). The CRA provides a detailed process for parents intended to move with children.  After

By contrast, for parents that have a substantially shared parenting plan or 50/50 residential time, the burden will be on the moving parent to obtain permission for the move.  In 2017, Division Two of the Washington Court of Appeals determined the CRA does not apply when the children’s residential time is designated equal or substantially equal in the Parenting Plan, and when the intended relocation would result in a change in this designation.  Since the CRA has been found NOT to apply in these circumstances, the moving parent must file a Petition for a Parenting Plan Modification in order to relocate with the children.  In doing so, the moving parent must establish, based upon a substantial change in circumstances, that "adequate cause" for the modification exists.  If the moving parent cannot establish "adequate cause", the petition will fail.  This is a high burden to prove, and may limit or otherwise influence a parent's decision about a prospective move with children.

For any parent who is considering Relocation, Objection to such a move, or a Parenting Plan Modification action, understanding the appropriate legal approach is essential.  Finding an experienced attorney who understands Relocation and Modification cases may be beneficial.

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 Relocation and Parenting Plan litigation and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to discuss about your situation.

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.

Friday, March 30, 2018

BREAKING NEWS!!! Grandparents (and Relatives) Now Have Rights


On Thursday, March 22, 2018, Washington State Governor Jay Inslee signed Senate Bill 5598 into law which gives relatives the right to petition a Court for visitation.  Under the new law, a non-parent relative may request Court-ordered visitation with a child if:

  • The relative and child have an ongoing and substantial relationship; and
  • Denying visitation risks harm to the child.

Relatives include persons related to the child by blood, legal adoption, step and half-siblings and spouses and relatives.  Relatives also include extended family members recognized by a Native American child's tribal law and customs. 

Under the new law, the Court filing shall be in the county of the child's primary residence.  The relative's initial filing must include an affidavit establishing the relationship and facts to support the claim of likely harm to the child if the Court denied the visitation.  Once the relative gets past the "threshold" with their initial filing, the new law requires that Court shall hold a full hearing. 

At the hearing, the Court must grant visitation if the relative proves both likely harm to the child without visitation, and visitation is in the child's best interest.  There are several considerations for the Court, such as:

  • Weigh a presumption that a fit parent's decision to deny visitation is in the child's best interests;
  • Evaluate the reasons the parent opposes visitation with the non-parent relative;
  • Assess a non-exclusive list of best interests factors including (1) love, affection, and strength of the relative's relationship with the child; (2) how the relationship benefits the child; (3) good faith of the parties; (4) physical, emotional, or mental abuse by the relative or anyone residing with the relative; and (5) the child's preference if the Court finds the child old enough to express a preference. 

There are many other nuances of the new law, such as assessment of fees upon the non-parent relative if the request is filed in bad faith or without reasonable basis. 

Prior to the enactment of this new law, loving grandparents and other relatives could not petition the Court for visitation rights.  Their only option was to seek custody, not visitation, through a Non Parental Custody action, or have nothing at all.  The new law is a complete game-changer for families where a beneficially involved relative has been harmfully shut out of a child's life.

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 protect the best interests of children and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your situation.



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.

Friday, March 2, 2018

How to Obtain a Domestic Violence Order of Protection

Overview of Domestic Violence

Definition:

The law defines “Domestic Violence” as physical harm, bodily injury, assault, stalking, or the infliction of fear of imminent physical harm, bodily injury or assault.

To be considered for an ordered protection from domestic violence, the abuse must be between family, household members, or persons in dating relationships.

In Washington State, this includes:
  • Spouses
  • Former spouses
  • Persons who have a child in common
  • Adult persons related by blood or marriage
  • Adult persons who reside together now or have resided together
  • Persons 16 years of age or older who are residing together now or have resided together in the past and who have or had a dating relationship
  • Persons 16 years of age or older who have or had a dating relationship
  • Persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren

What is a Domestic Violence Order of Protection

A protection order does a couple things for you, such as:

  • Ordering the individual not to threaten or hurt you
  • Ordering the individual not to enter your residence
  • It can give one parent temporary custody of children
  • Set a specific schedule for visitation with minor children
  • Ordering the individual to leave the shared residence
  • Ordering the individual to attend counseling
  • Ordering the individual has to surrender weapons
  • Prohibiting surveillance and cyber stalking

A Domestic Order of Protection cannot:

  • Order Child Support
  • Order Spousal Maintenance
  • Establish permanent child custody
  • Make a final disposition of property and debts

How to Obtain a Protection Order


Below is a brief overview of the process of obtaining a protection order. The process can be overwhelming and confusing, and often consulting with an experienced attorney may be helpful.  

