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Haven't posted in a long while, but I lurk every week.

I just wanted to encourage you all to keep up the good fight for your children's sake. It is worth it. We will be having our first uninterrupted Father's Day with SS this year. He is 20 now. I came to this site when he was 6 or 7. Up until last year, BM was interfering. Then apparently SS did something that made her turn to him say, "you are every bit as bad as your father ever was" and he left. His rose colored glasses were off. I am sad that SS had to be hurt in order for that to happen, but he is also learning to deal with a mother that has unresolved emotional issues in a way that keeps some healthy boundaries... something we sought for him for years.  He is asking questions -- I promised him years ago that I would never lie to a direct question  -- sometimes it is hard not to play the blame game and keep my explanations to what we absolutely know.

SS calls 3-4 times a week to ask his Dad if he can come hang out... to ask if they can go do something together...to ask for advice. It is so NORMAL that it brings a tear to my eye.

Like many others here before us, we are passing on the torch.

everybody happy dance for us a minute. CS is done. DH has paid CS for 17 out of SS's 18 years (they were married for one year).

Background: I have been in SS's life since he was 5. DH and his ex had been divorced over a year when I met him. We were married 5 months later and we've been married ever since (13 years this November).

BM was a hostile agressive parent. SS seemed to buy every word she uttered. She told him that only the people you live with are your REAL family. He even rationalized sodomizing his little brothers because they weren't real. She demonized me for making sure SS was convicted so that he could get the counseling he needed. It has been a long living hell. SS turned 18 in NOV.

The last CS payment was June 1 and as of last Tuesday, BM kicked SS out of the house... wait, thats not entirely true, cause BM let her drug addicted older son come home and he was beating up SS, so SS asked her to make older half brother leave. She instead decides that since the gravy train is over, SS can shut up and take it or leave (apparently BM is getting some money from older son.)

Tonight while chatting online (SS was at the library) he admitted to knowing his mom was a hostile agressive parent and that he was better on the street than going back to her home.

Also found out that SS dropped out of school in April 2009. BM got an extra month of support. I am pissed. I am so almost done and now I have to help this kid (he is about 15 mentally) who is 18 learn to use the system to survive, cause I cannot bring him back to our home. My in-laws probably would have helped, but my FIL had 2 heart attacks lately, so that is not an option right now. SS's conviction makes it hard to get him help through shelters. SS needs to finish high school, and wants to, but without somewhere to live and food to eat, he is not likely to go... survival comes first.

DH will not be back from Iraq until August. He is trying to deal with things, but 11 hours and many miles make it HARD.

Yeah, Drama. I think I will go find my panic meds, cause my blood pressure is spiking and my chest hurts.

[stepping up]

Recently while watching one of the myriad of court shows, I heard the following statement and I just had to nod and say sad but true...

"You keep bellyaching about me stepping up, I got no problem with that, but first you gotta get the hell off the stairs!"

I just finished a new book out there called The Shack. For fiction, it is a thought provoking work. It is written by William P. Young. (To read more about the book go to www.theshackbook.com (http://www.theshackbook.com).) I am not going to try to sell anyone on reading it or buying it.

That being said, the one thing that was excruciatingly clear is that despite our own perceived failings, God as Father is so incredibly important to our own personal healing,  our spiritual and mental health, and our ability to create and maintain relationships with our families, friends and fellow man.

In one part, Mack, the main character asks God, ".. why is there such an emphasis on you being a Father? I mean, it seems to be the way you most reveal yourself."

"Well," responded Papa, turning away from him and bustling around the kitchen, "there are many reasons for that and some of them go very deep.Let me say for now that we knew once Creation was broken, true fathering would be much more lacking than mothering. Don't misunderstand me, both are needed -- but an emphasis on fathering is necessary because of the enormity of its absence."

Now some may think the author is again going down the men bad/woman good path, but having read the rest of the book, I see it as saying that a human being's relationship with one's father is so important, so essential, that God choses to reveal Himself to us as a surrogate Father in order that we not go entirely without. I beleive that God is neither male nor female. And to know that the God of creation choses to limit Himself to one gender to make sure I have a loving father in my life... that is how important fathering is.

During the years after my mother had successfully performed her fatherectomy, I was not much more than a lost child. I turned to God to get through the day to day stuff. I clung to the promise that God will be a father to the fatherless. (And He was, never failing to love me, care for me, provide just what I needed and just when I needed it.) However, in God's infinite wisdom, He provided a reconciliation with my father. My true healing came when I learned to forgive my father for all the hurts, either real or imagined. That moment of restoration of my relationship with my father has been a turning point for me.

SS turned 18 today. He is set to graduate in June 2009. CS order say through graduation. How do we stop the order without making a big deal?

[he continued to violate the plan]

DO NOT CITE.  SEE RAP 10.4(h).

                          Court of Appeals Division I
                               State of Washington

                            Opinion Information Sheet

Docket Number:       56152-9-I
Title of Case:       Saiyin Haggerty, Respondent v. T. Bret Haggerty, Appellant
File Date:           04/17/2006


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of King County
Docket No:      04-3-00375-3
Judgment or order under review
Date filed:     04/20/2005
Judge signing:  Hon. Joan B Allison


                                     JUDGES
                                     ------
Authored by Susan Agid
Concurring: Anne Ellington
            C. Kenneth Grosse


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            T. Bret Haggerty (Appearing Pro Se)
            13222 29th Avenue S.E.
            Mill Creek, WA  98012

Counsel for Respondent(s)
            Karma L Zaike
            Michael W Bugni & Associates
            11320 Roosevelt Way NE
            Seattle, WA  98125-6228


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of    )
                                                 ) No. 56152-9-I
SAIYIN PHASAVATH, f.k.a.           )
SAIYIN HAGGERTY,                     ) DIVISION ONE
                                                 )
             Respondent,                  )
                                                 )
          and                                  )
                                                 )
THOMAS BRET HAGGERTY,          ) UNPUBLISHED OPINION
                                                 )
             Appellant.                      ) FILED: April 17, 2006
                                                 )

     PER CURIAM - The trial court issued a protection order against Bret Haggerty.  He appeals, arguing that insufficient evidence supports the trial court's factual findings and its conclusion that he engaged in domestic violence against his ex-wife, Saiyin.  Although he presents a close question, the evidence is sufficient to support the court's determination that Haggerty stalked Saiyin.  The trial court did not abuse its discretion by issuing the protection order.  We affirm.

FACTS

     On February 1, 2005, Saiyin Phasavath, f.k.a. Saiyin Haggerty,
(Saiyin) filed a petition for an order of protection against her ex-husband
and the father of two of her children, Bret Haggerty (Bret).*1  Saiyin
stated in her petition that Bret relentlessly harassed her by phone and in
person.  She claimed he constantly pressured her for time with the children outside of that provided in the parenting plan, and that he continued to violate the plan by keeping the children longer than allowed or showing up at their schools to see them during the week.*2  She stated that Bret's demeanor intimidated her and that she feared him because of his conduct.  A court commissioner entered a temporary order and set a return hearing for February 15.

     On February 9, Bret filed a motion to dismiss the petition and realign
the parties.  He disputed Saiyin's claims, arguing none of his actions
constituted domestic violence and Saiyin actually caused most of the
conflict.   At the February 15 hearing, the court commissioner dismissed
Bret's motion but considered his declaration supporting his motion as his
response to Saiyin's petition.  As in his declaration, Bret argued at the
hearing that none of his conduct amounted to domestic violence, and he was in fact the victim of domestic violence by Saiyin.  The commissioner issued the protection order and awarded Saiyin $500 in attorney fees.

     Bret moved to revise the order, and the trial court held a hearing on
March 30, 2005.  Judge Michael Spearman denied the motion and awarded Saiyin $500 in attorney fees.  He concluded that a preponderance of the evidence showed Bret engaged in domestic violence against Saiyin by stalking her.

DISCUSSION

I.  Sufficiency of the Evidence*3   Bret argues that the trial court erred
by issuing the protection order because the  evidence was insufficient to
support it.  We review the trial court's decision to grant or deny a
protection order for abuse of discretion.*4  A trial court abuses its
discretion when its decision is manifestly unreasonable or based on
untenable grounds.*5  We determine whether the trial court's findings are supported by substantial evidence in the record, and, if so, whether those findings support the conclusions of law.*6  Substantial evidence is that sufficient to persuade a fair-minded person of the truth of the asserted premise.*7   Substantial evidence may support a finding of fact even if the reviewing court could interpret the evidence differently.*8

     A protection order is a civil remedy.*9  Civil cases require proof of
the statutory elements by a preponderance of the evidence.*10  After notice and a hearing, RCW 26.50.060 authorizes the court to issue a protection order.*11  A party seeking a protection order must "allege the existence of domestic violence() and . . . (declare) the specific facts and circumstances from which relief is sought."*12  Here, the Order for Protection states the trial court "finds that the respondent committed domestic violence as defined in RCW 26.50.010 and represents a credible threat to the physical safety of petitioner . . . ."  RCW 26.50.010 defines domestic violence 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 as defined in RCW 9A.46.110 of one family or household member by another family or household member.

     The trial court commissioner issued the protection order because she
found Bret had a pattern of taking "extreme measures to inflict himself" on Saiyin and the children,  based on his multiple harassing phone calls and "at least 11" unfounded referrals to Child Protective Services (CPS).  She also found he failed to comply with the parenting plan and violated the February 1 temporary protection order by having his mother call Saiyin to request visitation.  She ruled that Saiyin had a reasonable fear of Bret's continued "infliction of imminent physical harm or assault on her and the children directly and/or indirectly."

     In denying Bret's motion for revision, Judge Spearman found that the
evidence was "sufficient to conclude by a preponderance of the evidence
that (Bret) did engage in domestic violence against (Saiyin) by committing the act of stalking as it is defined in RCW 9A.46.110."  He cited an April 2004 letter from Saiyin to Bret as putting him on notice that she considered his conduct, particularly his multiple phone calls, to be harassment.  Judge Spearman also cited Bret's failure to follow the
parenting plan and repeated CPS referrals as further proof of harassment.

