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.

Sexual Assault and Social Media

For victims of Sexual Assault, Internet trolling of their social media is often commonplace. Postings from Facebook, Instagram, and other social media sites are often used against the victim as the matter heads to Court. Social media may be used to undermine the victim’s credibility, and to otherwise cast doubt about their claims of sexual assault.

Caution should be taken whenever using social media, as even when a post is deleted from an account, it may be accessible somewhere else. 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. Please see more information regarding social media at Use of Social Media in Family Law.

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. For reference please see the chart below and Sexual Assault Protection Order.

Who Can Bring an Action

• A person who does not qualify for a Domestic Violence Protection Order, and is a victim of nonconsensual sexual conduct or nonconsensual sexual penetration, including a single incident, may petition for a civil order. Minors under age of 16 with parent or guardian. Courts may appoint a Guardian ad Litem for either Petitioner or Respondent at no cost to either party.

Notice to Respondent

• Notice of Civil Order served on the Respondent. Notice by certified mail, or publication authorized in limited circumstances.

Violation of Court Order

• Mandatory arrest for violating restraint and exclusion provision. Possible criminal charges or contempt. Class C felony if assault or reckless endangerment, otherwise Gross Misdemeanor.

Duration of Order

• Temporary Civil SAPO--14 days with proper service. Full Civil SAPO--Designated by Court up to two years. Criminal Orders--Designated by Court.

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. 

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.  

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.

RCW 26.09.210

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.