How Do I Obtain a DVPO?

A DVPO can be obtained in either the District or Superior Court. Both courts have domestic violence advocates and are available to assist in obtaining both temporary and full orders for protection.

Washington has mandatory forms that must be used to obtain either a temporary or a full DVPO. These forms are available online at https://www.courts.wa.gov/forms/?fa=forms.contribute&formID=16 .

To obtain a DVPO the following forms need to be completed:
  • Petition for Order for Protection: In this form, you must provide the court with information about the identity of the parties, nature of the relationship, and the types of protection you seek to have. You must also describe the specific acts of domestic violence committed by the respondent.
  • Child Custody Information Sheet: If you have a child with the respondent and are asking the court to grant you temporary custody of the child, you must complete the child custody information sheet.
  • Law Enforcement Information Sheet: This form will be forwarded to law enforcement for entry into their database. This will permit the sheriff and police to enforce DVPOs and arrest respondent who violate them. It also assists law enforcement agencies with serving the DVPO on the respondent.
  • Confidential Information Form: This form is required so that the court can input your case into the court's database. It requires you to disclose identifying information about yourself, your children (if any), and the opposing party.
  • Proposed Temporary and Full Orders for Protection: You must submit a proposed temporary and full order for protection to the court. This order must set forth all the specific protection that you want the court to impose.

What If I Am in Immediate Danger?

If you need immediate protection from abuse, you may obtain a temporary DVPO from the Superior Court's Ex Parte Department, or the District Court's Domestic Violence Court. A temporary DVPO may be obtained without providing any notice to the respondent.

What Happens Next?

If you obtain a temporary DVPO, the court will set a hearing on a full order, often about 14 days after the temporary order is issued and served. At the hearing after the considering evidence from both sides, the court will determine whether a full order should be entered. Full orders are commonly issued for one year and can be re-issued each year if there is still a risk of domestic violence to the victim.

After the temporary DVPO has been issued, you will need to obtain certified copies of the DVPO that you should keep with you at all times, as well as provide a copy to your employer, your child's day care or school administrative office, and any other person or agency that should be aware of the order.

You must also arrange for the order to be served on the respondent. Local law enforcement can often assist with service of the order.

Domestic violence is a very serious family problem and has wide-ranging implications on other family law matters such as a divorce or child custody. An experienced attorney can advise you not only on your options for protection from further domestic violence, but also on your options for legally ending your relationship with the abuser. 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, February 28, 2018

Co-Parenting and Extracurricular Activities


Kids these days are more active than ever before.  Between increased school workloads, various after school clubs, extracurricular activities and sports, it’s astounding how busy (and often cluttered) children's lives have become.   While all of these activities may look good on a college application or a job resume as the children get older, the fact is extracurriculars and sports are vital to providing children of any age some sense of normalcy as their parents go through a relationship breakup.  These activities provide the children with opportunities to exercise, socialize with their peers, develop skills for themselves, and just to have plain old fun, away from any parental stresses. 

As a parent going through a relationship break up, it is important to support the children in their pursuits, however this often becomes a point of disagreement as parents go through the family law process.  For example, while in the midst of a divorce (or any relationship break up), one parent may not want a child to play a particular sport or engage in an extracurricular activity due to cost, loss of residential time, or for a variety of other reasons.  Spelling out the particulars for children's participation in these activities can be successfully accomplished  through effectively worded provisions of a Parenting Plan and Child Support Order.