     Substantial evidence supports the majority of the trial court's
findings.  The parenting plan authorized Bret to talk by phone with the
boys on Sunday and Wednesday evenings from 7:00 to 7:45 p.m.  It granted him visitation rights for one weekend per month, from 4:00 p.m. Friday until 7:00 p.m. Sunday, along with various birthdays, holidays, and school vacations.  Saiyin sent Bret a letter on April 22, 2004, indicating her concerns about the increasing conflict between them and specifically telling him that his frequent phone calls and messages were not welcome.

She told him he could talk to the boys as provided in the parenting plan
and he should not call her more than once a day.  In support of her
petition, she claimed that he ignored this letter and continued to call
outside of the designated times and harass her.  Bret denied making
frequent and harassing calls, but we will not disturb the commissioner's
credibility determinations.*13

     Bret's various letters to Saiyin and/or her attorney between August
2004 and January 2005 establish that he consistently tried to pressure
Saiyin into giving him more time with the children than was provided in the parenting plan.  They also demonstrate his willingness to threaten legal action to get what he wants.  For example, on October 4, 2004, Bret wrote Saiyin telling her that he would be in her area working on his house for most of October and November.  He asked if they could "work out a more appropriate visitation schedule between us or do we need to go before a court.  Every other weekend I feel would be appropriate during this time frame and some time during the week.  What are you willing to work on?"  He then says "Your position that I cannot take TJ and Sam out of school and the daycare during the week for lunch is violating my rights as their father. . . . If you will not take care of this on your own I will have no choice but to take legal action against you."

     The CPS Status Report lists 18 referrals since November 2000.  It
identifies Bret as making nine of the referrals.  Of those nine, four
resulted in investigations or safety assessments, and CPS ultimately deemed only one of those four as unfounded.  CPS took his other five referrals as information only and did not investigate.*14  The evidence does not support the commissioner's specific finding that he made at least 11 unfounded referrals to CPS.  But it does show that he made repeated CPS referrals. We cannot say that the trial court erred by considering the sheer number of referrals along with his other conduct in finding that he harassed Saiyin.

     Substantial evidence does not support the commissioner's finding that
Bret failed to comply with the temporary protection order issued on
February 1, 2005.  The fact that his mother called Saiyin after entry of
the temporary order cannot be imputed to Bret to show that he violated the protection order.  There was no evidence that he instructed his mother to call Saiyin or that he even knew about it ahead of time.  Further, the call his mother made after February 1 was in the course of apparently amicable communications about a possible visit with the grandchildren.  And Saiyin testified that his mother did not call her back after Saiyin told her to contact her attorney from then on.  However, the finding that Bret failed to comply with the temporary protection order was not essential to the ultimate determination that Bret engaged in domestic violence.  Judge Spearman did not even mention the alleged violation of the temporary order in denying Bret's motion for revision.

     Bret contends that his conduct does not satisfy the elements of
domestic violence, specifically, that he "stalked" Saiyin.  RCW 9A.46.110
defines stalking:
(1)  A person commits the crime of stalking if, without lawful authority
and under circumstances not amounting to a felony attempt of another crime:
     (a) He or she intentionally and repeatedly harasses or repeatedly
follows another person; and
     (b) The person being harassed or followed is placed in fear that the
stalker intends to injure the person, another person, or property of the
person or of another person.  The feeling of fear must be one that a
reasonable person in the same situation would experience under all the
circumstances; and
     (c) The stalker either:
     (i) Intends to frighten, intimidate, or harass the person; or
     (ii) Knows or reasonably should know that the person is afraid,
intimidated, or harassed even if the stalker did not intend to place the
person in fear or intimidate or harass the person.

"Harasses" means "unlawful harassment" as defined in RCW 10.14.020. *15

     (1) "Unlawful harassment" means a knowing and willful course of
conduct directed at a specific person which seriously alarms, annoys,
harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose.  The course of conduct shall be such as would cause a reasonable person to suffer substantial emotional distress, and shall actually cause substantial emotional distress to the petitioner, or, when the course of conduct would cause a reasonable parent to fear for the well-being of their child.

     (2) "Course of conduct" means a pattern of conduct composed of a
series of acts over a period of time, however short, evidencing a
continuity of purpose.  "Course of conduct" includes, in addition to any
other form of communication, contact, or conduct, the sending of an
electronic communication.  Constitutionally protected activity is not
included within the meaning of "course of conduct."

     Bret's knowing and willful conduct, typified by his frequent phone
calls outside the parenting plan's designated times and his constantly
pressuring her for additional time with the children, annoyed and harassed Saiyin such that it qualified as "unlawful harassment."*16  He knew or should have known that she felt harassed by his conduct.  The record indicates that they were in continuous conflict over the last several years, especially concerning the children.  And in her April 2004 letter, Saiyin explicitly told him she was concerned about the increasing conflict and annoyed with the repeated phone calls.

     It is less clear that Bret's conduct placed Saiyin in fear that he
intended to injure her.  While his phone calls, letters, and CPS referrals
constitute harassment, they are not in and of themselves evidence that Bret placed Saiyin in fear of being injured.  However, in a June 2004
declaration, Saiyin said Bret made exchanges of the children as difficult
as possible.  She said that he "regularly invades my personal space during exchanges just to be physically intimidating to me."  Leslie Jones, one of Saiyin's Bank of America co-workers, stated that she and other co-workers noticed Saiyin was "frightened" whenever Bret came to the bank or called or faxed her at the bank about doing something for the children.  Jones stated that Saiyin knew Bret would be mad if Saiyin did not respond to him as quickly as possible.  Further, at the February 15 hearing, Saiyin's attorney stated there was a history of "physical violence which is not referenced in any of the paperwork here because it happe(ned) before the parenting plan was entered."*17  Although the evidence is not overwhelming, it is enough to support the trial court's finding that Saiyin had a fear of injury that a reasonable person would experience under the same circumstances.  We cannot say the trial court erred in finding as it did.*18

     In sum, substantial evidence supports the court's determination that
Bret stalked Saiyin and thus engaged in domestic violence against her.*19 The court did not abuse its discretion by issuing the protection order.*20

II.  Cross-Examination

     Bret also argues that the commissioner denied him his constitutional
right to confront and cross-examine the witnesses against him.  He contends the commissioner erred by cutting short his cross-examination of Saiyin during the February 15 hearing.  Saiyin testified briefly, and only about Bret's mother's calls seeking visitation with the children.  On cross-examination, the commissioner ordered Bret to look at her rather than at Saiyin while he questioned Saiyin in order to prevent intimidation.*21  Bret asked several questions about the calls between his mother and Saiyin.  He elicited that his mother had not called Saiyin after Saiyin told her to call her attorney in the future.  The commissioner then inquired whether the parenting plan provided for visitation between the children and Bret's mother.  When Bret
said no, the commissioner ended his cross-examination.

     We will not disturb the trial court's limitation of the scope of cross-
examination unless it is the result of manifest abuse of discretion.*22
Saiyin's testimony was quite limited.  Bret had already asked her several
questions about his mother's calls.  Apparently the commissioner thought
that further explanation of the calls was irrelevant given that Bret's
mother had no visitation rights under the plan.  Bret had already
established that his mother had not called Saiyin back once she knew Saiyin wanted her to go through her attorney.  He fails to explain why further questioning was necessary.  The commissioner properly limited Bret's cross-examination.

Attorney Fees

     Saiyin requests attorney fees on appeal, citing RAP 18.1, RCW
26.09.140,23 and RCW 26.50.060(1)(g).  Under RAP 18.1, we may award attorney fees "(i)f applicable law grants to a party the right to recover reasonable attorney fees or expenses on review, before either the Court of Appeals or Supreme Court . . . ."  Under RCW 26.50.060(1)(g), we may award fees to a party who obtains a protection order.*24  We grant Saiyin her reasonable attorney fees and costs on appeal.

     The trial court is affirmed.

     For the Court*:

1 On January 31, 2005, Bret obtained an ex parte temporary restraining
order (TRO) against Saiyin. It is unclear exactly what happened to this
order.  Initially a show cause hearing on the TRO was set for February 11, but this was changed to the next day, February 1.  On February 1, the parties appeared in court, and Saiyin petitioned for the order of
protection against Bret.  The trial court commissioner entered a temporary order of protection for Saiyin and apparently dismissed Bret's restraining order, although there is no record showing that the restraining order was even discussed.

2 A parenting plan entered in Montana states that the children will reside
with Saiyin.  It granted Bret various visitation rights.

3 As a preliminary matter, Bret argues that the trial court commissioner
erred by striking as untimely his motion to dismiss the petition and
realign the parties.  But he fails to show how this alleged error
prejudiced him.  The commissioner stated both during the hearing and in the docket judgment that although she struck Bret's motion, she considered his declaration supporting his motion as his response to Saiyin's petition for the protection order.  Judge Spearman stated that he considered Bret's pleadings in denying his motion to revise the protection order.  If his pleadings were insufficient to defeat Saiyin's petition for a protection order, they would not have been sufficient to support his motion to dismiss her petition and realign the parties.

4 RCW 26.50.060(1); Hecker v. Cortinas, 110 Wn. App. 865, 869, 43 P.3d 50 (2002).

5 State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).

6 Scott v. Trans-Sys., 148 Wn.2d 701, 707-08, 64 P.3d 1 (2003) (citing
Willener v. Sweeting, 107 Wn.2d 388, 393, 730 P.2d 45 (1986)).

7 Pilcher v. Dep't of Revenue, 112 Wn. App. 428, 435, 49 P.3d 947 (2002), review denied, 149 Wn.2d 1004 (2003).

8 Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003) (citing Croton Chem. Corp. v. Birkenwald, Inc., 50 Wn.2d 684, 314 P.2d 622 (1957)).

9 City of Tacoma v. State, 117 Wn.2d 348, 351-52, 816 P.2d 7 (1991).

10 Reese v. Stroh, 128 Wn.2d 300, 312, 907 P.2d 282 (1995).

11 Spence v. Kaminski, 103 Wn. App. 325, 331, 12 P.3d 1030 (2000).

12 RCW 26.50.030(1).

13 We defer to the trier of fact on the persuasiveness of the evidence,
witness credibility, and conflicting testimony.  State v. Ainslie, 103 Wn.
App. 1, 6, 11 P.3d 318 (2000) (citing State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992)).

