Civil Domestic Violence Protection Order Litigation. An Experienced Lawyer | Attorney’s Perspective
If you have been served with a Domestic Violence Protection Order and are considering fighting it, read the section on fighting a protection order as well as the content below. If you are looking to pursue a Domestic Violence Protection order with or without the assistance of counsel, read below.
Overview
As of 2022, Domestic Violence Protection Orders are part of a Chapter of law called “Civil Protection Orders.” From our perspective as practicing attorneys who have prosecuted, litigated and fought a great number of these Orders, the key word is “prevention”. Domestic Violence Protection Orders are a civil remedy designed to help an abused party “prevent” abuse and leave a relationship that is spiraling down the road of fear, intimidation and power imbalance, or help an abused party get out of a relationship that is already there. The truth is that any close personal relationship can fall prey to threats and dysfunction, which is why the definition of domestic violence in relationships is so broadly defined by the law. Be it roommates, parents or lovers, once a certain line is crossed, the court system provides a remedy when leaving or ending contact is a problem.
In order for the court to get involved, the problem must be between the two parties in a domestic relationship where one party causes:
(a) Physical harm, bodily injury, assault, or the infliction of fear of physical harm, bodily injury, or assault; nonconsensual sexual conduct or nonconsensual sexual penetration; coercive control; unlawful harassment; or stalking of one intimate partner by another intimate partner; or
(b) Physical harm, bodily injury, assault, or the infliction of fear of physical harm, bodily injury, or assault; nonconsensual sexual conduct or nonconsensual sexual penetration; coercive control; unlawful harassment; or stalking of one family or household member by another family or household member.
Things a Domestic Violence Protection Orders can do:
- Restrain the Respondent from committing acts of domestic violence;
- Restrain the Respondent from making any attempts to have contact, including nonphysical contact, with the Petitioner or the Petitioner’s family or household members who are minors
- Exclude the Respondent from the dwelling that the parties share, from the residence, workplace, or school of the filing party, or from the day care or school of a child;
- Prohibit the abuser from knowingly coming within, or knowingly remaining within, a specified distance from a specified location;
- Allow the court to make residential provision with regard to minor children of the parties.
- Order the abuser to participate in a domestic violence perpetrator treatment program approved under RCW 43.20A.735.
- Order other relief as it deems necessary for the protection of the filing party and other family or household members sought to be protected
- Require the abuser to pay the administrative court costs and service fees, as established by the county or municipality incurring the expense and to reimburse the filing party for costs incurred in bringing the action, including reasonable attorneys’ fees;
- Restrain the abuser from having any contact with the victim of domestic violence or the victim’s children or members of the victim’s household;
- Restrain the abuser from harassing, following, keeping under physical or electronic surveillance, cyberstalking as defined in RCW 9.61.260, and using telephonic, audiovisual, or other electronic means to monitor the actions, location, or communication of a victim of domestic violence, the victim’s children, or members of the victim’s household.
- Require the abuser to submit to electronic monitoring.
- Consider requiring a party to surrender weapons and concealed weapon permits;
- Order possession and use of essential personal effects including pets. The court may also prohibit the respondent from knowingly coming within, or knowingly remaining within, a specified distance of specified locations where the pet is regularly found; and
- Order use of a vehicle.
- Restrain access to children.
- Can be used as a basis for breaking a residential lease pursuant to RCW 59.18.575.
The standard duration for a domestic violence protection order is 1 year. A Court cannot make it less than a year unless the Petitioner specifically asks for a shorter period of time. While less common, the Court can make a protection order last longer than a year and can even make it permanent. Longer durations will depend on the severity of the allegations and the history of abuse.
What if the Petitioner is actually the abuser and the Respondent is the true victim?
Unfortunately, there are occasions where an abuser attempts to file a protection order against their victim. This may be done for a variety of reasons, including attempting to “race to the courthouse” to try to file an order prior to an order being filed against them to create a false narrative about the abuse. In circumstances like this, it is possible for the Respondent to request that the Court realign the parties. This means requesting that the original petitioner become the new respondent and that the original respondent is now seeking an order of protection against the original petitioner (now the new respondent.)
