Friday, October 31, 2014

Stepparents and De Facto Parentage

Last week, the Washington State Division III Court of Appeals issued a new ruling which changes the landscape for many stepparents in establishing a right to parent a stepchild when the child has two living legal parents.

In In re J.B.R., the court held that the doctrine of de facto parentage may be extended to such situations if the stepparent establishes the relevant factors, which include establishing that both legal parents consented to the stepparent being a parent to the child.

The legal father in this case had no contact with the child after he was two years old. The mother married the petitioner, and the child and the petitioner had a parental-like relationship. In any case, a person petitioning for de facto parentage must show that:

(1) the natural or legal parent consented to and fostered the parent-like relationship,
(2) the petitioner and the child lived together in the same household,
(3) the petitioner assumed obligations of parenthood without expectation of financial compensation, and
(4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature.

In fact, this extension of the de facto parentage analysis can create a situation where the child has two legal parents and a de facto parent, which is given legal parity to a legal parent. De facto parentage is an ever-evolving area of law. I expect that this case will be appealed to the Washington State Supreme Court and additional litigation will arise due to this new decision. If you have questions about de facto parentage, please schedule a consultation at (425) 869-4040.

Monday, October 13, 2014

What is Spousal Maintenance?

A request for spousal maintenance, sometimes referred to as spousal support or alimony, is often a part of a dissolution or legal separation proceeding. In Washington, spousal maintenance is meant to rehabilitative, and is rarely ordered for the lifetime of a party. Because Washington is a no-fault dissolution state, marital misconduct is not a basis to include or exclude maintenance.

In analyzing whether to award maintenance, the court will consider factors such as:

the financial resources of the party seeking maintenance, including property to be awarded;
the ability of the party seeking maintenance to be self-sufficient without assistance;
the time and education needed by the party seeking maintenance to become self-sufficient;
the standard of living established during the marriage;
the duration of the marriage;
the age, physical and emotional condition and financial obligations of the spouse seeking maintenance; and
the ability of the spouse from whom the maintenance is sought to meet his own needs and obligations while paying maintenance.

These factors are non-exclusive, so the court may consider other facts in the case. As a general rule, in the case of a short term marriage, the court will seek to put the parties in the same financial position that they came to the marriage in. In the case of a long term marriage (25 years+), the court will look forward to place the spouses in a similar economic position for the rest of their lives.

Dealing with divorce can be a daunting task, and if you or your spouse is requesting spousal maintenance, it is best to seek legal help regarding your rights and the law. If you are interested in learning more about spousal support, please schedule a free consultation to discuss your case.

Copyright © 2014 Wong Fleming, All rights reserved.
______________________________________

Rachel Luke is a attorney in the Bellevue office of Wong Fleming. Ms. Luke practices family law and represents clients on divorces, custody issues, parenting plans, child support, and more.

The Wong Fleming Web Page and all of the information on the website are public resources of general information and entertainment which are intended, but not promised or guaranteed, to be correct, complete and up-to-date. This website may also be considered advertising under various jurisdiction rules governing attorney professional conduct, but it is not intended and does not constitute legal advice. The reader should not consider transmission of these materials to create an attorney-client relationship, should not rely on information provided herein and should always seek the advice of competent counsel in the reader’s jurisdiction. Wong Fleming does not intend links on the website to be referrals or endorsements of the linked entities, and offers no comment regarding the contents of other websites linked to this website. Wong Fleming does not wish to represent anyone desiring information based upon viewing this website in a state where this website fails to comply with all laws and ethical rules of that state. Materials appearing at this website may only be reproduced in their entirety (without modification, and must include this Disclaimer)

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Tuesday, September 16, 2014

Is spanking child abuse?

If you have turned on the television this week, you probably are aware of the allegations that Minnesota Vikings running back Adrian Peterson is facing. He has been indicted by a grand jury on allegations of felony child abuse because he used a thin, whip-like branch, or "switch" to punish his four year old child. The corporal punishment “allegedly resulted in numerous injuries to the child, including cuts and bruises to the child’s back, buttocks, ankles, legs and scrotum, along with defensive wounds to the child’s hands.”

http://www.washingtonpost.com/sports/redskins/minnesota-vikings-rb-adrian-peterson-indicted-on-child-abuse-charges/2014/09/12/2adf5c02-3adb-11e4-8601-97ba88884ffd_story.html

So, is spanking illegal in Washington? The short answer is "no." Parents are legally allowed to use physical discipline in Washington State. However, the issue is complex and there is a fine line between corporal punishment and abuse. The fine line gets even more blurry when a party to your custody case or CPS is making allegations against you. Even if you are not facing criminal allegations, you do not want to be defending child abuse allegations in your family law case because the commissioners and judges frown upon physical punishment-- even if it is simply spanking. Often, family law courts will include in the parenting plan a provision restraining either parent from physically punishing the child.