14 Seven of the 18 referrals do not identify the referrer.  Saiyin and a
daycare employee, respectively, made the other two referrals.

15 RCW 9A.46.110(6)(b).

16 Bret claims that he frequently contacted Saiyin because he has a constitutional right to associate with his children and she was not providing him access to them as required in the parenting plan.  But Bret can address this problem through the courts without harassing Saiyin.  And there is no lawful reason for him to insist on spending time with the children beyond what is provided in the parenting plan.  If he wants more time with them he must pursue available legal avenues to amend the parenting plan.

17 Courts may consider Saiyin's attorney's allegations because the rules of evidence need not be applied to protection order proceedings.  ER
1101(c)(4).

18 See Pilcher, 112 Wn. App. at 435.

19 On appeal, Bret continues to focus on Saiyin's actions rather than his
own in arguing against the protection order.  While the record shows that
both parties engaged in inappropriate behavior, we again note that for
purposes of her petition, Saiyin needed only to prove by a preponderance of the evidence that Bret's actions constituted domestic violence.

20 Bret also contends the protection order modifies the parenting plan and eliminates his spring, summer, and winter vacation visitation time.  But the order requires that the parties follow the parenting plan despite the terms of the order.  It explicitly states '(t)his order does not modify or change the parenting plan,' and that '(t)he parenting plan entered in
Montana remains in effect.'  Bret's concerns likely arise from paragraph 15 of the order, which states in part that his 'contact with the children
shall be only as set forth in the parties' Parenting Plan, specifically one
weekend per month, provided that the Mother receives . . . 14 days advance notice from the Father.'  But paragraph 15 mentions the weekend visitation rights not to the exclusion of the plan's other visitation rights, but in order to designate specific methods and drop off/pick up locations for the weekend visitations to prevent contact between the parties.  The order does not modify the parenting plan.

21 Bret cites nothing to support his claim that this requirement violated
his constitutional rights.

22 State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002) (citing State v. Campbell, 103 Wn.2d 1, 20, 691 P.2d 929 (1984), review denied, 471 U.S. 1094 (1985)).

23 RCW 26.09.140 does not provide a basis upon which we may award fees in this case.  It states a court may award attorney fees for 'any proceeding under this chapter,' but Chapter 26.09 RCW covers dissolution of marriage. This is a protection order proceeding commenced long after the parties divorced.

24 Gourley v. Gourley, 124 Wn. App. 52, 59, 98 P.3d 816 (2004), review
granted, 154 Wn.2d 1012 (2005).

Dad and mom divorce, Mom gets custody, but Dad ends up with custody and or shared custody. Mom agrees to no CS, but Dad fails to go get CS order dropped. Mom tells WA she does not want CS enforcement. Mom gets mad at Dad and takes him back to court for unpaid  CS - though Dad has physical custody at the time. Court says dad has to pay in excess of $65K in back support. Dad appeals. This is the ruling:

 
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   DO NOT CITE.  SEE RAP 10.4(h).

                          Court of Appeals Division II
                               State of Washington

                            Opinion Information Sheet

Docket Number:       32621-3-II
Title of Case:       Linda Marie Simpson, Respondent v. Adam Del
                     Wade Simpson, Appellant
File Date:           04/04/2006


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of Pierce County
Docket No:      94-3-04334-9
Judgment or order under review
Date filed:     11/05/2004
Judge signing:  Hon. Stephanie a Arend


                                     JUDGES
                                     ------
Authored by Christine Quinn-Brintnall
Concurring: Marywave Van Deren
            J. Robin Hunt


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            Timothy R. Gosselin
            Attorney at Law
            1145 Broadway Ste 400
            Tacoma, WA  98402-3584

Counsel for Respondent(s)
            John Theodore Jr Robson
            Attorney at Law
            2554 Locust Ave W Ste B
            University Place, WA  98466-3561


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION  II

In re the Marriage of            No.  32621-3-II

LINDA M. SIMPSON,

                    Respondent,

     v.

ADAM DEL WADE SIMPSON,           UNPUBLISHED OPINION

                    Appellant.

     QUINN-BRINTNALL, C.J.   Adam Del Wade Simpson appeals an order finding him in contempt for failure to pay back child support and entering judgment in favor of his former wife, Linda Simpson.  He argues that the court erred by (1) refusing to enforce the parties' alternative custody/support agreement as against public policy; and (2) failing to consider fully his laches argument.  We reverse and remand for additional proceedings.

FACTS
     Adam and Linda* divorced in April 1996.  At that time, the court
awarded primary custody of the couple's only child to Linda and ordered
Adam to pay $454 per month in child support.  Although it appears that Adam periodically assumed primary, if not exclusive, custody of the child,* neither party has ever asked the court to modify the 1996 order.

     Linda twice accused Adam of violating the parenting plan by failing to
return the child after scheduled visitation.  The state once charged Adam
with felony custodial interference, but the charge was dismissed when the jury was unable to reach a unanimous verdict at trial.  The state also
attempted to enforce the child support obligations, but Linda apparently
requested that the state terminate these enforcement proceedings.
In June 2004, Linda filed a contempt action asking that the court find Adam in contempt of the 1996 child support order for failure to pay support. She requested a judgment in her favor for back child support, prejudgment interest, and costs and fees.3  In her supporting declaration, she asserted that the 1996 order had not been modified; that Adam had made only 12 partial child support payments since the 1996 order was entered; that he never paid child support voluntarily; and that he was hiding his income in order to avoid making the child support payments.

     In response, Adam filed a pro se motion to dismiss, arguing
insufficiency of process and failure to state a claim on which relief can
be granted.  He also pleaded three 'affirmative defenses':  (1) prior
agreement of the parties; (2) collateral estoppel;4 and (3) laches.  In
support of his prior agreement defense, Adam argued that as early as 2000, he and Linda had agreed to share custody equally and to waive any child support.  In support of his laches argument, he asserted that Linda knew of the facts constituting the claim of action, that her delay in pursuing the claim was unreasonable, that she had led him to believe they had an operative alternative agreement about child support, and that her representations caused him to rely on this apparent agreement.  He also asserted that Linda's failure to participate in the earlier state enforcement actions supported his laches argument.

     In a supplemental declaration, Linda denied agreeing to modify the
parenting plan or child support obligation.  She asserted that Adam had
regularly interfered with the custody arrangements; that they had
consistently fought over custody issues; that she did not previously pursue enforcement through the courts because Adam was mentally unstable, abusive, and threatening and she was afraid of him; that Adam believed he was the custodial parent and claimed that Linda had to have his permission to contact the child; and that when she initiated the current proceedings he once again took the child.  She further stated that she had not attempted to recover the child through the courts 'because of expense and futility.' Clerk's Papers (CP) at 56.

     On October 12, 2004, a commissioner heard Linda's motion.  Adam's
recently retained counsel argued that Adam was not in contempt because the parties had reached an alternative agreement and laches applied.

Specifically, he asserted that Linda's refusal to pursue enforcement
through the State's earlier proceedings established unreasonable delay.
The commissioner, apparently addressing this specific argument, stated that the delay in bringing this particular action was 'not unusual.'  See Report of Proceedings (RP) (Oct. 12, 2004) at 15.

     After considering the pleadings and argument,5 the commissioner stated on the record that he found Adam in contempt and that he refused to consider the purported alternative agreement because such agreements were against public policy.6  In his written findings, the commissioner found that Adam 'intentionally failed to comply' with the 1996 order by failing to pay child support as ordered, CP at 59, and entered a judgment in favor of Linda for $44,961.63 for child support arrearages and $20,362.04 in prejudgment interest.  The commissioner's written findings of fact and conclusions of law did not address Adam's defenses or either party's compliance with the parenting plan's residential provisions.

     Adam moved pro se for revision of the commissioner's ruling.  The
superior court denied the motion for revision and adopted the
commissioner's decision.  Adam appeals.

ANALYSIS

     Adam challenges the contempt order on grounds that the court failed to properly consider his defenses.7  Specifically, he argues that (1) the
court erred in concluding that it could not consider the effect of the
purported alternative agreement between the parties because such agreements were void as against public policy, and (2) the court erred by not considering his laches defense.8

     When reviewing a commissioner's ruling on revision, the superior court examines all of the evidence and issues presented to the commissioner de novo.  It then applies a de novo review standard to the commissioner's findings of fact and conclusions.9  State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004).  Once the superior court makes a decision on revision, any further appeal is from the superior court's decision, not the commissioner's ruling.  Ramer, 151 Wn.2d at 113.  On appeal, we review a superior court order denying a motion for revision to determine whether the superior court abused its discretion and authority under RCW 2.24.05010 when it denied the motion for revision.  In re Marriage of Griffin, 114 Wn.2d 772, 779, 791 P.2d 519 (1990).  Under this standard, we do not substitute our judgment for that of the superior court unless its decision rests on unreasonable or untenable grounds.  Griffin, 114 Wn.2d at 779.

     Adam argues that it was error for the commissioner to refuse to
consider the purported alternate agreement between him and Linda and that the superior court should have granted his motion to revise the
commissioner's decision on that basis.  We agree.

     The commissioner's oral ruling indicates that he refused to consider
the purported alternate agreement because such agreements are against
public policy.  The commissioner was correct that prospective agreements to alter child support obligations are against public policy because child support is for the child's benefit and the custodial parent has no personal interest in the child support money.  Hartman v. Smith, 100 Wn.2d 766, 768, 674 P.2d 176 (1984); Ditmar v. Ditmar, 48 Wn.2d 373, 374, 293 P.2d 759 (1956); In re Marriage of Pippins, 46 Wn. App. 805, 808, 732 P.2d 1005 (1987).  But this prohibition on prospective enforcement of alternate child support agreements does not necessarily extend to prohibit the court from considering such agreements for any purpose, such as calculating the proper amount of any past due child support.