Common Parenting Plan Considerations
  • Is the child's participation in a sport/activity something that is a "joint" decision that both parents decide upon, or can one parent simply sign the child up?
  • Has the child traditionally participated in this sport/activity, or have any desire to do so?
  • What are the consequences if practice, meetings or games occur on a parent's residential time? 

Common Child Support Considerations
  • How will the sport/activity be paid for: proportionally based upon parent's income, equally, or just by one parent? 
  • What if there are private training, travel , equipment, club fees, etc. beyond simply participating in the sport/activity, how are those costs allocated?

Providing your children with an outlet from your relationship breakup with the other parent is paramount to their adaptation and development during a very stressful time.  However, as parents the child's participation should not be a point of disagreement with the other parent, a loss of residential time, nor break the bank.  Discussing these concerns with an experienced family law attorney to establish provisions specific to your needs and the needs of your children is essential. 


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 with Committed Intimate Relationships and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your situation.


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. 

Successful Co-Parenting


Relationship breakups, whether it be divorce, separation or committed intimate relationships, is confusing and stressful for all families, but particularly so for the families with children. It is often difficult for newly separated parents to determine what kind of long-term parenting arrangement will be best for the children once each parent has established their own household.
In family law cases involving children, the court's primary concern is with the best interests of the children. This should be your primary concern as well. Here are some tips that will help you and your former partner co-parent your children as you navigate the process of establishing separate households.

Minimize chaos and establish a routine
Recognize that children are used to their routine and environment, try your best to maintain the routine as you all adjust to living in two households. Establish a "new normal" that reflects the old normal as much as possible.
Every family is different and there is no perfect formula for determining the right visitation schedule for a given family. An experienced family law attorney can help you develop a fair, balanced plan that is both tailored to your kids' needs and legally realistic.

Be consistent
Whether you have an informal or court-ordered schedule for time with your children, be sure to take that time on a consistent basis. If you absolutely must miss an opportunity to spend time with your children, be sure to contact the other parent right away and establish a time to make up for the missed visit.
Parental consistency and stability for children are also critical concerns for family law judges and commissioners when making custody decisions. Failure to follow your schedule for visitation could be harmful to your case and is certainly not good for your children.

Shield your children from conflict
It's also important that both you and the other parent make every effort to shield your children from legal proceedings, and from parental conflict.
In general, without casting blame, stick with age appropriate explanations of why one parent is no longer living at home. It’s very important to soothe a child's fears and confusion about the changes in his or her life, but your kids don't need to know the details of their parents' adult relationship.
Absolutely avoid getting into an argument with the other parent in the presence of your children. Address any grievances you may have with the other parent directly, privately, and as calmly as possible.
A formal parenting plan with specific provisions governing exchanges of your children can help you minimize face-to-face contact if you and your spouse are simply unable to interact without hostility.
Counseling is also a beneficial way to help the children and the whole family get through this difficult time.

Communicate (cautiously) in writing
Email and text messages are convenient ways to communicate with your spouse about your goals, concerns, and upcoming plans for your kids. There are several easy to use Co-parenting apps that can help parents establish a written record and reduce hostility, confusion and miscommunication.
But, most importantly - think before you click "send." Don't write or publish anything that you would not want a judge to hear. This also applies to social media sites such as Facebook, Twitter and Instagram. Composing a long rant about your spouse's many flaws as a partner and parent might make you feel a little better in the short term, but your words are counterproductive to co-parenting.
If you’re unsure about how to best communicate with your spouse, the advice of an experienced family law attorney can provide you with a strategy for communicating with your spouse in a productive and effective manner.

Keep your focus on your kids
If the end of your relationship has been tough on you, just imagine how difficult it is for your kids. They're worried about you and they're worried about what is going to happen to them.
Check in with your kids to see how they're feeling. Talk to their teachers, coaches, and counselors, and work with them to make sure your kids aren't falling behind in school and other important activities. Try to be 100% engaged during your one-on-one time, even if you are feeling resentful or upset about the end of your relationship.
The benefits of continuing to be an involved parent no matter your relationship status, are intangible and invaluable to your children. Staying focused on your kids' needs not only strengthens your legal position, it also helps your children feel secure in an uncertain time.

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 litigation and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your situation.