Here is the relevant Washington Criminal Code statute:

RCW 9A.16.100

Use of force on children — Policy — Actions presumed unreasonable.

It is the policy of this state to protect children from assault and abuse and to encourage parents, teachers, and their authorized agents to use methods of correction and restraint of children that are not dangerous to the children. However, the physical discipline of a child is not unlawful when it is reasonable and moderate and is inflicted by a parent, teacher, or guardian for purposes of restraining or correcting the child. Any use of force on a child by any other person is unlawful unless it is reasonable and moderate and is authorized in advance by the child's parent or guardian for purposes of restraining or correcting the child.

The following actions are presumed unreasonable when used to correct or restrain a child: (1) Throwing, kicking, burning, or cutting a child; (2) striking a child with a closed fist; (3) shaking a child under age three; (4) interfering with a child's breathing; (5) threatening a child with a deadly weapon; or (6) doing any other act that is likely to cause and which does cause bodily harm greater than transient pain or minor temporary marks. The age, size, and condition of the child and the location of the injury shall be considered when determining whether the bodily harm is reasonable or moderate. This list is illustrative of unreasonable actions and is not intended to be exclusive.

Copyright © 2014 Wong Fleming, All rights reserved.
______________________________________

Rachel Luke is a attorney in the Bellevue office of Wong Fleming. Ms. Luke practices family law and represents clients on divorces, custody issues, parenting plans, child support, and more.

Wednesday, September 10, 2014

I just got served with paperwork. What do I do next?

If you are served with any legal pleading, your first step should be to read through the documents. The second thing to do is contact an experienced attorney for a consultation. Your next steps will depend on the type of pleading you were served. Inaction can result in a default judgment.

If you are served with a family law Petition (dissolution, parenting plan, child support modification, etc.) within the State of Washington, you have 20 days to file a "Response" to the Petition. If you were served outside the state, you have 60 days to file your "Response."

If you are served with a family law motion, your response time will depend on the local rules of the court.

In drafting a Response to Petition or a response to a motion, it is best to have an experienced attorney draft these documents. Often, there are specific legal standards that must be met in a particular case. As the responsive party, it is your job to frame your arguments so that they meet the legal standard. It is often difficult to do this on your own.

So, when you get served with legal paperwork, read the pleadings and then call an attorney.

Copyright © 2014 Wong Fleming, All rights reserved.
______________________________________

Rachel Luke is a attorney in the Bellevue office of Wong Fleming. Ms. Luke practices family law and represents clients on divorces, custody issues, parenting plans, child support, and more.

Friday, September 5, 2014

Restraining Orders

A Restraining Order may be entered on an emergency basis (14 days), temporary basis (until the final hearing or trial), or permanent basis. Restraining Orders are an available remedy if you have filed a family law action such as a divorce, paternity, legal separation, nonparental custody, or parenting plan case. Unlike a Domestic Violence Protection Order, the court is not required to make a finding of domestic violence in order to order a Restraining Order. However, the party requesting the Restraining Order must be able to show that the order is necessary.

Similar to a Domestic Violence Protection Order, a restraining order is enforced by reporting a violation of the order to the police. A restraining order may order the other party to stay away from you or the children, order the respondent not to take the children outside of the court's jurisdiction, or even surrender deadly weapons to the local police department.

If you feel you are in immediate danger due to domestic violence, you should call the police. As soon as possible, it is best to also contact the Domestic Violence Hotline (1-800-562-6025) to obtain information on additional services. If you feel you need a Restraining Order, consult with an experienced family law attorney.

Copyright © 2014 Wong Fleming, All rights reserved.
______________________________________

Rachel Luke is a attorney in the Bellevue office of Wong Fleming. Ms. Luke practices family law and represents clients on divorces, custody issues, parenting plans, child support, and more.

Wednesday, August 6, 2014

Intersections Between Family Law and Immigration Law

A new decision out of the Washington State Court of Appeals, Division II was issued yesterday. The question presented to the court was whether the court is obligated to award maintenance (spousal support) in an amount and duration equal to the independent support obligation under federal immigration law.