     Public policy does not bar agreements affecting retrospective child
support payments.  Because payment of past due support reimburses the custodial parent for moneys actually expended, a cause of action for past due support 'lies with the custodial parent--not with the child.'  Hartman, 100 Wn.2d at 768.  Although retrospective support payments are not generally subject to modification because each payment 'vests when due,' Hartman, 100 Wn.2d at 768, Washington courts will, under the proper circumstances, apply 'equitable principles to mitigate the harshness of particular claims for retrospective support if it will not work an injustice to the custodian or the child.'11  In re Marriage of Capetillo, 85 Wn. App. 311, 316-17, 932 P.2d 691, review denied, 132 Wn.2d 1011 (1997).

     To the extent the commissioner ruled that an agreement between Adam and Linda purporting to end or alter Adam's continuing child support obligation was void as against public policy, the commissioner did not err.

But the commissioner's refusal to consider any agreement between the
parties for any purpose was improper because the purported agreement was potentially relevant to equitable defenses that Adam was entitled to raise such as laches or equitable estoppel.  Adam clearly raised a laches defense and, although his pro se pleadings did not specifically state that he was raising an equitable estoppel argument, his 'prior agreement' argument could be construed as such an argument.  Because this error prevented the court from fully examining the merits of Adam's equitable arguments, remand is required.12  We note that on remand the trial court should also address when and to what extent each parent acted as the child's residential parent; whether they actually shared custody; and what effect, if any, the actual custody of the child should have on any child support obligations.

     Linda requests attorney fees on appeal under RCW 26.18.160.13  Because Linda is not the prevailing party at this time, her request for attorney fees under RCW 26.18.160 is denied.

     Accordingly, we reverse and remand for further proceedings consistent with this opinion.

     A majority of the panel having determined that this opinion will not
be printed in the Washington Appellate Reports, but will be filed for
public record pursuant to RCW 2.06.040, it is so ordered.

                                 QUINN-BRINTNALL, C.J.
We concur:

HUNT, J.
VAN DEREN, J.

1 We use the parties' first names for clarity.

2 The record suggests that Adam may have had primary custody of the child as of the time of the contempt hearing in October 2004, but it is unclear whether his custody was exclusive or when it began.  Additionally, the record suggests that Adam may have had primary custody of the child (1) from sometime in December 1996, to at least February 12, 1997; and (2) from July 5, 1997, until at least mid-December 1997.

3 Linda also requested 'make up residential time, as may be appropriate.' Clerk's Papers (CP) at 4.  Nothing in the record shows that the commissioner considered any custody or visitation issues and neither party raises any custody or visitation issues on appeal.

4 Adam does not raise any issues related to his collateral estoppel
argument on appeal.

5 The commissioner did not hear any testimony.

6 The commissioner stated:
     As far as I'm concerned, there is a contempt finding in this case; and
I will enter the Judgment of $65,323.67 for unpaid support.  I think it's
consistent with (Decker v. Decker, 52 Wn.2d 456, 326 P.2d 332 (1958)),
(Corrigeux v. Corrigeux, 37 Wn.2d 403, 224 P.2d 343 (1950)), (In re
Marriage of Young, 26 Wn. App. 843, 615 P.2d 508 (1980)), State ex rel.
Foster v. Superior Court (for Yakima County, 193 Wash. 99, 74 P.2d 479
(1937), overruled in part on other grounds by Decker, 52 Wn.2d at 467)
. . . Certainly Decker is the first case when any child support or spousal-
support-related issues come before the Court on contempt.  They're subject to contempt, as such. . . .
     
     . . . And certainly, the Court can entertain that at a later date; but
the fee request of $350 at this point -- I'm not going to award the $1,500
that you're asking for, but I think there's been a lot of horsing around in
this case.  Certainly, the child -- those monies, quite frankly, are not
your client's.  They are held in trust for the child --
     . . . .
     -- and that child can enforce the collection of that in her own right,
and so that's what we have to deal with, but that's a significant amount of support, and I'm satisfied that it hasn't been paid unless you have proof that there has been payment.  I'm not accepting these agreements of the parties.  I don't think they're -- I think they're against public policy, as far as I'm concerned.  All right. RP (Oct. 12, 2004) at 22-24.

7 'Once the superior court makes a decision on revision, 'the appeal is
from the superior court's decision, not the commissioner's.''  State v.
Ramer, 151 Wn.2d 106, 113, 86 P.2d 132 (2004) (quoting State v. Hoffman, 115 Wn. App. 91, 101, 60 P.3d 1261 (2003)).  Thus, even though Adam's arguments on appeal focus on the commissioner's actions, he is only entitled to appeal the denial of his motion to revise the commissioner's decision.

8 Linda asserts that Adam also argues that the superior court made its
decision without reviewing the entire file or the report of proceedings.
Although Adam mentions the possible lack of record on review, he does not raise any arguments related to this alleged deficiency.  Furthermore, even if he did, the record does not support such an assertion.

9 Linda argues that Adam failed to present these arguments below and cannot now raise them on appeal.  Although Adam does not appear to have raised these same issues in his motion to revise the commissioner's ruling, the record shows that he presented and argued essentially these issues before the commissioner.  Given that the superior court reviews all the evidence and issues presented to the commissioner, Adam has not waived these arguments.  See Ramer, 151 Wn.2d at 113 (citing In re Marriage of Moody, 137 Wn.2d 979, 993, 976 P.2d 1240 (1999); State v. Wicker, 105 Wn. App. 428, 433, 20 P.3d 1007 (2001)).

10 RCW 2.24.050 provides:
All of the acts and proceedings of court commissioners hereunder shall be subject to revision by the superior court.  Any party in interest may have such revision upon demand made by written motion, filed with the clerk of the superior court, within ten days after the entry of any order or judgment of the court commissioner.  Such revision shall be upon the
records of the case, and the findings of fact and conclusions of law
entered by the court commissioner, and unless a demand for revision is made within ten days from the entry of the order or judgment of the court commissioner, the orders and judgments shall be and become the orders and judgments of the superior court, and appellate review thereof may be sought in the same fashion as review of like orders and judgments entered by the judge.

11 We note that, in this context, the 'trial court does not have unfettered
discretion to relieve the payor from past due support payment.  Rather, it must identify an equitable principle that justifies departure from the
general rule that support obligations will not be modified
retrospectively.'  In re Marriage of Hunter, 52 Wn. App. 265, 269, 758 P.2d 1019 (1988), review denied, 112 Wn.2d 1006 (1989).

12 Because we conclude that the court must consider Adam's laches argument in light of this purported agreement, we need not reach Adam's argument asserting that the commissioner did not properly resolve his laches claim. 13 RCW 26.18.160 provides:

In any action to enforce a support or maintenance order under this chapter, the prevailing party is entitled to a recovery of costs, including an award for reasonable attorney fees.  An obligor may not be considered a prevailing party under this section unless the obligee has acted in bad faith in connection with the proceeding in question.
 

WA state Supreme Court holds that you can be jailed on a the vioplation of a RO whether it is a vaild order or not:

"The elements of a crime are those facts 'that the prosecution must
prove to sustain a conviction.'  Black's Law Dictionary 559 (8th ed. 2004).

It is proper to first look to the statute to determine the elements of a
crime.  Cf. State v. Emmanuel, 42 Wn.2d 799, 820, 259 P.2d 845 (1953).
The statute says in relevant part that '(w)henever an order is granted . .
. and the . . . person to be restrained knows of the order, a violation . .
. . is a class C felony if the offender has at least two previous
convictions.'  RCW 26.50.110(1), (5).  

Nothing in the statute requires the State to prove the validity of a Washington no-contact order. "



taken from an unpublished opinion:
 

   Supreme Court of the State of Washington

                            Opinion Information Sheet

Docket Number:       76156-6
Title of Case:       State of Washington, Respondent V Clay Jason
                     Miller, Petitioner.
 

Proof that there is hidden alimony in CS

http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=316587MAJ

IF you can get your ex to AGREE to you having custody in the future, you have help in maintaining that agreement in the future.

http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=231224MAJ

For example, you are both fit parents.
You agree with the ex that she can have the kids until 2008.
Then you get them for the next 3 school years.
BM's lawyer thinks she can modify between now and then.
You both remain fit parents throuh 2008 and BM tries to modify prior to the change over.

The Statute [RCW 26.09.260(1)] says:
A trial court hearing a modification action, on the other hand,
presumes the best interests of the child require the primary placement
remain intact.

 In this case, the BM states that this means she maintains placement and the BF has to meet the threshold. However, the court states that the AGREED PARENTING PLAN makes the BF the primary placement in this modification action, and thus SHE must PROVE that changing the placement is not in the kids' best interest.


WORK TOWARD AN AGREED PARENTING PLAN.

Supreme Court of the State of Washington

                            Opinion Information Sheet

Docket Number:       75262-1
Title of Case:       In re the Parentage of: C.A.M.A.,
                     Christian E. Appel v. Herlinde Appel
File Date:           04/07/2005
Oral Argument Date:  11/16/2004


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court,
            County
            Honorable David F Hulbert


                                    JUSTICES
                                    --------
Authored by Richard B. Sanders
Concurring: Faith Ireland
            Barbara A. Madsen
            Bobbe J Bridge
            Charles W. Johnson
            Gerry L Alexander
            Susan Owens
            Tom Chambers
            Mary Fairhurst


                                COUNSEL OF RECORD
                                -----------------
Counsel for Petitioner(s)
            Jordan Gross
            Yarmuth Wilsdon Calfo PLLC
            Idx Tower
            925 Fourth Ave Ste 2500
            Seattle, WA  98104

Counsel for Respondent(s)
            Shelby R Frost Lemmel
            Wiggins & Masters PLLC
            241 Madison Ave N
            Bainbridge Island, WA  98110-1811

            Kenneth Wendell Masters
            Attorney at Law
            241 Madison Ave N
            Bainbridge Island, WA  98110-1811

            Mark Theodore Patterson
            Rockefeller Law Office LLP
            PO Box 12057
            Everett, WA  98206-2057

            Charles Kenneth Wiggins
            Attorney at Law
            241 Madison Ave N
            Bainbridge Island, WA  98110-1811

Amicus Curiae on behalf of Washington State Attorney General
            William Berggren Collins
            Attorney at Law
            Higways Licenses Bldg
            PO Box 40100
            Olympia, WA  98504-0100

Amicus Curiae on behalf of Washington State Bar Association
            Marc T Christianson
            Attorney at Law
            3515 S 15th St Ste 201
            Tacoma, WA  98405

            Jonathan Mark Weiss
            Law Office of J. Mark Weiss PS
            1200 5th Ave Ste 1810
            Seattle, WA  98101-3128

Counsel for Other Parties
            Christine Norton (Appearing Pro Se)
            1921 Sherman St. #15
            Port Townsend, WA  98368


In the Supreme Court of the State of Washington

IN RE PARENTAGE OF C.A.M.A.,   )
a minor child,                             )
                                                 ) No. 75262-1
CHRISTIAN E. APPEL,                  )
                                                 ) En Banc
Petitioner,                                   )
                                                 ) Filed April 7, 2005
v.                                              )
                                                 )
HERLINDE APPEL,                        )
                                                 )
          Respondent.                     )

SANDERS, J. -- We return to grandparent visitation, addressed previously in both the United States Supreme Court, Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), and in this court, In re Custody of Smith, 137 Wn.2d 1, 969 P.2d 21 (1998), aff'd on narrower grounds by Troxel, 530 U.S. 57.  But here we examine a different grandparent visitation statute, RCW 26.09.240. Applying Troxel and Smith we hold this statute is unconstitutional, reverse the Court of Appeals, and reinstate the trial court's decision.

