Domestic Violence InformationGuidelines for Domestic Violence Protection and Antiharassment Orders
Guidelines for:
Barriers to victims leaving
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Civil protection orders1. Jurisdiction Superior, District, and Municipal Courts may issue temporary and permanent orders, except District and Municipal Courts must transfer certain cases to Superior Court after entry of a temporary order. RCW 26.50.010 (4) and RCW 26.50.020 (5). 2. Transfer of jurisdiction
3. Availability Available under RCW 26.50 (civil protection orders), RCW 26.09 (dissolution and legal separation), RCW 26.10 (third-party custody), and RCW 26.26 (paternity). RCW 26.50.025. 4. Parties “Family or household members” includes:
5. Definition “Domestic violence” means physical harm, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking. RCW 26.50.010 (1). 6. No contact No contact requested? Is some contact desired? If so, be specific as to what is restrained. RCW 26.50.070. 7. Exclusion — location Exclusion from a location requested? Petitioner’s residence, workplace, school, or child’s daycare or school. RCW 26.50.060 (1) (b) and RCW 26.50.070. 8. Prohibition — distance Prohibition from a specified location requested? Set the distance from the specific locations so law enforcement can reasonably measure and enforce, i.e., 100 feet or 100 yards. RCW 26.50.060 (1) (c) and RCW 26.50.070. 9. Children
10. Personal property Court has jurisdiction to award:
11. Firearms
Note: Federal firearms prohibition applies when: (1) the person had actual notice of the hearing and an opportunity to be heard;(2) the order restrains the person from harassing, stalking or threatening an intimate partner or child; and either (3) the court finds the person presents a credible threat of harm to the intimate partner or child or (3) the order contains explicit language restraining the person from using, attempting to use or threatening to use physical force against the intimate partner or child.18 USC 922(g)(8). The majority of permanent orders entered will invoke the federal prohibition, but the federal definition of an “intimate partner ” only includes a spouse, former spouse, other parent of a child, or a cohabitant or former cohabitant.18 USC 921(32). Washington protection orders can al so be issued in cases involving relatives by blood or marriage and dating relationships.
12. Duration Fixed period or permanent unless children involved, then one year if the order is issued under RCW 26.50, but can be otherwise under RCW chapters 26.09, 26.26 and 26.10. RCW 26.50.060 (2). 13. Realignment of the parties Mutual orders are not allowed, but the court may realign the designation of the par ties where the court finds the original petitioner is the perpetrator. RCW 26.50.060 (4) and (5). 14. Evidence rules Evidence rules do not apply. ER 1101(c) (4).
Oral instructions to accompany entry of protection orders
Criminal no-contact orders1. Availability May be issued before, after, or concurrent with civil protection orders. 2. Pre-arraignment Order may be issued after an arrest or a charge. RCW 10.99.040 (2). Expires at arraignment or within 72 hours if no charges filed. RCW 10.99.040 (5). 3. Arraignment Court may extend the pre-arraignment order or issue a new one. Order expires if charges are dismissed or upon acquittal. RCW 10.99.040 (3). 4. Post-trial Order may be issued after a finding of guilt. Expires upon termination of the sentence or elimination of that condition of the sentence. RCW 10.99.050 (1).
Antiharassment orders1. Jurisdiction District Court is primary and Superior Court has concurrent jurisdiction to accept transfers. RCW 10.14.150. 2. Transfer of jurisdiction
3. Petitioners Petitioners do not need to establish a special relationship to the respondent and can include parents of minors under 18 years of age requesting an order restraining an adult. RCW 10.14.040 (6). 4. Minor petitioner — minor respondent Parent or guardian may request an antiharassment order on behalf of a minor against a respondent who is less than 18 year of age who has committed or been investigated for an offense against the minor. RCW 10.14.040 (7). 5. Unlawful harassment “Unlawful harassment” requires a knowing and willful course of conduct that seriously annoys, alarms, harasses, or is detrimental and serves no legitimate or lawful purpose. “Reasonable person” or “reasonable parent” standard. RCW 10.14.020 (1). 6. Relief available Antiharassment order may:
7. Duration One year maximum unless the court finds the respondent is likely to resume harassment once the order expires, then it can be for a fixed or permanent duration. RCW 10.14.080 (4). 8. Violations Violations by adults are gross misdemeanors or punishable by contempt. Violations by respondents less than 18 years of age are punishable by contempt under RCW Chapter 7.21. RCW 10.14.120.
Minors as parties in DV or antiharassment cases
Perpetrator treatment1. Availability May be ordered as part of a civil protection order. RCW 26.50.060 (1)(e). 2. Certified program required Treatment by an agency certified under WAC 388-60 should be required. RCW 26.50.150. 3. Anger management Anger management classes are not appropriate for perpetrators and are not certified. 4. Other types of counseling Marital, couple, and religious counseling are not appropriate for perpetrators as they implicate the victim as part of the problem.
Modification/termination requests1. Procedure Require notice and hearing. RCW 26.50.130. 2. Court discretion Public policy gives the court discretion to modify, terminate, or maintain the order. State v. Dejarlais, 136 Wn.2d 939,969 P.2d 90 (1998). 3. Educate petitioners Educate the petitioner on the alternatives to termintion of the protection order such as eliminating portions or modifying restrictive language. 4.Dismiss with grace Dismiss the petition, not the petitioner. Remind the petitioner that the court is always available in the event an order is needed in the future.
Foreign protection orders1. Definition “Foreign protection order” means an injunction or order related to domestic or family abuse, sexual abuse, or stalking. RCW 26.52.010 (3). 2. Applicability Applies to civil or criminal orders issued by a court of a state, a U.S territory or possession, Puerto Rico, the District of Columbia, the U.S. military, or a Native American tribe. RCW 26.52.010 (3). 3. Validity The issuing court must have jurisdiction over the parties and subject matter, and the person under restraint must be given notice and the opportunity to be heard. RCW 26.52.020. 4. Washington State filing unnecessary Filing is not a prerequisite to enforcement in this state, but the clerk must file a proper foreign protection order without a fee if requested. RCW 26.52.030 5. Child custody disputes Child custody disputes are resolved by applying RCW Chap.26.27 and the PKPA 28 U.S.C.1738A. RCW 26.52.080 (1). 6. Writ of habeas corpus Writ of habeas corpus must be issued from a Superior Court in Washington in order for law enforcement to remove the child from his or her current placement absent abuse or neglect. RCW 26.52.080 (2). 7. Violations Violations are punishable under RCW 26.50.110. RCW 26.52.070.
Barriers to victims leaving1. Perpetrator violence Perpetrator’s escalating violence and control. 2. Economic barriers Lack of housing, loss of income for self and children, loss of health, transportation, or other resources. 3. Protection of the children Connection to the perpetrator through the perpetrator’s access to the children. 4. Lack of support Religious, cultural, or family values that the family unit must be preserved at all costs; or victim blaming by service providers, law enforcement, or the courts. 5.Effects of trauma Immobilization by psychological and physical trauma. 6. Inadequacy of court response Failure of court to hold perpetrators accountable or protect victims.
Web sites and resources
Written by Commissioner William G. Knebes, 2001, and reviewed by several judges and domestic violence experts, for the Washington State Administrative Office of the Courts. This project is supported by Grant #96-WR-NX-0017, awarded by the Violence Against Women Office, Office of Justice Programs, U.S. Department of Justice, to the Washington State Gender and Justice Commission. Points of view in this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice. Edited and printed February 2002.
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