In In re Marriage of Kahn, the wife had entered the United States on a K1 (fiancee) visa. After their marriage, the husband sponsored the wife's application for permanent residency. Part of the application process required the husband, as the sponsor, to sign an affidavit of support (Form I-864) under section 213A of the Immigration and Nationality Act. The affidavit of support binds the husband to provide the financial support necessary to maintain the wife at an income level at least 125 percent above the federal poverty line and the obligation continues indefinitely with few exceptions for termination. The parties separated after nearly two years of marriage.

Division II held that a maintenance order need not include enforcement of a person's I-864 obligation for three reasons. First, the court considered that there is no conflict between federal law regarding I-864 obligations and Washington dissolution law because they are independent of each other. Second, RCW 26.09.090 governs the award of maintenance in Washington and a trial court cannot rely solely on a non-statutory factor in making a maintenance determination without also fairly considering the statutory factors. Finally, the beneficiary of an I-864 obligation, the wife in this case, will not be left without remedy if that obligation is not included in a maintenance award.

The link to the court's opinion can be found here:

http://www.courts.wa.gov/opinions/pdf/D2%2044814-9-II%20Published%20Opinion.pdf

Copyright © 2014 Wong Fleming, All rights reserved.
______________________________________

Rachel Luke is a attorney in the Bellevue office of Wong Fleming. Ms. Luke practices family law and represents clients on divorces, custody issues, parenting plans, child support, and more.

Wednesday, July 9, 2014

Domestic Violence Protection Orders in Washington State

In Washington, we have several types of orders that restrain and restrict contact between parties. Over the next few blog posts, I plan to discuss the differences between a Domestic Violence Protection Order, Anti-Harassment Protection Order, Restraining Order, Sexual Assault Protection Order, and Criminal No Contact Order.

What is a Domestic Violence Protection Order?

A Domestic Violence Protection Order, or DVPO, is meant to help you get protection from your abuser (the Respondent). It is an order you can get from the court that tells the Respondent that they cannot contact you. Although this is a civil protection order from the court, if your abuser violates the order, they may be arrested or criminally charged with violation of the order.

What is "Domestic Violence"?

The legal definition of Domestic Violence under RCW 26.50 likely differs from other definitions you may have read online or in other materials. For purposes of obtaining a protection order, 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 of one family or household member by another family or household member.

What counts as "Domestic Violence"?

If you have been hit, assaulted, sexually assaulted, or physically hurt.
If you are in fear of an imminent threat of harm by the Respondent.
If you have received threats that inflict fear of imminent harm.
Controlling behavior may indicate domestic violence, but it must be such that it meets the definition described above.

What if I am in a relationship or household where I am a victim of Domestic Violence?

If you are in immediate danger, call 911.
If you are not in immediate danger but need help finding resources, call the 24-hour Domestic Violence Hotline at 1-800-562-6025 when it is safe for you to do so.
If you seek a protection order, go to your nearest courthouse and the Clerk will help you find the domestic violence advocates or discuss your case with an experienced attorney who can represent you.
It is important to contact an attorney especially if your case involves children. Often a DVPO is consolidated with a family law case.
Be sure to make a safety plan in case of an emergency. Contact Domestic Abuse Women's Network (DAWN) at (425) 656-7867 when it is safe for you to do so.

Copyright © 2014 Wong Fleming, All rights reserved.
______________________________________

Rachel Luke is a attorney in the Bellevue office of Wong Fleming. Ms. Luke practices family law and represents clients on divorces, custody issues, parenting plans, child support, and more.

Tuesday, June 3, 2014

Child Abuse and Parenting Plans

I recently came across this sad story from NPR regarding child abuse and mistreatment.

http://www.npr.org/blogs/health/2014/06/02/318227196/odds-of-abuse-and-mistreatment-add-up-over-childrens-lives

I would venture to say that a lot of child abuse goes unreported. Within the family law realm, child abuse and neglect is relevant in the context of developing a parenting plan. The court may impose restrictions on a party’s residential time and decision making authority for certain conduct, including “physical, sexual, or a pattern of emotional abuse of a child” or “a history of acts of domestic violence or an assault or sexual assault which causes grievous bodily harm or fear of such harm.”