FACTS AND PROCEDURAL HISTORY
"C" was born December 25, 1992, to Christine Sue Norton and Christian Appel (the parent), who were not married and whose relationship ended after C's first birthday.
A year and a half later the parent and C moved to Germany where they lived with the parent's parents, Herlinde and Joachim Appel.1  The parent and C lived in Germany with the grandparents for two years, and during this time the grandparents cared for C while the parent was at work.
In 1997, the grandparents, the parent, and C visited the parent's older
sister in California.  The parent informed the grandparents that he and C
would stay in the United States, but grandparents convinced him that C
should return to Germany with them until the parent had established a
stable home.
In 1999, the parent told the grandparents that he was engaged to be married and wanted C to live with him, his new wife, and her children in Snohomish County, Washington.  In 2000 C attended her father's wedding and, while the grandparents were traveling after the wedding, the parent filed a parentage action in Snohomish County Superior Court.  The Superior Court issued a temporary parenting plan which was agreed to by Norton (C's mother), and which included provisions for Norton to have visitation with C.
Upon the grandparents' return the parent informed them of the action and the custody documentation.  The grandparent filed a motion to intervene.
The grandparent moved to have the custody issue decided in Germany, but the Court of Appeals held the Snohomish County Superior Court had jurisdiction. Upon remand from this prior appeal, the grandparent petitioned for visitation.
The Superior Court held that C's parents were fit, and that no
constitutional third party visitation statute existed in Washington.  The
court granted the parent's motion to dismiss the petition.
The Court of Appeals, Division One, reversed in a published decision.2  The court found RCW 26.09.240 constitutional under Troxel and Smith.  We accepted discretionary review.

ANALYSIS
I.   RCW 26.09.240 unconstitutionally infringes on a fit parent's right to
control visitation with his/her child under the Smith and Troxel cases

A.   Standard of Review

The interpretation of a statute and the determination of whether a statute
violates the United States Constitution are issues of law that are reviewed de novo.3  What constitutional standard is to be applied in this case -- whether to apply strict scrutiny or some lesser tier of review -- is a matter of dispute among the parties. This is because the grandparent contends Smith is no longer good law. We disagree.
We held in Smith that "parents have a fundamental right to autonomy in
child-rearing decisions," In re Smith, 137 Wn.2d at 13, and this "liberty"
interest is protected as a matter of substantive due process under the
Fourteenth Amendment. Id. at 15.  We held state interference with this
interest "is justified only if the state can show that it has a compelling
interest and such interference is narrowly drawn to meet only the
compelling state interest involved."  Id.  This is the "strict scrutiny"
test. AK-WA, Inc. v. Dear, 66 Wn. App. 484, 492, 832 P.2d 877 (1992)
(citing Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274
(1972)).

Because the standard of review -- strict scrutiny versus the "balancing"
test employed in Troxel -- turns on whether Smith is still good law, we
address that issue first.  The Smith opinion decided two consolidated
cases.  One of those cases (Troxel) was appealed to the United States
Supreme Court, which affirmed the Washington State Supreme Court on
narrower grounds.

The In re Custody of Smith case was not appealed to the United States
Supreme Court.  While the effect of the United States Supreme Court's
Troxel opinion affirming Smith on narrower grounds is not clearly
established by the parties, the fact that Smith still stands as the opinion
by the highest court to hear the In re Custody of Smith case dictates that
Smith remains good law unless inconsistent with Troxel.  Troxel did not
vacate Smith; Troxel did not reverse Smith; Troxel did not even narrow
Smith's holding.  The United State Supreme Court explicitly declined to
consider the primary constitutional question passed on by the Washington Supreme Court -- whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context.

Troxel, 530 U.S. at 73.
We need not decide the precise effect of an affirmance on narrower grounds of our cases by the United States Supreme Court , because Smith stands as independent, unappealed precedent.  We conclude Smith remains binding
precedent.4
The grandparent also contends Troxel requires challenges to grandparent visitation statutes be brought "as applied" rather than as "facial" challenges, thereby claiming the need for a factfinding hearing before evaluating the statute's constitutionality. But the parent's challenge in this case stems from the language of the statute itself.  It does not depend on the application of facts particular to this case.  The parent claims the statute can never be applied under any circumstances without violating numerous minimal constitutional requirements set forth by both the Washington State Supreme Court and the United States Supreme Court. The challenge is therefore facial.
B.   RCW 26.09.240, Smith, and Troxel

This visitation statute provides:
(1) A person other than a parent may petition the court for visitation with
a child at any time or may intervene in a pending dissolution, legal
separation, or modification of parenting plan proceeding. A person other
than a parent may not petition for visitation under this section unless the
child's parent or parents have commenced an action under this chapter.
(2) A petition for visitation with a child by a person other than a parent
must be filed in the county in which the child resides.
(3) A petition for visitation or a motion to intervene pursuant to this
section shall be dismissed unless the petitioner or intervenor can
demonstrate by clear and convincing evidence that a significant
relationship exists with the child with whom visitation is sought. If the
petition or motion is dismissed for failure to establish the existence of a
significant relationship, the petitioner or intervenor shall be ordered to
pay reasonable attorney's fees and costs to the parent, parents, other
custodian, or representative of the child who responds to this petition or
motion.
(4) The court may order visitation between the petitioner or intervenor and the child between whom a significant relationship exists upon a finding supported by the evidence that the visitation is in the child's best
interests.
(5)(a) Visitation with a grandparent shall be presumed to be in the child's
best interests when a significant relationship has been shown to exist.
This presumption may be rebutted by a preponderance of evidence showing that visitation would endanger the child's physical, mental, or emotional health.
(b) If the court finds that reasonable visitation by a grandparent would be in the child's best interest except for hostilities that exist between the
grandparent and one or both of the parents or person with whom the child lives, the court may set the matter for mediation under RCW 26.09.015.
(6) The court may consider the following factors when making a
determination of the child's best interests:
(a) The strength of the relationship between the child and the petitioner;
(b) The relationship between each of the child's parents or the person with whom the child is residing and the petitioner;
(c) The nature and reason for either parent's objection to granting the
petitioner visitation;
(d) The effect that granting visitation will have on the relationship
between the child and the child's parents or the person with whom the child is residing;
(e) The residential time sharing arrangements between the parents;
(f) The good faith of the petitioner;
(g) Any criminal history or history of physical, emotional, or sexual abuse or neglect by the petitioner; and
(h) Any other factor relevant to the child's best interest.
(7) The restrictions of RCW 26.09.191 that apply to parents shall be
applied to a petitioner or intervenor who is not a parent. The nature and
extent of visitation, subject to these restrictions, is in the discretion
of the court.
(8) The court may order an investigation and report concerning the proposed visitation or may appoint a guardian ad litem as provided in RCW 26.09.220.
(9) Visitation granted pursuant to this section shall be incorporated into
the parenting plan for the child.
(10) The court may modify or terminate visitation rights granted pursuant to this section in any subsequent modification action upon a showing that the visitation is no longer in the best interest of the child.

RCW 26.09.240.
The parent challenges this statute under both Smith and Troxel. In Smith, we held "parents have a fundamental right to autonomy in child-rearing decisions," In re Smith, 137 Wn.2d at 13, and this "liberty" interest is protected as a matter of substantive due process under the Fourteenth Amendment. Id. at 15.  We held state interference with this interest must be subjected to strict scrutiny and thus "is justified only if the state can show that it has a compelling interest and such interference is narrowly drawn to meet only the compelling state interest involved." Id.
We recognized while "in certain circumstances where a child has enjoyed a substantial relationship with a third person, arbitrarily depriving the child of the relationship could cause severe psychological harm to the child," id. at 20, "(s)hort of preventing harm to the child, the standard of `best interest of the child' is insufficient to serve as a compelling state interest overruling a parent's fundamental rights." Id.
Thus, Smith required that a grandparent (or other third party seeking
visitation) must show that denial of visitation would result in harm to the
child before a court could order visitation over the objections of a fit
parent.  "It is not within the province of the state to make significant
decisions concerning the custody of children merely because it could make a `better' decision (than the parent)."5 Id.  While the statute at issue here was not before the Smith court (though a precursor statute was), Smith did not limit application of constitutional requirements to the statutes challenged in that case.
Troxel was a plurality opinion.  The parties agree the plurality opinion by
Justice O'Connor is the narrowest ruling, representing the holding of the
court.  See Marks v. United States, 430 U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977).
The Troxel plurality stated "(t)he liberty interest in this case -- the
interest of parents in the care, custody, and control of their children --
is perhaps the oldest of the fundamental liberty interests recognized by
this Court."  Troxel, 530 U.S. at 65.  While the Court cited the breadth of
the visitation statute at issue in that case, the central focus of Troxel
was failure of the Washington statute to afford a presumption that parents act in the best interests of their child.  The Court identified the flaw in the statute:
(The statute) contains no requirement that a court accord the parent's
decision any presumption of validity or any weight whatsoever.  Instead,
the Washington statute places the best-interest determination solely in the hands of the judge. Should the judge disagree with the parent's estimation of the child's best interests, the judge's view necessarily prevails.
Thus, in practical effect, in the State of Washington a court can disregard
and overturn any decision by a fit custodial parent concerning visitation
whenever a third party affected by the decision files a visitation
petition, based solely on the judge's determination of the child's best
interests.

