Tragically, domestic violence is a frequent part of family law proceedings. Many victims of domestic violence think, "I should get a restraining order," but do not know where to start, how such an order might work, or how it might impact a divorce. This is a deep topic, but I will do my best in this entry to discuss the basics.
In Washington, any party who is the victim of domestic violence can file a petition for a domestic violence protection order. The term "domestic violence" may seem pretty clear-cut, but it isn't always so easy to discern.
The term includes "(a) Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, sexual assault, or stalking... of one intimate partner by another intimate partner; or (b) physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, sexual assault, or stalking ... of one family or household member by another family or household member."
The obvious definition is harm and bodily injuries, but it also includes situations where no actual physical contact happened, but the victim was in fear that violence was "imminent" (meaning that it could have occurred at any moment). In many instances, perpetrators of domestic violence create these imminent threats without physical contact to create the fear but avoid consequences like jail. Victims of domestic violence may struggle to clearly articulate the several facts that made up their very real and reasonable fear of violence. (Attorneys and domestic violence advocates can be very helpful in fleshing out these details.)
This distinction is important, because many people labor under the misperception that these orders are only available if they have been the subject of actual, physical violence. That is not true - the Court does not wait for the harm to actually occur before it takes action, but people do have to justify why the violence was/is imminent.
These orders are governed by RCW Chapter 26.50, which should be consulted for full details. In essence, if someone is the victim of domestic violence they can petition for a protection order. The protection order can do several things - the most basic is to bar the perpetrator from contact with the victim of the violence. The protection order can also do things like exclude the perpetrator from the home, the victim's work, school, or other places where they might be. The orders can also temporarily allocate custody of children or use of property. In severe cases, the orders can also require the perpetrator to surrender all firearms or weapons to law enforcement.
In Snohomish County, the process is started by filing a petition along with any supporting evidence. (There are specific forms to be used to do this and a court facilitator in the courthouses to help. You can also access resources through local law enforcement.) The forms are brought to a Commissioner, who reviews them and determines if there is enough evidence to enter what's called an "ex parte protection order," which just means one entered without the other side present to hear their side of the case. A review hearing is set in two weeks so the restrained party can be served and submit their responding evidence.
In Snohomish County Superior Court, the initial hearing and the review hearing are all based on written statements. Live testimony is not typically taken. In the municipal courts, live testimony is taken more often but they still rely heavily on written declarations. The Court will hear the evidence at the review hearing and either grant the protection order (typically for a year) or dismiss it.
If a perpetrator of domestic violence violates this order, this is a crime. Law enforcement will respond to a report of a violation and, upon finding probable cause, will arrest the person doing it. This is different from a normal civil court order, where the Court would not do anything until the protected party filed a contempt motion. The whole purpose of these orders is for a victim of domestic violence to obtain a prompt response from law enforcement if it is needed.
(It should be noted that "contact" does not just mean physically being in the protected person's space; it can also mean calling, texting, sending social media messages, or having third parties send messages to the protected party.)
A common misconception of these orders is that they are bilateral - meaning either party will go to jail if they contact the other party. Courts will rarely enter bilateral orders (although they sometimes do). Typically, the restrained party will be the only one arrested for violating an order. With that said, protected parties are strongly advised not to initiate contact with the protected person, because this will greatly weaken any future claims to extend the protection order, may assist the restrained party in getting the order modified, and may persuade a prosecutor not to prosecute violations of a protection order.
Where does this all relate to family law?
One of these orders can be sought outside a divorce, or within the context of a divorce. The effects are the same. The difference is that in protection order case outside of a divorce, the Court can't do things like enter detailed parenting plans, appoint guardians ad litem for children, order child support, or order alimony. If a protection order case involves separating parties and children, the Court will typically write "subject to orders in divorce proceeding" in the order - the idea being that the divorce court will have more information to address some of these issues.
A party in a divorce should think very carefully about seeking one of these orders. In situations where there is real danger, orders must be sought, but there are many situations where other court orders might accomplish the same goal. A party also has to be aware of the fact that a protection order will have an impact on other parts of a case. For example, the protection order will show up on the other party's record. This might result in loss of job or even loss of an entire career - this can be financially catastrophic if the restrained party is the primary breadwinner. In these situations, an attorney might come up with an order in the family law case that has the same general effect of a protection order but without all the permanent records and loss of rights associated with a proper protection order.
As I stated, this is a complicated and deep topic. I've only scratched the surface here. Regardless, these are important safety tools and they keep communities safer. If you or a loved one has been subjected to domestic violence, please do not hesitate to contact a community resource or legal professional to get help.
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