A Washington Civil Lawyer’s Opinion on How to Remove or Lift Permanent Civil Protection Orders
In Washington, the legislature created civil protection orders to solve a social problem … how to end disputes that don’t rise to criminal behavior but legally present as domestic violence or as harassment or stalking according to Washington law. While a protection order’s length is most commonly a year or two, some Washington Courts have taken it upon themselves to enter permanent orders especially when individuals proceed without a civil lawyer. Unfortunately, all these situations did not deserve permanent orders, or, after the passage of a significant amount of time the situation has changed. Whether someone ignored a hearing and the court only heard half the story or people, or an order has been in place a long time (5 plus years) and the situation changed, there are a number of Respondents (people who have had the order entered against them) who need to know how to address these orders. Keep in mind that from practicing lawyers who handle these kinds of motions all over the state, the work necessary to ask a court to lift a permanent protections order is the same or more than fighting one originally. This must be done right, in writing and not rushed into.
Permanent Protection Orders
From a Washington civil and criminal lawyer’s prospective, these permanent orders are loaded with problems as they become a lifelong issue for those who have them entered against them … regardless of how much time has passed or whether they were warranted at the time or not. Many of our clients had permanent orders entered during a low point in a divorce or relationship because they ignored the hearing and a judge didn’t hear both points of view, or, mistakes were made that left a strong impression.
Permanent Protection Order Consequences
In Washington, these permanent civil protection orders are producing far-reaching consequences. Respondents are now finding that the impact of these permanent orders are increasingly significant in our modern “online” society. The federal government has tapped into Washington’s state database and clients (and their new families) are being stopped and questioned at international borders, clients are having problems with federal background checks for firearms as an open/active protection order will interfere with gun possession or purchase rights or their status of having an “open” order against them is affecting employment or employment opportunities.
In some cases, these permanent protection orders should never have been entered (if the judge heard both sides of the story) and in others, so much time has gone by that the concerns and issues are gone. The question is what can you do?
The Permanent Protection Order Solution – A Motion to Modify or Rescind
In Washington, if you asked to lift a permanent protection order, you used to be at the mercy of the courts and the courts were not that merciful. In 2010, the Washington Supreme Court confirmed that Washington Court judges needed to use discretion and common sense when hearing requests to drop these permanent orders. This bit of Washington case law outlined some relatively clear rules regarding when a judge should or should not consider lifting a permanent protection order. Subsequently, the Washington legislature formalized the process of asking a judge to lift, modify or rescind a permanent protection order under RCW 26.50.130(3). Although not as explicit, one can argue the same points, in our opinion, in asking to rescind or modify permanent anti-Harassment Orders.
If someone wants to try it him or herself, RCW 26.50.130(3) outlines the process to lift a permanent protection order or one that is over 2 years in length. The statute has very clear notification requirements for the other party that judges will examine very closely in these kinds of cases.
To be successful in lifting the order, the respondent (the person who had the order entered against them) must prove by preponderance of the evidence (more likely than not) that there has been a substantial change in circumstances such that the respondent is not likely to resume acts of domestic violence against the protected party and the court is directed to only consider factors addressing this issue. Per statute, the following factors, amongst others, may be considered:
- (b) For the purposes of this subsection, a court shall determine whether there has been a “substantial change in circumstances” by considering only factors which address whether the respondent is likely to commit future acts of domestic violence against the petitioner or those persons protected by the protection order.
- (c) In determining whether there has been a substantial change in circumstances the court may consider the following unweighted factors, and no inference is to be drawn from the order in which the factors are listed:
- (i) Whether the respondent has committed or threatened domestic violence, sexual assault, stalking, or other violent acts since the protection order was entered;
- (ii) Whether the respondent has violated the terms of the protection order, and the time that has passed since the entry of the order;
- (iii) Whether the respondent has exhibited suicidal ideation or attempts since the protection order was entered;
- (iv) Whether the respondent has been convicted of criminal activity since the protection order was entered;
- (v) Whether the respondent has either acknowledged responsibility for the acts of domestic violence that resulted in entry of the protection order or successfully completed domestic violence perpetrator treatment or counseling since the protection order was entered;
- (vi) Whether the respondent has a continuing involvement with drug or alcohol abuse, if such abuse was a factor in the protection order;
- (vii) Whether the petitioner consents to terminating the protection order, provided that consent is given voluntarily and knowingly;
- (viii) Whether the respondent or petitioner has relocated to an area more distant from the other party, giving due consideration to the fact that acts of domestic violence may be committed from any distance;
- (ix) Other factors relating to a substantial change in circumstances.
- (d) In determining whether there has been a substantial change in circumstances, the court may not base its determination solely on: (i) The fact that time has passed without a violation of the order; or (ii) the fact that the respondent or petitioner has relocated to an area more distant from the other party.
- (e) Regardless of whether there is a substantial change in circumstances, the court may decline to terminate a protection order if it finds that the acts of domestic violence that resulted in the issuance of the protection order were of such severity that the order should not be terminated.
Concluding Thoughts on These Hearings
In our opinion, as practicing Washington lawyers with a great deal of experience handling protection orders in civil and criminal court, when trying to lift a permanent protection order or one longer than 2 years, it is extremely important for the respondent to file the strongest possible written motion possible to terminate the first time. In our opinion, there are three reasons for this:
- Judges, as a generality, do not like to go back and change a ruling or second-guess another judge’s ruling.
- Judges, as a generality, do not like the exposure of lifting permanent orders as victims can complain and there is “political” danger in doing so.
- Judges as a generality, like finality in judgment, meaning, they do not like to go back and re-open and re-litigate rulings they have already made. Practically, this makes sense otherwise cases would be an endless argument that would never resolve. When you ask a judge to re-address a previous order, on some level psychologically, you are asking a judge to second guess a previous opinion or ruling.
With these ideas in mind, it becomes clear why we recommend that if you are going to ask a judge to lift an old protection order, do so in the most professional and persuasive manner possible and at minimum, stick to the concepts outlined by RCW 10.50.130. Courts do not care about personal hardship in these situations; they care about the law and fact. In our opinion, this means submit a motion with carefully organized exhibits attached to a well-written brief. Do not make a judge “find” your argument, make it so organized that all the judge has to do is read the argument.
Keep in mind that the Washington rules require a judge to make an initial finding on a Motion to Modify a Permanent Protection Order to determine whether there is adequate cause for a hearing. If the court thinks your organized and well laid out argument is persuasive enough, you will earn the right to have a hearing. That said, if your motion is not strong or clear enough, you do not even get a hearing.
In our opinion, if the court denies your first attempt, psychologically it becomes that much harder to convince a judge with a second attempt. In our opinion, a weak first motion means a higher likelihood of losing a second time or potentially a judge considering the motion to be frivolous.
Motions to modify or change a Permanent Civil Protection Order are not easy, but winning rarely is. If you are going to go through the effort and expense of addressing this issue, follow the law and do the best job possible the first time. In our opinion, these motions are best filed by Washington lawyers, who have civil and criminal experience, who regularly fight protection orders, understand the psychology and issues surrounding this area of law and these kinds of cases. Judges know that competent counsel will appeal unfair rulings, and in our opinion, this makes a difference.
Rhodes Legal Group PLLC is founded on a blue-collar work ethic, attention to the detail and the law, client satisfaction, common sense and intelligence. Collectively, we have an enormous amount of experience representing the accused and victims in these kinds of civil and criminal cases. Our online reviews from past clients speak for themselves. Email or call 206-708-7852 to set an appointment.