Id. at 67.
The Court further focused on the statute a few paragraphs later:
Accordingly, so long as a parent adequately cares for his or her children
(i.e., is fit), there will normally be no reason for the State to inject
itself into the private realm of the family to further question the ability
of that parent to make the best decisions concerning the rearing of that
parent's children.

The problem here is not that the Washington Superior Court intervened, but
that when it did so, it gave no special weight at all to Granville's
determination of her daughters' best interests.  More importantly, it
appears that the Superior Court applied exactly the opposite presumption.

. . . .

. . . . In effect, the judge placed on . . . the fit custodial parent, the
burden of disproving that visitation would be in the best interest of her
daughters.

Id. at 68-69 (citations omitted).
The Court's holding emerges in the next paragraph:
The decisional framework employed by the Superior Court directly
contravened the traditional presumption that a fit parent will act in the
best interest of his or her child. In that respect, the court's presumption
failed to provide any protection for Granville's fundamental constitutional
right to make decisions concerning the rearing of her own daughters. . . .
And, if a fit parent's decision of the kind at issue here becomes subject
to judicial review, the court must accord at least some special weight to
the parent's own determination.

Id. at 69-70 (citations omitted) (emphasis added).
Returning to the text of the current statute, it is clear that subsection
(5)(a) directly contravenes the constitutionally required presumption that
the fit parent acts in the child's best interests.  Subsection 5(a) states
that "(v)isitation with a grandparent shall be presumed to be in the
child's best interests," and provides that this presumption may be rebutted
by the fit parent (who would presumably be opposing the visitation request)
"by a preponderance of evidence showing that visitation would endanger the
child's physical, mental, or emotional health."  The United States Supreme
Court held that a court must accord "special weight" to the parent's own
determination, and because subsection (5)(a) establishes a presumption
antonymous to that constitutionally required "special weight," the
subsection must fail.6
While the "nature and reason for either parent's objection to granting the
petitioner visitation" is a factor that the court may consider under RCW
26.09.240(6)(c), under Troxel the mere permissive consideration of such an
objection is not enough.  "Special weight" must be accorded the fit
parent's determination of what is in the child's best interests.
Under Smith's broader holding, the statute suffers from a number of other
constitutional defects.  The standard in subsection (4) used to determine
whether to grant visitation -- the "best interests of the child" standard -
- was expressly rejected in Smith.  Smith's central holding required a
showing of harm to the child to overcome the presumption that a fit parent
acts in the child's best interests:  "Short of preventing harm to the
child, the standard of `best interest of the child' is insufficient to
serve as a compelling state interest overruling a parent's fundamental
rights." Smith, 137 Wn.2d at 20.
The grandparent contends that the statutory requirement that a visitation
petitioner establish a "substantial relationship" with the child preserves
the statute's constitutionality under Smith.  Here the Court of Appeals
held the "significant relationship" requirement, together with the list of
factors that the trial court may consider, rendered the statute
constitutional under Troxel and Smith.  In re Parentage of C.A.M.A., 120
Wn. App. 199, 213-14, 84 P.3d 1253 (2004).  But in Smith we noted the
failure of the statute to require a "substantial relationship" between a
third party and a child in order for a visitation petition to even be heard
by a court, id. at 21, and we discussed that requirement (1) as a threshold
test, and (2) as part of the required showing of harm to the child in order
to overcome the presumption that the parent acts in the child's best
interests.  We held that establishing a "substantial relationship" is a
necessary, though not sufficient, component of a visitation statute that
comports with due process.
The Court of Appeals also reversed the "special factors" test from Troxel.
Troxel clearly treated the existence of "special factors that might justify
the State's interference with (a parent's) fundamental right to make
decisions concerning the rearing of her two daughters" as necessary, but
not sufficient, to allow court to order visitation over a fit parent's
objections.  Troxel, 530 U.S. at 68.  A court may establish such "special
factors," but must also evaluate those factors in light of the "special
weight" the court accords to the fit parent's wishes. Id. at 68-69.
The Court of Appeals held as a matter of law that "one such (special)
factor is a longstanding (significant) relationship between the petitioner
and the child."7 In re C.A.M.A., 120 Wn. App. at 214.  While this may be,
the existence of such a "special factor" does not bear on the
constitutionality of the statute, but on whether, under a constitutional
statute, a grandparent could overcome the presumption that a fit parent
acts in a child's best interest.
The grandparent also cites several cases from other states to buttress her
claims that RCW 26.09.240 is constitutional.  However, the statutes
considered in those out-of-state cases did not contain the constitutionally
flawed presumption in favor of grandparent visitation present in
Washington's statute, and those courts had not previously held that a
showing of harm to the child is required to overcome the presumption that a
fit parent acts in the best interest of the child, as the Washington State
Supreme Court held in Smith.8
We conclude RCW 26.09.240's presumption in favor of grandparent visitation
is unconstitutional under Troxel and the application of the "best interests
of the child" standard rather than a "harm to the child" standard is
unconstitutional under Smith.
II.  The unconstitutional portions of RCW 26.09.240, combined with the
constitutionally required presumptions which are not contained in the text,
render the entire statute unconstitutional

The test for whether unconstitutional statutory provisions can be severed
from constitutional provisions is:
Ordinarily, only the part of an enactment that is constitutionally infirm
will be invalidated, leaving the rest intact. An unconstitutional provision
may not be severed, however, if its connection to the remaining,
constitutionally sound provision is so strong "that it could not be
believed that the legislature would have passed one without the other; or
where the part eliminated is so intimately connected with the balance of
the act as to make it useless to accomplish the purposes of the
legislature." Also, the court is obliged to strike down the entire act if
the result of striking only the proviso is to give the remainder of the
statute a much broader scope.

Guard v. Jackson, 83 Wn. App. 325, 333, 921 P.2d 544 (1996) (footnotes
omitted) (quoting Leonard v. City of Spokane, 127 Wn.2d 194, 201, 897 P.2d
358 (1995)), aff'd, 132 Wn.2d 660, 940 P.2d 642 (1997).
Further, unless we conclude the Legislature would have passed the statute
absent the unconstitutional provisions, the proper remedy is complete
statutory invalidation rather than changing legislative intent by upsetting
the legislative compromise.  Griffin v. Eller, 130 Wn.2d 58, 69-70, 922
P.2d 788 (1996).
There does not appear to be a severability clause applicable to subsection
5(a) (the grandparent presumption) or to the "best interests of the child"
standard used throughout the statute.  Subsection 5(a) was added in 1996,
and the two severability clauses in chapter 26.09 RCW by their terms apply
only to the 1987 and 1989 acts that amended the statute. RCW 26.09.913
(Laws of 1987, ch. 460); RCW 26.09.914 (Laws of 1989, ch. 375).  The "best
interest of the child" standard was in the original statute enacted as Laws
of 1973, Ex. Sess., ch. 157 sec. 24.  This bill did not contain a
severability clause, nor did the 1996 amendments that substantially rewrote
the section but retained the "best interest of the child" standard.  See
Laws of 1996, ch. 177 sec. 1(10).  The presence of an applicable
severability clause is evidence that the legislature would have enacted the
constitutional portions of a statute without the unconstitutional portions,
State v. Anderson, 81 Wn.2d 234, 236, 501 P.2d 184 (1972), but a
severability clause is not necessary in order to meet the severability
test.  See, e.g., Guard, 83 Wn. App. 325.
Under Troxel the grandparent's presumption in 5(a) must be struck and this
court would have to imply the constitutionally required Troxel presumption
giving special weight to a fit parent's decisions concerning visitation.
Instead of the permissive consideration of the "nature and reason"9 for a
fit parent's objection to visitation in subsection 6, we would have to
imply both mandatory consideration and that the parent's wishes be given
special weight.
Smith requires more.  Since harm to the child from lack of visitation must
be demonstrated to order visitation, the "best interests" standard
contained in subsection (4) would be invalid and the court would have to
imply a "harm to the child" standard in its place.  The same "harm to the
child" standard would have to be substituted in subsection 5(b), which
provides for mediation if "reasonable visitation by a grandparent would be in the child's best interest except for hostilities that exist between the
grandparent and one or both of the parents." RCW 26.09.240(5)(b).10  This would be an extensive rewrite of the statute.
We conclude that the legislature would not have passed the statute without both the grandparent presumption and the best-interests-of-the-child standard.  We cannot know how the legislative compromise regarding the presumptions and standards applied to visitation decisions affected the legislature's choices regarding the factors set forth in subsection (6).
With different presumptions and a different standard the legislature may
well have chosen different factors for consideration in making visitation
decisions, and such a drastic rewrite of the statute by the court would
"upset() the legislative compromise."  Griffin, 130 Wn. 2d at 69.
"Courts do not amend statutes by judicial construction, nor rewrite
statutes `to avoid difficulties in construing and applying them.'" Millay
v. Cam, 135 Wn.2d 193, 203, 955 P.2d 791 (1998) (citations omitted).
"(T)here is a difference between adopting a saving construction and
rewriting legislation altogether." Laurence H. Tribe, American
Constitutional Law sec. 12-30, at 1032 (2d ed. 1988). We show greater
respect for the legislature by preserving the legislature's fundamental
role to rewrite the statute rather than undertaking that legislative task
ourselves. Therefore we hold the statute unconstitutional in its entirety.

III. Attorney Fees

The parent requested attorney fees before the Court of Appeals under RCW 26.09.140: The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for reasonable attorney's fees or other professional fees in connection therewith, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or enforcement or modification proceedings after entry of judgment.
Upon any appeal, the appellate court may, in its discretion, order a party
to pay for the cost to the other party of maintaining the appeal and
attorney's fees in addition to statutory costs.