In cases where child abuse, neglect, and/or domestic violence are alleged, it is best to have a guardian ad litem appointed to make recommendations to the court regarding an appropriate parenting plan. The guardian ad litem must make recommendations based on the best interests of the child, and the recommendations are made after an investigation. During the investigation, the guardian ad litem will interview parties and collateral contacts, review documents such as Child Protective Services Reports and Police Reports, visit with the children, interview teachers, principals, and counselors. Based on their investigation, the guardian ad litem will make their recommendations to the court. The judge may adopt some, all, or none of the guardian ad litem’s recommendations depending on the comprehensiveness of the investigation and credibility of the guardian ad litem as a witness.

If you and your family are currently in a domestic violence and abuse situation, call 911 if there is an emergency. If you need help finding resources and domestic violence programs and services, call the Washington State Domestic Violence Hotline 800-562-6025 (8AM – 5PM) or the National Domestic Violence Hotline 800-799-7233 (open 24 hours).

Copyright © 2014 Wong Fleming, All rights reserved.
______________________________________

Rachel Luke is a attorney in the Bellevue office of Wong Fleming. Ms. Luke practices family law and represents clients on divorces, custody issues, parenting plans, child support, and more.

Tuesday, May 20, 2014

DIY Divorce?

I always advise potential clients that it is not a good idea to handle your own divorce. Why not? As one family law commissioner put it, “It’s like doing your own dental work. Do you know how to do your own dental work? These attorneys have gone to school for years and are trained professionals!” Without the assistance of an attorney, there are many problems that we see after the dissolution is finalized and with some issues, they cannot be fixed without an agreement of the other party. Most of the issues we see are due to the final orders being too general.

Some common missteps from DIY Divorces I have seen in the past:

Not having an understanding of the phrase "fair and equitable division of assets and liabilities," or "community property," or "separate property";
Failure to properly divide assets such as retirement accounts that necessitate a Qualified Domestic Relations Order;
Not specifying how to remove one party from the mortgage on the family home and when it will happen;
Failure to secure transfer of marital lien;
Failure to spot tax implications;
Failure to specify the duration of spousal maintenance payments;
Failure to properly specify details in the parenting plan.

If your divorce is truly not contested or not complicated, it should not be too expensive for an attorney to handle your case. It may save you a lot of grief and money in the long run!

Copyright © 2014 Wong Fleming, All rights reserved.
______________________________________

Rachel Luke is a attorney in the Bellevue office of Wong Fleming. Ms. Luke practices family law and represents clients on divorces, custody issues, parenting plans, child support, and more.

Arbitration and Mediation? We have you covered!

Monday, May 12, 2014

When Should I Settle? When Should I Go To Trial?

Settlement

Most cases can be resolved outside of court. There is a lot to be said for the settlement process. I will advise my clients to settle with a reasonable settlement offer when cost is an issue. A case that is litigated through trial will likely cost $15,000 or more per party. This is money that the parties could use in their pocket or they may not have.

Another benefit to out of court settlement is that you maintain some control in the outcome and pace of the case. It is always risky having a judge make the decisions regarding your case. Even after the evidence is presented at trial, the judge will have their own concerns and biases. Parties who settle a case can have some control of the outcome. They have a say in the resolution of the case and are not leaving it in the hands of a stranger to decide. Although there is clearly some compromise, most parties will walk away from a successful mediation or settlement feeling good about their decision.

Finally, many parties see the benefit in the flexibility and creativity that settlement allows. Settlement allows for more creativity in the outcome as well. The parties know what is most important to them, and can draft the settlement documents in ways that a judge would probably never consider because they don’t have the time and resources to devise the orders in that way. In a settlement, you can consider and propose many different options.

Trial

Some cases do need to go to trial. For example, when a party attempts bullying tactics or when there is a power imbalance that is residual from the relationship, often it is necessary to go to trial because settlement talks will often lead to nowhere. In addition, an opposing party who is uncommunicative make it impossible to even discuss negotiations, and so trial is most certainly necessary.

There are situations when you are faced with an opposing attorney who is combative. They may have their reasons for being overly aggressive—perhaps that is their personality, it may be the personality that their client wants to represent them, or it may be that they are after higher billable hours. Either way, it will be very difficult to negotiate with this type of attorney, and going to trial may be the best way to allow yourself an opportunity to be heard.

Finally, it is sometimes best to continue litigating when you stand to gain more in court than what is being offered. This is generally a cost-benefit analysis given that going to trial can cost at least $15,000 per party. However, the risk is sometimes worth it if you believe the law is in your favor.

