Washington State HB 1565 – Modifying/Terminating The Domestic Violence Protection Order
DOMESTIC VIOLENCE DEFINED. Domestic violence is defined as “(a) Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members; (b) sexual assault of one family or household member by another; or (c) stalking . . . one family or household member by another family or household member.” RCW 26.50.010. According to Snohomish County Human Services, “domestic violence is abuse by one person in a current or former intimate relationship in order to maintain power and control over the other person. The abuse can take many forms, including physical, sexual, verbal, social, economic, emotional, psychological, and environmental. It is: learned behavior; often repeated and escalated; coercive and targeted; present in all ages, races, ethnicities, cultures, sexual orientations, religions, economic levels, and educational levels; and, it creates an environment of fear and intimidation.”
PROCEDURE. To protect an individual or family member from domestic violence, the victim may file a Petition in District or Superior Court and ask for immediate protection (ex parte). If granted, the Court will issue a Temporary Order for Protection and set a hearing to consider whether or not the protection order should continue (i.e., grant an Order for Protection). This order, in most instances, needs to be personally served on the perpetrator by someone of suitable age, including law enforcement. At the hearing, the Court will consider the petition, any other documentation filed with the Court by either party, and hear testimony of the parties. If the Court finds it is more probable than not (preponderance of evidence) that domestic violence has occurred, it will issue an Order for Protection, the scope of which, including contact, restraints, and length of time is established.
PROPOSED LEGISLATION. In response to recent case law, HB 1565 has been introduced (i.e., proposed) to deal with the issue of when an Order for Protection may be modified or terminated when the Order for Protection is permanent or issued for a fixed period exceeding two years. To modify or terminate such an order, the requesting party must demonstrate, by a preponderance of evidence, that there has been a substantial change in circumstances such that the perpetrator is not likely to resume acts of domestic violence against those protected under the Order for Protection. There is no burden on the protected party to establish he or she is in current fear of imminent harm by the perpetrator. Thus, the burden rests solely on the perpetrator to establish a substantial change in circumstances.
FACTORS TO MODIFY OR TERMINATE A PROTECTION ORDER. To assist the Court in making a determination on whether or not there has been a substantial change in circumstances, the Court considers several factors, including, but not limited to the following, since entry of the Order for Protection: whether the perpetrator has committed or threatened domestic violence, whether the perpetrator has violated the order for protection, whether the perpetrator has exhibited suicidal ideation or attempts, whether the perpetrator has committed criminal acts, whether the perpetrator has entered into domestic violence treatment or counseling, whether the perpetrator has sought treatment for drugs/alcohol (if applicable to the Order for Protection), whether the victim consents to the modification/termination, and, the distance between the perpetrator and victim.
TAKE DOMESTIC VIOLENCE SERIOUSLY. Domestic violence is a serious issue. It can take the form of physical, emotional, and sexual abuse. At its heart is a behavior of power and control over an intimate partner. It can happen to anyone. In an emergency, call 9-1-1, find a safe place for you and the children, and seek medical attention if necessary. Washington State hotline: 800.562.6025. National hotline: 800.799.7233.
Beresford Booth 425.776.4100 www.beresfordlaw.com