The Court of Appeals appears to have implicitly held that this statute did
not apply.  The court held that RCW 26.09.140 was not available because
there is an attorney fees clause in RCW 26.09.240(3). In re C.A.M.A., 120 Wn. App. at 216.
This argument is untenable.  The attorney fees clause in RCW 26.09.240(3) is tied to the "significant relationship" threshold test, and requires that attorney fees be paid by those who petition for visitation and cannot meet the threshold test of proving, by clear and convincing evidence, a
significant relationship to the child.  This is clearly intended as a
disincentive to filing by a petitioner with a remote relationship or to
filing frivolous or nuisance petitions.
But RCW 26.09.240(3) says nothing about limiting the application of RCW
26.09.140.  That statute provides for attorney fees based on the financial
resources of each party "maintaining or defending any proceeding under this chapter." RCW 26.09.140.  The grandparent's intervention and petition for visitation is clearly a "proceeding under this chapter."  The parent filed an affidavit of financial need as required by RAP 18.1 with the Court of Appeals.  Under RAP 18.1(i) we remand for the trial court to weigh the financial resource of the parties and award fees to the parent under RCW 26.09.140 if appropriate.

CONCLUSION
The Court of Appeals is reversed.  RCW 26.09.240 is unconstitutional and invalid.  The case is remanded to the trial court to weigh the financial  resource of the parties and determine if it will award fees to the parent under RCW 26.09.140.

WE CONCUR:

1 Only Herlinde Appel is a party to this litigation.  We refer to her as
the grandparent.
2 In re Parentage of C.A.M.A., 120 Wn. App. 199, 84 P.3d 1253 (2004).
3 Cockle v. Dep't of Labor & Indus., 142 Wn.2d 801, 807, 16 P.3d 583
(2001); State v. Blilie, 132 Wn.2d 484, 489, 939 P.2d 691 (1997).
4 Yet even under the more lenient "balancing" test used by the United
States Supreme Court in the Troxel decision, Washington's current third
party visitation statute is unconstitutional.
5 Smith also required that a court "take into consideration such factors as the parents' reasons for restricting visitation with the petitioner or any
allegations of past physical or mental abuse by petitioner." In re Smith,
137 Wn.2d at 21. The former factor is encompassed by Troxel's
constitutionally mandated presumption (discussed below) and the latter
factor "may" be considered by a court under subsection 6(g) of the statute. RCW 26.09.240(6)(g).
6 A North Dakota statute containing a similar presumption in favor of
grandparent visitation and placing a similar burden on parents to overcome
that presumption was found unconstitutional in the pre-Troxel case Hoff v. Berg, 595 N.W. 2d 285, 290 (N.D. 1999).  Hoff was cited by the Troxel
plurality. Troxel, 530 U.S. at 70.  The Alabama Court of Civil Appeals held a statute containing a rebuttable presumption in favor of grandparent visitation unconstitutional under Troxel in R.S.C. v. J.B.C., 812 So. 2d 361 (Ala. Civ. App. 2001).
7 Without defining it, the Court of Appeals used the term "de facto
parental" relationship.  However, under the terms of the statute, the
grandparent's longstanding relationship was one form of the "significant
relationship" required by the statute. The Court of Appeals appeared to
conclude that a "de facto parental" relationship was established by the
briefing.  It did not cite to the record, and the trial court did not enter
any such finding.  The parent did not dispute that the grandparent had a
substantial or significant relationship with C, although the parent did
dispute whether the grandparent was a "de facto" parent of C.  Suppl. Br. of Pet'r at 14.
8 The grandparent cited four cases. Williams v. Williams, 132 N.M. 445, 50  P.3d 194 (Ct. App. 2002), concerned a New Mexico statute that utilized a multifactor balancing test to determine grandparent visitation.  However, that test did not include a presumption in favor of grandparent visitation, but the New Mexico courts had previously identified as a factor "`the wishes and opinion of the parents.'"  Williams, 50 P.3d at 197 (quoting Lucero v. Hart, 120 N.M. 794, 800, 907 P.2d 198 (Ct. App. 1995)).  The New Mexico Court of Appeals held that the trial court had given "appropriate weight to the wishes of Parents" under Troxel.  Id. at 200. In DeGraeve v. Holm, 30 Kan. App. 2d 865, 50 P.3d 509 (2002), the Kansas statute at issue did not provide a presumption in favor of grandparent visitation.  50 P.3d at 512.  The court stated that the burden of overcoming the presumption that a fit parent acts in the best interest of the child was on the grandparent.  Id.  Further, DeGraeve directly contradicts Smith as it explicitly endorsed the "best interests" test as the measure of when visitation can be granted.
The Arizona case of Jackson v. Tangreen, 199 Ariz. 306, 18 P.3d 100 (Ct. App. 2000) also concerned a grandparent visitation statute which required balancing numerous factors, but which did not include a presumption in favor of visitation.  The court suggested that the specific factors present in that statute "`show() that the legislature was conscious of parents' superior right to the custody and care of their children.'" 18 P.3d at 104 (quoting Graville v. Dodge, 195 Ariz. 119, 127, 985 P.2d 604 (Ct. App.
1999)).  However, the court's discussion of how the "procedural factors" in the statute enforced the constitutionally mandated presumption that parents act in the best interest of their children was bereft of analysis.  A later Arizona case, not cited by the grandparent, provides clarification.  In McGovern v. McGovern, 201 Ariz. 172, 33 P.3d 506 (Ct. App. 2001), the Arizona Court of Appeals specifically held that Arizona courts "should recognize and apply a presumption that a fit parent acts in his or her child's best interest in decisions concerning the child's care, custody, and control, including decisions concerning grandparent visitation."  McGovern, 33 P.3d at 511.  The Arizona courts also apply the "best interest of the child" standard in visitation cases.  Id.
Finally, the grandparent cites Rideout v. Riendeau, 2000 ME 198, 761 A.2d 291.  The Rideout court held that the state has "a compelling interest in providing a forum within which grandparents who have acted as parents to their grandchild may seek continued contact with that child."  Rideout, 761 A.2d at 294 (emphasis added).  No other court cited by the parties has held that such an interest is "compelling" under the Fourteenth Amendment, and the Washington State Supreme Court in Smith implicitly rejected that interest as compelling, or at least as compelling enough, without a showing of harm to the child, to overcome a fit parent's fundamental right to control visitation.  In fact, the Rideout case actually tracks the Smith analysis, since the Maine Supreme Court required a greater showing than the "best interest of the child" in order to overcome the presumption in favor of fit parents. Id. at 301.  And while Rideout may be persuasive precedent for the argument that termination of a longstanding parent-like relationship between a grandparent and a child actually causes harm to that child sufficient that the state may intervene (a point explicitly recognized in Smith), the case has little bearing on the constitutionality of Washington's statute.  The Maine statute at issue did not provide a presumption in favor of grandparent visitation.
9 RCW 26.09.240(6)(c).
10 This court would have to "rewrite" the subsection to read "if the court
finds that lack of reasonable visitation by a grandparent would harm the
child, and that such visitation would be granted except for hostilities . .
. ."
 

restitution? Did the fact they received CS factor into the amount they pay? As a parent, were you made to pay on their behalf? Were you the CP or NCP?

In our current case, there is a likelihood that Ss will be ordered to pay restitution to DS1 and DS2. Will DH CP of DS1&2 be made to partially pay for the restitution of SS, of whom he is NCP? Any guesses out there?

that he is going to join Job Corps when he turns 16. He has started failing his middle school classes.

While this would be the most opportune time to seize custody or have him emancipated, I look at the "loss" of possibilities for him and I want to smack BM really hard.

SS's older half bro is going to Job Corp as soon as they have an opening for him. BM has made no point of encouraging their education. She says:
Well, they just aren't up to par like the other kids.
I was stupid as a kid too, and I did all right without an education.
So, they will never go to college, that's all you need your diploma for anyway.
What can I do? SS just doesn't get it, so stop demanding any common sense from him.

...And other crap. Same woman that has SS on medication for ADD/ADHD and refuses to let him wear his glasses or take the medication at our home. URRGGGGHHHHH!!!

I am the spouse of a military member. He is in Iraq. I retained custody of his son who just turned six.

WE live in on-post housing. The tenancy agreement we are required to sign says that we are waiving the WA state land-lord tenant act and going only by Federal laws.

My step son was playing with a lighter and lit the upstairs of our home on fire. The administrators of the Fort Lewis lodging are trying to make my husband pay under terms of the UCMJ.

We have two insurance companies - both with liability coverage. One is citing a defense that is connected to some prior case because my Ss is too young to understand the consequences of his actions and thus cannot be held accountable for the damages.

The second insurance company does not know what case law this might be, and refuses to pay more than half.

1. Are you aware of any Federal or WA State case law which might absolve my SS of responsibility for this and thus absolve my husband and I as well?

2. Is it illegal for the insurance companies to confirm coverage, but refuse to protect us?

All parties and orders are in WA.

BM is CP. DH is NCP. My Step son pled guilty to and was convicted of Child Rape in the First degree in Jan of 2006.  As part of sentencing, a no-contact order with his victims (two half siblings, DH and I's children)was put into place. No expiration date is noted. SS has to complete a 22 month treatment program and has 9 months of jail time hanging over his head.

SS and his uncle decided to purchase individual gifts for DH, I, and the 2 siblings he is to have no contact with. I am being told that it was SS's idea. SS does not plan to sign the gift tag on the presents, but it is common knowledge among family members that it has already been purchased and wrapped.

I am torn about it. Part of me is vindictive and wants SS to get in trouble for it. Part of me is just protective of my own sons and thinks it is a BAD idea at this time. Part of me thinks it might be less of a deal than I think.

SS is known for telling on himself to his probation officer. He has been pulled back in front of the judge twice to decide on whether to revoke the SSODA treatment program and make him finish the jail time. The last time he was warned he had run out of chances.