As practicing lawyers | attorneys in this field, we know relationships dominated by violence and fear are a well-documented tragedy that has long term consequences for parties, families and children. The inequity that domestic violence protection orders are primarily trying to remedy is fear and violence. Typically, one party is violent, controlling and rules a relationship by these two factors. Civil Protection Orders are designed to level the playing field, so to speak, by extending the protection of the court and police to the abused party who wants out. These orders, along with safety plans, are the best way at the law knows how to help.
In order to make a problem relationship go away, the best solution is making a plan to do so. It is amazing how comprehensive and effective these plans can be if you talk to an experience professional about it. Domestic violence advocate groups specialize in doing this and the phone numbers and checklists for Northwest region are all over the Internet. New Beginnings is one of many. If necessary, forming and following a safety plan with third party assistance while Petitioning and winning a civil Domestic Violence Domestic Violence Protection Order is the safest time tested way of leaving … unless the police will arrest and charge someone, then a No Contact Order is available.
A valid civil Domestic Violence Order of Protection functionally shifts the police and law to the abused party’s side and gives them police protection from stalking, harassment, threats or violence. Our lawyers have represented a wide variety of clients and relationships and have seen a great number of these orders play out so our advice is steeped in experience with wisdom. If you are going to get a Domestic Violence Protection Order, make the whole process as safe as possible. We will help. As privately retained lawyers, we have litigated 100’s of these orders and are highly experienced in their use and application as well as helping “frame the bigger picture”.
Where do you file a Domestic Violence Protection Order?
Domestic Violence Protection Orders can be filed by any adult, minor (with qualifications) or on behalf of a household member. While more commonly filed in Superior Court, a domestic violence protection order can be filed in either District Court or Superior Court. However, a case must be in Superior Court if a Superior Court has exercised or is exercising jurisdiction over a proceeding involving the parties (like a divorce), the order would interfere with the Respondent’s care, control, or custody of the Respondent’s minor child, the order would affect the use or enjoyment of real property for which the Respondent has a cognizable claim or would exclude a party from a shared dwelling, or if the Petitioner is under 18 years old, or if the District Court is unable to verify whether there are potentially conflicting or related orders involving the parties as required by RCW 7.105.105 or RCW 7.105.555. If the case was already filed in District Court and it is determined it must be in Superior Court due to one of the circumstances just listed, the District Court must transfer the case to Superior Court.
In addition to a question of which type of court to file a case in, there is also a question of where (venue) – as in which county to file it in. A petition for protection is typically filed in the county where the Petitioner lives but can also be filed where the domestic violence took place, where a child to be protected by the order primarily resides, where the Petitioner lived before moving (if the move was due to the Respondent’s actions), or the court nearest the Petitioner’s home.
As lawyers, we find it is a good idea to follow the best practice of filing in the local Superior Court where the filing party presently resides or used to reside if they left because of abuse (this allows an abused party to avoid letting the other party know what county they presently live in).
Respondent living out of State: In cases where the abusive party lives out of state, there is a specific provision of the law that authorizes the court to have jurisdiction over them under certain circumstances. Consult with the lawyers | attorneys in our office about your specific situation as this issue is tricky. It is possible but requires a careful review of the above-mentioned law. If you are a Respondent, it is especially important that you immediately contact an attorney as soon as you become aware of the petition for protection otherwise you may accidently destroy a possible legal defense for lack of jurisdiction.
How is a Domestic Violence protection order filed?
There is a set of forms that need to be filled out and filed with the court clerks just inside the court building at no cost. Although each Court may have its own forms, the forms used for protection orders are universal in the State of Washington.
