Wednesday, July 26, 2017

The Role of the Parenting Plan in Child Custody Cases in Washington


A graduate of the Seattle University School of Law and the University of Washington, Raj Bains has been practicing law for over 25 years. Based in Federal Way, Washington, Raj Bains represents clients in divorce and child custody matters at the Bains Law Firm. 

In a divorce with minor children, both spouses need to consider the importance of creating a parenting plan. A parenting plan will determine how much time each spouse spends with the children. A parenting plan will also determine who has primary custody, where the children live, and where the children spend the holidays. The plan can set forth who is responsible for transportation and other major decisions. A parenting plan, once signed by the court, will determine how the parents will be co-parenting after the divorce.

The primary caregiver is the parent who will have the children most of the time. The Court decides, who will be the primary caregiver, based on what is in the best interest of the child. The best interest of the child is a legal standard that the Court follows, consisting of many factors.

When making decisions about how to draft a parenting plan, consider the implications of each decision. Every family is different and the needs of each family differ as well. Both spouses should consider a reasonable parenting plan not only suitable for their needs but that which serves the best interest of the child.

Monday, June 26, 2017

Use of Social Media in Family Law



June 23, 2017 - Bains Law Firm

Facebook, Instagram, Snapchat, Twitter, LinkedIn, Pinterest, Tumbler, Youtube, etc.:  These are just a handful of Social Media platforms from which communications can be, and often are, used in Court as evidence. In our increasingly digital age, it is quite common for Social Media communications to be used in Family Law cases, especially those that involve Protection Orders or Parenting issues.

Individuals who use Social Media freely post pictures, videos, comments, or status updates, often without considering the risks and dangers of current or future litigation. Even when a post is deleted from an account, it may be accessible somewhere else. Caution should be taken with every Social Media post or communication, even if it is believed to be private. Being aware of the audience is important because even a “blocked” person can access a post through a third party.  Or a person could be unknowingly "tagged" in an embarrassing photo which is used against them at a later time.  Even something such as a dating profile from Match.com, Tinder, eHarmony, etc., can be used as evidence in Court.

The point needs to be stressed:  A person does not need to be online "friends" with another person for a damaging Social Media post to end up in the Court record.

Generally, Social Media evidence is often admitted in Court unless it has been acquired by fraud or some other impermissible means, such as someone hacking into an account.  As a result, being mindful of what to put online and what not to post, is very important for individuals engaged in Family Law litigation.
A general rule of thumb is to act as if every post may become public and presented to the Court. Only use language and information that is presentable to a judge. Avoiding posting on Social Media at a time of extreme emotional upset, frustration or anger is generally prudent.

Deleting Social Media accounts is not necessary, but being attentive to what is posted is vital, especially when involved in ongoing litigation. Recently, the use of Social Media as evidence in Court has increased substantially.  According to a national survey of family law attorneys:

81% have seen increased use of evidence from social networking websites.
66% of the evidence used was found on Facebook.

And it's not just postings on Social Media.  That same national survey also found that 92% of attorneys had an increase in cases using evidence taken from smart phones in the past few years.  So if a person is in the middle of litigation, they should be careful as to every text, email or other communication that is sent to the opposing party.

Social Media posts, photos or other messages can be used for a variety of reasons in Court, such as to contradict statements made in Court or pre-trial disclosures. For example:



If a party claims not to have a substance abuse problem, but they have numerous postings of partying, bar hopping or worse.
Example: “Enjoying Happy Hour cause it’s Wednesday!”






Avoid statements or photos that may be intended for other reasons but also might demonstrate inappropriate parenting.
Example: "Family Vacation to the Beach", yet the driver is distracted and seatbelt is around the child's neck.






A claim of financial need can be easily undermined with photos of frivolous spending Example: "Love my New Boat!"







In Family Law cases, the above examples are merely a few of the countless ways that Social Media posts can be used to damage a party's legal position.

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

Anti-Harassment Protection Order


June 26, 2017 - Bains Law Firm 

Family law litigation often involves the need for protection of property or from the other party.  There are several different types of protection and restraining orders, including a general Restraining Order, Domestic Violence Protection Order, Sexual Assault Protection Order and Anti-Harassment Protection Order. Much of the protections available to litigants seeking general Restraining or Domestic Violence Protection Orders are also available to persons seeking an Anti-Harassment Protection Order.

