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The Paradoxical Issue of Treating Children of Parents with Domestic Violence Protection Orders

Posted Wednesday, September 20, 2017 by Pivotal Law Group

The litigation of Domestic Violence Protection Orders are an important role that the Court plays. These are the most protective (non-criminal) orders that a person can obtain. These orders assists victims of domestic violence in breaking the cycle, and allowing them separation and safety.

A somewhat paradoxical issue that has come up in the past has been how to treat the children of a couple that is the subject of these orders. There are a few child-specific rules. For instance, if an order includes a child-in-common of the parties, the order may not be issued for more than one year (RCW 26.50.060(2)).

One thing that has always been problematic with respect to children, however, has been the application of the very definition of domestic violence to them when seeking to have them protected under the order. RCW 26.50.010(3) sets out the definition of domestic violence, which reads, “(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 as defined in RCW 9A.46.110 of one family or household member by another family or household member.”

While there are certainly instances where this definition is met for a child, there are also many times that the child is merely exposed to the violence, and has been previously omitted from the orders for that reason. In my experience, this has something of a chilling effect for victims who are afraid that their children will not be adequately protected in this process.

In June 2017, the Washington Supreme Court addressed this issue in Rodriguez v. Zavala. In a relatively rare unanimous opinion, the Court ruled that, “We conclude that exposure to domestic violence constitutes harm under the DVPA and qualifies as domestic violence under chapter 26.50 RCW.”

This case will have the effect of removing the ambiguity of whether the Court should or should not include a child on a protection order, and it will hopefully remove some of the fear that people seeking protection orders may experience as to whether or not their children will be protected if they make the decision to start this process.

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