These forms, along with declarations and facts that support your story are submitted and filed with the clerk at the appropriate court. Our lawyers usually spend 1-2 hours talking, listening, asking questions, strategizing and taking notes before deciding how best to arrange a case for court. We generally spend a similar period of time organizing declarations, police reports, emails, Facebook, photos and any other evidence into the Petition to submit to court. As lawyers, we find we spend an average of 10-20 hours in total arguing one of these Protection Orders (including court time) though some complicated and litigious disputes have required 30-60 hours. All cases are fact dependent but this should give you an idea of how much time to expect to spend if you are really interested in winning. If you are going to proceed without a lawyer, expect to triple these times reading and familiarizing yourself with the law and its process if you want a good chance of winning. There are also groups that help people fill out domestic violence protection orders. The court clerks at each courthouse can direct you to them, as generally there are dedicated personnel to assist at each Superior Court we have been in.
Filing these forms with the front clerk at the local Superior (or District) court will automatically give you a court hearing (often the day you file them) where a judge or commissioner will decide whether to:
(1) Immediately enter a Temporary Protection Order and simultaneously set a hearing 14 days later to hear argument from the other side as to whether the court should enter something more permanent.
(2) Not enter a Temporary Order for immediate protection, but still set a Hearing in 14 days to hear argument from both sides before deciding whether a long term Protection Order should be entered.
(3) Deny your request for an Order.
Then what happens?
If your request for a Protection Order is denied, you can always come back to court at a later time with new facts or evidence and ask the court for an Order.
If your request for a Protection Order is granted, a copy of this Order must be served upon the offending party and it becomes effective on service. Though we have seen people try to use friends or family to serve paperwork, this is actually a terrible idea. Using a police officer to serve Protection Orders is safer, avoids unnecessary conflict, and assures there is no argument about when and where the other party was served. It also reinforces how serious the process is. Our office only uses police officers as a policy. Copies of these Temporary Orders are entered into the statewide police database for active warrants so all police agencies are aware of them and will act on them.
The Hearing.
At the hearing 14 days later, all parties attend and the court will decide whether to enter an order after hearing both points of view. All hearings may be conducted remotely. However, some courts are more inclined to prefer hearings be conducted in person and some prefer more remote hearings. It is important to be aware of these tendencies.
The responding party has a duty to provide a copy, in advance, of any paperwork they wish to submit to the court else another continuance may be required and if service of the protection order paperwork is made late in the two week period (it happens), expect a judge or commissioner to be willing to grant a continuance for an additional period of time to allow the other side to prepare. If a Temporary Protection Order was initially granted, the judge will renew it until the full hearing takes place. In our experience, courts will not let it lapse until a full hearing has been held.
In order to win this hearing, you must prove the offending party committed domestic violence by a preponderance of the evidence and follow the court rules in presenting your case. In general, we always proceed using written documents and work with our clients to prepare them for any potential questions, issues and pitfalls. Given the number of hearings we have attended, our advice is comprehensive and complete.
What happens if I win the hearing?
If you win the hearing, the judge will issue an order, generally one year (however, we have seen permanent orders entered on the right set of facts), unless the judge believes this is not long enough (there are some unique aspects to this rule if minor children are involved). Judges are generally cautious about entering longer orders because the law allows the winning party to renew and extend orders if necessary, three months before their expiration. RCW 7.105.405.
The valid longer term Protection Order (which replaces the Temporary Protection Order) will again be sent to a statewide police database and is a basis for the police to arrest if probable cause is found that it is violated. In general, we find police departments take these orders very seriously.
Over the course of our lengthy legal careers, our lawyers | attorneys have handled a wide variety of complicated and emotionally tangled cases in the criminal, civil and administrative legal arenas. Our office is a unique blend of courtroom experience, knowledge, skills and temperament. Our lawyers know cases are rarely as simple as police reports or accusations claim. Our clients hire us because they want trained listeners who are staunch, uncompromising and effective. They want counsel who takes the time to listen and fight vigorously for the right result. Whether acting in our role as counsel, advocate, negotiator or litigator, we have years of experience manipulating, working and fighting to resolve cases with our clients’ best interests in mind.