By statutory definition unlawful harassment means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose.  Such conduct would cause a reasonable person to suffer substantial emotional distress, or when the course of conduct would cause a reasonable parent to fear for the well-being of their child.

Anti-Harassment Protection Orders tell the abuser to stop harassing you.  Unlike general Restraining Orders or Domestic Violence Protection Orders, a victim does not have to have any specific type of relationship with the abuser.  The abuser can be a neighbor, acquaintance, co-worker, etc.  Therefore, if the victim does not meet the requirements to obtain a general Restraining Order or Domestic Violence Protection Order due to the relationship (i.e., spouse or intimate partner) with the abuser or due to the fact that the harassment doesn't meet the definition of domestic violence, the victim may be able to file for an Anti-Harassment Protection Order instead.  
When a victim of unlawful harassment seeks protective relief from the Court, they need to be as specific as possible about how the abuser has engaged in harassing behavior and the harmful effects on the victim.  The unlawful harassment complained of cannot be a single incident, but a course of conduct (i.e., a series of acts).

In emergency situations, an ex parte temporary Anti-Harassment Protection Order is necessary. Such an order is often granted upon a showing of reasonable proof of unlawful harassment, and that severe or permanent harm will happen to the victim if the Order is not issued right away.  This temporary protection order will be effective immediately, and the offending party does not have to be in the Courtroom at this hearing.  A temporary Anti-Harassment Protection Order will typically last fourteen (14) days at which time a full hearing will be had.  At a full hearing, the offending party will have an opportunity to be present and provide a defense against the allegations. Both sides will be able to present evidence and provide testimony.

Upon a full hearing, an Anti-Harassment Protection Order will generally last for one year unless the court finds that the abuser is likely to continue the unlawful harassment when the Order expires.  In such a case, the Court can make the order for a fixed (specific) amount of time or even make it permanent.
There are limitations upon what the Court can do when granting an Anti-Harassment Protection Order.  For example, the Order cannot prevent the abuser from exercising constitutionally protected free speech.  However, the Court can enter an Order which prohibits the abuser from contacting the victim or keeping the victim under surveillance, and/or set forth a distance requirement to keep the abuser away from the victim's home or workplace.

An experienced attorney sensitive to what are often embarrassing issues associated with unlawful harassment can be of great assistance in seeking relief in a Anti-Harassment Protection Order.

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 protection orders and can help you through the process. Contact us today at (253) 838 – 3377 or email at www.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.

Sexual Assault Protection Order

June 6, 2017 - Bains Law Firm


Family law litigation often involves the need for protection of property or from the other party.  There are several different types of protection and restraining orders, including a general Restraining Order, Domestic Violence Protection Order, Sexual Assault Protection Order and Anti-Harassment Protection Order. Much of the protection available in a Domestic Violence Protection Order is also available to victims seeking a Sexual Assault Protection Order.

Protection orders in sexual assault cases generally involve situations where "nonconsensual sexual conduct" or "nonconsensual sexual penetration" is alleged to have occurred.  Specific definition of these terms can be found at RCW 7.90.010.  Commonly, litigants are under the age of 16, and Sexual Assault Protection Orders can address transfers of schools when the parties are students.

In emergency situations, an ex parte temporary Sexual Assault Protection Order is necessary. This protection order will be effective immediately, and the offending party does not have to be in the Courtroom at this hearing.  A temporary Sexual Assault Protection Order will typically last fourteen (14) days at which time a full hearing will be had.  At a full hearing, the offending party will have an opportunity to be present and provide a defense against the allegations. Both sides will be able to present evidence and provide testimony.

Sexual assault usually involves power, money or control.  In some cases, a combination of some or all three of these elements are present.  Sexual assault is an act of violence and domination by perpetrator and sexual gratification is often a secondary goal.  According to national and state surveys:

  • Every 107 seconds an American is sexually assaulted.
  • Up to 32% of women and 10% of men were victims of childhood sex abuse.
  • The majority of male and female rape victims knew their perpetrator (some studies say 84%)
  • Only 2-8% of sexual assaults are falsely reported.
  • 80% of Washington State women's sexual assaults occurred prior to the age of 18.
  • More than 33% of women in Washington State have been sexually assaulted in their lifetime.


An experienced attorney sensitive to what are often intimate, embarrassing or humiliating issues associated with sexual assault can be of great assistance in seeking relief in a Sexual Assault Protection Order matter.

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 protection orders 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, 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.