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 relations

Temporary Orders: Temporary Relief or Temporary Problems?

 
In contested Family Law cases of any type (Dissolution, Legal Separation, Parentage, Committed Intimate Relationships, Parenting Plan or Child Support Modification) parties often go to court for Temporary Orders.  The Temporary Orders govern the parties rights, duties and responsibilities before it is finalized as the case is pending.  Temporary orders can address a wide range of temporary relief, such as Restraining Orders, Parenting Plans, Spousal and Child Support, who pays what bills, who can use what items of property (such as vehicles, or occupancy of a family home), and more.  Typically, Temporary Orders last in duration until another order is entered; most commonly that is when the final orders are presented to conclude a case.

So what does a party do, if they disagree with the terms of a Temporary Order?  Generally speaking there are 3 options: Motion for Reconsideration, Motion for Revision and a Motion for Modification of the Temporary Order.


Motions for Reconsideration of Temporary Orders

These types of motions are authorized under Civil Rule 59 and provide for a party to seek relief under several specific factors.  Some of those factors are as follows:  accident or surprise, newly discovered evidence, error in law, misconduct or simply that substantial justice had not been done.  A Motion for Reconsideration must be brought within 10 days of entry the Temporary Order.  Also, a Motion for Reconsideration will be decided by the same judicial officer who entered the Temporary Order.  Some Washington State Superior Courts have specific local court rules on the procedure involved for a Reconsideration Motion, so it is best to consult with an attorney familiar with that county's process for a Reconsideration Motion.

Motions for Revision of Temporary Orders

These types of motions are authorized under RCW 2.24.050 and provide for a party to have a Judge revise what a Court Commissioner did in entering the Temporary Order.  In several counties, Court Commissioners decide many Family Law issues.  If one believes that the Court Commissioner made a mistake in the entry of the Temporary Order, a Motion for Revision to have the matter decided by a Superior Court Judge may be appropriate.  A key distinction between Motions for Revision from that of Reconsideration is that a Motion for Revision is brought before the Superior Court Judge on the same evidence that was before the Court Commissioner.  In other words, no new evidence can be filed to support a Motion for Revision.  Similar to Reconsideration, a Motion for Revision must be brought within 10 days of entry of the Temporary Order.  Also, as with Reconsideration, some Washington State Superior Courts have specific local rules on the procedure involved for a Motion for Revision.  As such, it is again probably helpful to consult with an attorney familiar with that county's process for a Revision Motion.  

Motions for Modification of Temporary Orders

These types of motions are brought when there has been a significant change in circumstances of the parties since the time that the Temporary Order was entered.  Some examples might be that the primarily residential parent gets a DUI with children in the car, or a person paying support through no fault of their own, lost their job, etc.  As with the above motions, consultation with an attorney is very important.  

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 with their divorce and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your situation.

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, February 14, 2018

Trump's Tax Plan Has HUGE Implications Upon Divorce

In Washington State, when a party to a divorce is ordered to pay support (also known as maintenance, or alimony) to a former spouse, that payment is tax deductible.   This means the party paying support ("payor") receives a tax benefit for the amount paid and the party receiving support ("payee") must pay taxes as earned income.  However, the current tax system is about to undergo a big change.

Currently, divorce settlement is often reached when the parties agree to larger payments of support at a lesser after-tax cost to the payor.  This is often seen as mutually beneficial for both parties as the payor receives the benefit of a reduced tax obligation and the payee receives the benefit of more income than might otherwise be forthcoming if the payee spouse was not receiving the tax deduction benefit.  This will all change under the new tax plan.

Beginning in 2019, payments for spousal support will no longer be tax deductible for the payor. Additionally, the payee will no longer be taxed on the amount received.  This will create a total re-evaluation of some divorce cases, as the higher earning spouse will now have increased leverage to argue for a lower support payment. 

There are still some financial benefits that will remain for divorced spouses.  For example, upon retirement, a person can claim spousal Social Security benefits based on the earnings of a former spouse, provided the couple was married for at least 10 years and the claimant remains unmarried. 

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 with complex property settlement and spousal support issues and can help you through the process. Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your situation.




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.