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.

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.

Co-Parenting Apps

September 1, 2017 - Bains Law Firm 

In our digital age, there are many different types of Co-Parenting Apps that can provide a mechanism for divorced parents to synchronize co-parenting, and alleviate the need for direct communication which can often degenerate or stray from focusing upon the children. Some apps provide shared diaries, expense records, and even children’s profiles. Finding the right Co-Parenting App can simplify and organize all Co-Parenting issues.

Here are a few of the options that are available:

Our Family Wizard

This tool offers shared messages, the ability to communicate expenses and update the other parent about routine items such as a well child check up. There is also a journaling function which can reduce conflicts and keep a record. The App also includes a calendar, message board, expense log, journal, and information bank for safe storage of family information. Another bonus feature is a notification center for emails and texts,                                                 allowing a reminder for upcoming events.

Kidganizer

This App features expense management, family management and Parenting Plan management, all with alerts. Similar to other Apps, keeping track of financial expenses is a necessary function when a Child Support Order requires proportional sharing of child-related expenses. As well as the real-time calendar and alerts, this app will make missed appointments a thing of the past.

Parenting Apart

This App does not provide tracking for particular issues, but is designed to provide emotional support. It includes features such as emotional stages for parenting and children, adjustment issues, parenting apart challenges, and some inspirational advice. In some situations, a website may be better suited to facilitating Co-Parenting.

Remind

This App allows teachers to create an account and allows parents to join simply with a single text message. Some features include reminders of class events and daily activities. This is a great way for both parents to stay in communication with their child’s school teacher and keep track of school activities.

TalkingParents.com

This website and App will allow the parents to keep a complete record of all communications between parents. In highly contentious parenting situations, this can be useful for future litigation as it will provide a record of the real facts. This App (and website) will also allow the parents to communicate regarding the children without the need for face to face dialogue. In high-conflict situations, parents may be court-ordered to communicate exclusively through this website.

Each App has positive and negative aspects. Finding the right App to ease the complexity of Co-Parenting to fit each parent’s unique situation is important. Ultimately, simplifying a complex situation and producing a record of all Co-Parenting activities can ease the process and provide useful evidence in the event of a future conflict.

In Washington State, a divorce with minor children, both spouses need to consider the importance of creating a Parenting Plan and the day to day and long term implications of having such a Plan. Increasingly, more and more Parenting Plans are including the use of Co-Parenting Apps for parents to maximize effective communication.  

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 establishing, modifying and enforcing Parenting Plans 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

Alcohol and Substance Abuse in Parenting Plans

August 28, 2017 - Bains Law Firm

Alcohol or Substance Abuse issues often need to be addressed when establishing or modifying a Parenting Plan. Protecting children from exposure to the harmful effects of Alcohol or Substance Abuse often involves placing restrictions or limitations upon a chemically dependent parent.  There is no uniform rule as to what type of restrictions or limitations to impose upon this parent; instead, each case is different and the types of restrictions or limitations will depend upon the severity of the parent's chemical dependency and resultant negative effects upon the children. 

In the most extreme cases, a Parenting Plan may have provisions that restrict all contact with the children.  In these cases, a parent is usually an active addict who cannot maintain sobriety long enough to exercise visitation with the children in a safe manner.  Although contact may be completely restricted, it is usually temporary, as the Court will often provide a roadmap for even the most extreme chemically dependent parent to navigate their way back to having access to the children.  In such cases, in order to gain some visitation, the chemically dependent parent may be required to undergo treatment (in-patient or outpatient) usually in combination with a comprehensive chemical dependency evaluation.  In these circumstances, following treatment recommendations and maintaining demonstrable sobriety (through urinalysis and hair follicle testing) is of the utmost importance. 

The roadmap provided by the Court in a Parenting Plan is designed to increase contact between the chemically dependent parent and the children so long as the parent is progressing in their recovery.  In doing so, there is likely to be a Phased-In Visitation Schedule.   Beginning at the most restrictive limitation of no contact, the chemically dependent parent may progress to professionally supervised visitation, to lay supervision, to daytime visitation without supervision, and ultimately to having some overnight visitation so long as recovery is progressing.  Any relapses will usually move a parent backward to a prior, more limiting Phase of the Visitation Schedule.  Setting forth incremental increases in visitation in the Parenting Plan often provides the chemically dependent parent with ample motivation to maintain their sobriety as their access to the children will be expanded consistent with their recovery. 

In other less serious cases, when contact is not completely restricted, a wide range of limitations upon a chemically dependent parent may be used to protect the children from the harmful effects of that parent's addiction.  These range from supervised visitation, daytime visits only, or simply that the parent not drink or use non-prescribed medication immediately prior to and during their visitation time.  Typically, a chemically dependency evaluation may be recommended for that parent.

In cases where Alcohol or Substance Abuse is suspected but not confirmed, drafting language that prohibits either parent from using alcohol or non-prescribed medication prior to and during visitation time may be necessary. Having such language in the Parenting Plan will sometimes go even so far as to allow the other parent to demand an immediate urinalysis if Alcohol or Substance Abuse is suspected at a visitation exchange.

In any situation where Alcohol or Substance Abuse is a concern, drafting the appropriate language in a Parenting Plan to maximize the children's protection from harm is paramount.

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 dealing with protecting children from the harmful effects of chemical dependency 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

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

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.

Washington State Family Law & Divorce: Mediation - Settlement Conferences

March 3, 2017 – Bains Law Firm

Most family law cases are resolved through mediation (also known as a settlement conference). This eliminates the need to go through a trial which is very costly and emotionally draining.  Both Pierce County and King County require the parties to participate in mediation, before a trial even can take place.

In mediation, the parties can resolve all issues to avoid trial. One of the biggest advantages to resolving a case though mediation is that the parties can address their unique family law situation with specificity. No two divorces, child custody, or support cases are alike and mediation allows the parties to craft detailed provisions in their agreements tailored to their particular family. This is in stark contrast to a trial, when a judge usually does not have the time or resources to devote to one particular case beyond generally entering basic court orders. By way of analogy, it has been said that mediation is akin to using a scalpel, whereas trial is more like using an axe. 

A mediator is a neutral third party, who will not provide legal advice to either party and mediation sessions are confidential by court rule. The mediator’s role is to find common ground and to assist the parties in reaching an agreement.

In Pierce County, the Court requires a mediation to take place before trial, in accordance with PCLSPR 94.04

PCLSPR 94.4 (d): Settlement conferences are mandatory in dissolution cases, paternity cases, other family law cases and post dissolution petitions for modification (petition to change a parenting plan, residential schedule, or custody order) when the parenting plan or residential schedule is at issue. Settlement conferences are not mandatory for chases addressing only child support and/or division of property and assets and family law cases in which a waiver was granted pursuant to local rules.

In King County, there are similar requirements.

LFLR 16 (a). Alternative Dispute Resolution Required. Except in cases involving domestic violence, child support only modification, or where waived by the court order, the parties in every case shall participate in a settlement conference, medication or other alternative dispute resolution process conducted by a neutral third person no later than thirty (30) days before trial.

Family law litigation, including mediation, 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 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.