Rachel Luke is a attorney in the Bellevue office of Wong Fleming. Ms. Luke practices family law and represents clients on divorces, custody issues, parenting plans, child support, and more.

Friday, April 25, 2014

Consideration in Developing Your Parenting Plan

In Washington, the court considers several factors in developing the parenting plan for the children. The parenting plan will set out a residential schedule, dispute resolution process, and will designate who can make important decisions regarding the children. The purpose of analyzing the factors is to encourage both parents to maintain a loving, stable, and nurturing relationship with the child, consistent with the child’s developmental level and the family’s social and economic circumstances. The broader picture of this analysis is the “best interests of the children” and the court considers:

The relative strength, nature, and stability of the child’s relationship with each parent;
The agreements of the parties, provided they were entered into knowingly and voluntarily;
Each parent’s past and potential for future performance of parenting functions, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;
The emotional needs and developmental level of the child;
The child’s relationship with siblings and with other significant adults, as well as the child’s involvement with his or her physical surroundings, school, or other significant activities;
The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and
Each parent’s employment schedule, and shall make accommodations consistent with those schedules.

The first factor is given the most weight in the analysis. Even if you have an amicable divorce, it is recommended that you go through this analysis in proposing a parenting plan or in drafting the parenting plan with the opposing party. Both logistics of the residential schedule and maintaining stable, nurturing relationships should be considered in drafting a parenting plan.

Rachel Luke is a attorney in the Bellevue office of Wong Fleming. Ms. Luke practices family law and represents clients on divorces, custody issues, parenting plans, child support, and more.

Tuesday, April 22, 2014

Social Media and Your Divorce/Custody Case/Anything Involving the Court

If you’re in the middle of a divorce or custody case, or any litigation, you should be aware that your use of social media is going to be scrutinized. You have a few options, including logging out of, deactivating, or closing all social media accounts including Facebook, Twitter, Instagram, etc. Alternatively, you can make sure your accounts are private (friends only), but that does not really protect you from one of your “friends” providing your Facebook posts to the opposing party to be used against you.

DON’T:

Post pictures of you and your friends partying on a Saturday night. Even if you’ve been “tagged” in someone else’s photos, your pictures at the club or anything that can look like excessive alcohol use is not going to help your case.
Criticize your ex. Yes you have the right to criticize. However, it makes you look bad. Also, don’t let your friends or family members criticize your ex online. Delete the unwanted postings and try to keep it positive.
Post pictures of you hanging out with unsavory characters. If you’re in the middle of a custody case, it’s best not to associate with people who you know have criminal assault cases or sexual offenders.
Post pictures of recent vacations, new cars, etc. If you’re asking the court to decrease the amount of support that you pay because of financial hardship and the opposing party gets a hold of these pictures, your case will likely be dead in the water.
Give too much information. Don’t share attorney-client communications. Don’t post anything that includes “my attorney said…” You may be unintentionally waiving the attorney-client privilege that you normally would enjoy.

The best advice: if you would be embarrassed by a judge seeing or reading the social media post in court, you should not post it. If you have any second thoughts about a picture or a post, don’t put it on your page. It’s simple.

Rachel Luke is a attorney in the Bellevue office of Wong Fleming. Ms. Luke practices family law and represents clients on divorces, custody issues, parenting plans, child support, and more.

Wong Fleming Family Law

Pages

Friday, October 31, 2014

Stepparents and De Facto Parentage

Monday, October 13, 2014

What is Spousal Maintenance?

Tuesday, September 16, 2014

Is spanking child abuse?

RCW 9A.16.100

Use of force on children — Policy — Actions presumed unreasonable.

Wednesday, September 10, 2014

I just got served with paperwork. What do I do next?

Friday, September 5, 2014

Restraining Orders

Wednesday, August 6, 2014

Intersections Between Family Law and Immigration Law

Wednesday, July 9, 2014

Domestic Violence Protection Orders in Washington State

Tuesday, June 3, 2014

Child Abuse and Parenting Plans

Tuesday, May 20, 2014

DIY Divorce?

Arbitration and Mediation? We have you covered!

Monday, May 12, 2014

When Should I Settle? When Should I Go To Trial?

Friday, April 25, 2014

Consideration in Developing Your Parenting Plan

Tuesday, April 22, 2014

Social Media and Your Divorce/Custody Case/Anything Involving the Court