Given the above information my questions are these:

1.  Should we expect SS's PO to request revocation of SS's probation if/when this matter becomes known?

2. Can I as a parent of the victims come under any negative legal effects if I allow the gifts to be given to the boys?

Court of Appeals Division II
                               State of Washington

http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=335077MAJ

non-bio father with visitation/residential time gets the time upheld.

State is WA and all parties reside in state, though in 2 separate counties.
Order is in BM's county. BM is CP. I am NCP. I have one 15 year old son affected under CS and PP orders.

CS order is from October 2002
Parenting plan is from October 1994 with a "temporary order" addendum in November 2001.

I lost my job today. I have a CS order that gives a deviation from guideline for my other 2 children. The support transfer payment is $300 a month currently (a $85 a month doward deviation for a teenager).

I was fired from my job for breaking a machine (to the tune of $18K) because I failed to notice a warning light and the machine failed to shut down -- as it was designed to do. I have filed for unemployment, but am unsure whether I will be given it without a fight.

My son was tried and convicted of raping his half brothers (my sons with my current wife) and there is a no contact order in place. I must have all visitation with my 15 year old son elsewhere, or only bring him to my home when my wife visits her father in Oregon for the weekend with the younger boys. My parents will help with only one visit per month.

This circumstance has increased my visitation costs exponentially from what they were. To be economical I have been taking my son camping but the weather will not always permit. Further, there are considerable limits on my son (sometimes his behavior is such that his probation officer refuses to let DS go camping and thus I am left with no viable lodging for us during visitation.) I have tried using a motel for the overnights but the budget was strained before -- now it is impossible.

The loss of job is a change in circumstances -- though I do not need one, as it has been 24+ months since the last order.

In order to deviate from guidelines based on the circumstances, I must file a petition to modify rather than a motion to adjust (more streamlined).

QUESTIONS:

1) I think I have an attorney on this case (last call was in December of 2004). Must I use my attorney of record (paying her will be impossible)?

2) If I must get her to withdraw, what must I send her?

3) If Bm agrees to the order without objection should I look for flying swine and subzero temperatures in Hades?

State is WA

Renter's Insurance policy on personal property states "We do not insure you against loss of or damage to covered property resulting directly or indirectly from any of the following...

(4) Wear and tear, deterioration, mechanical breakdown, inherent vice, latent or patent defect, rust, mold, wet or dry rot, insects or vermin. "

 I had a water loss at my rented premises where the water pressure in the supply line to my washing machine ruptured at the bib soaking the entire premises in 3" deep water.

 QUESTION:

1. If the cause of the loss is found to be contractor error or a missing regulator (faulty work product?) do the terms LATENT DEFECT make it possible for my insurance company to deny my claim for damages to my personal property? or am I misunderstanding the term "latent defect"?

My SS has been charged with Rape of a Child in the first degree. The victims are my sons. State is WA. SS is 15 now (12.5 at beginning of the acts & 14 at the end.) DS1 was 6.5 (now 8) and DS2 is now 7 (5 at start). No charge for acts to DS2 as he was too young to articulate what happened to him (and too shy).

DS1 was set to testify against SS. I believe SS is guilty and there is some considerable evidence that it occurred, though disclosure was too far after the fact for conclusive physical evidence... unless SS has some STD we do not know about that DS1 & DS2 will have too.

DH is a basket case and has done all he can to protect younger boys and try to continue to guide SS but away from our home.

SS is taking a plea deal. Currently, as condition of his pre-trial release from juvenile detention, SS must not be in DS1 or DS2 presence nor unsupervised in the presence of any person 2 or more years younger than he.  Prosecuting Atty is strong on this being enforced to the letter, as it is what made it to the written orders. Judge said some other stuff which allowed contact, but it was not in the signed conditions.

BM and SS are using the current release condition to exclude DS1 and DS2 from grandparents' home... a goal BM has actively pursued in the past (g'parents have some money). SS is missing school to spend a week with GP's prior to Thanksgiving... so DS1 & DS2 cannot go to where he is already known to be.

Under the terms of the plea deal, SS will get placed on sex offender list and will be made to take SSODA (special sex offender treatment program) and be placed on probation with a short leash pending completion of the program. No completion = detention time.

1. As the parent of a victim, can I request (and would I likely obtain under the circumstances) that the "condition of release" become a permanent  or long term "no-contact order" for SS with DS1 & DS2? Is this an allowable thing in a criminal court?

2.  a.) When a no-contact order is in place and a victim meets a perp in a public place, who is generally supposed to leave the area?
     b.) What about in a private place like a mutual relative's home?

3. Can anything be done to exclude SS from any place DS1 & DS2 is likely to go when they are likely to go there? (For example their home, school, church, grandparents' at holidays, babysitter's, the State of OR as a whole since SS lives in N. WA, etc?) Or is that what a RO/no-contact order is for?

4.   OT -- How much trouble could I get  into if I were to make public (say at Ss's school with a big banner) SS's conviction when it occurs? If there is no gag order? What kind of liability do I open myself up for?

5.  Have you ever seen or heard of (other than on TV) a judge go outside of the terms of a plea agreement in sentencing a minor? More harsh? More lenient?


Thank you for your time Soc. The donation goes where again?

Here is the link to a dissenting opinion on the WA Courts regarding

defacto parents rights vs bio parental rights ( aka Troxel & Smith)

http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=756261DI1

thought you might like to see what's going on in WA state that will have ripples everywhere.

State is WA.

I barely meet the 5 year of training/experience (17 years of hit and miss) requirement for non-attorney GAL applicants. Specific training is in October in a town across the state.


1) If you could assist in "the making of a fair GAL" what would you like to tell me?

2) anything I should avoid?

Unpublished court opinion indicates that in WA in an agreed parenting plan the statutes are applied to the original plan and it is presumed the judge applied the standards.

http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=231224MAJ

"A trial court hearing a modification action, on the other hand,
presumes the best interests of the child require the primary placement
remain intact."

However, in a modification then it is presumed that primary placement is in the child's best interest and the parent trying to change the primary placement AS STATED IN THE PARENTING PLAN has to meet threshold for a change in circumstances.

In the linked opinion, the mother and father divorced and agreed to a plan that left the children with her for a set number of years and then transferred the twin boys to the father for 3 school years. Both were fit.

Mother could not meet threshhold to maintain custody against her previous agreement because the father HAD primary placement for the time period they were discussing as per the court order.

QUESTIONS:
1) For those in WA who are attempting to complete their first parenting plan, what draw back would there be to attempting a settlement with a tranfer of custody at a later date (an Atty not having read this opinion might tell a client to take it because the order could be modified prior to a change over)?

2) DO you see in this opinion help or harm for an NCP who has a final parenting plan order?

3)DO you see in this opinion help or harm for an NCP who has met the threshhold of "change in circumstances"?

I was recently reading how law makers slip stuff into the laws (like a recent mandatory Federal ID card into a budget package) and things get passed that were never intended to be passed except it was hidden in a 600 page outline.

What would be the down side/illegal side/unethical side of lobbying a committee member to hide a federal joint fit parenting mandate in the next budget packet?

We have had an attorney for the past 2 years. There was an original retainer (burned through) and there is currently nothing in the works - heck SS cannot be in our home overnight due to his abuse of his younger siblings - or at least their allegations of it. SS is 14 and has yet to show any remorse.

It is not likely that we will require this lawyer's services again, but just may. We pay her EO month or so $50-60 to tell us when she will not be available. She is $220 an hour now, but a pirhana in the court room.


QUESTIONS:

1) if we do not dismiss her from the case, are we likley to need another retainer? What is the USUAL procedure for this?

2) if we do dismiss her, are we likely to need to come up with another retainer if we need to rehire her at some later date?

State is WA SS is 14. CS is $300 a month and was agreed to by both paretns in 2003. this is a deviation from guideline due to other children in DH's home with considerable medical costs due to Developmental delay in DS1 and DS2.

SS currently under investigtation by the County DA, with charges pending. DA has made it clear that we are not to discuss the matter with SS or BM and that SS is never to be alone with DS1 or DS2 for even one second IF the younger boys WANT to see him.

Current orders: Parents are 50/50  on CS share, medical, dental , vision and Mental health. BM/CP ordered to use the health insirance to minimize costs. Temp Parenting Plan has EOW to NCP, AND EOH, with make up for NCP only (not for CP).

Costs to exercise visitation have tripled, as SS must be 100% supervised with DS1 & DS2 and cannot spend the night in our home. We have managed 3 visitations with SS at DH's parents (40 mi RT) overnight and with us during the day. DH's parents say, "No more, we want our lives back."

Best solution is rent a  motorhome and put in driveway or rent a hotel room nearby ($60/night) = $330 per month average . This is expected to continue until the hearing is complete at least. DA states about 12 weeks until the next step (6 visitations.)

1) Since the allegations require some change in the parenting plan  and the additional cost increase creates a hardship DH should not have to bear alone, would you personally suggest a modification of CS and the Custody order be started now, or wait until after the criminal charges against SS have completed?

Thanks,
4honor

State WA. Last mod of CS was a stipulated order $300/mo & 50% medical. BM to use insurance providers. Order from 2002. BM caved because she feared a major reduction in CS at that time. Income shares model at 50/50.

With the current allegations of SS having abused DS1 and DS2, there is a significant increase in the cost to maintain visitation. (increase >$100 a month and likely to increase as the family gets tired of keeping SS overnight.)

DH will likely have to begin to take visitation in SS's town and rent a motel room for visitation, so that SS is not further harmed by this matter due to lack of interaction with DH... providing he does not get pulled from BM by CPS for failing to get SS the counselling/treatment he needs as an offender/victim.

QUESTION:

1.   Would the change in the CP's household (SS abuse allegations) coupled with the increase in the costs to maintain the relationship meet threshhold for modification? (Parenting plan mod motion will be attempted when criminal case against SS is resolved.)

2.   Given that WA is reasonably easy to get a CS modification pro se, would it be worth beginning one prior to resolution of the pending criminal case  (as modification goes back to date of filing, but a finding might not be allowed until resolution - continuance/dismissal possible)?

3. If we filed prior, would a court commissioner likely dismiss a CS mod case or continue it under the current circumstances?

Background:

State is WA. Court order in place for counseling of SS (not done) signed October 2003 - see below for wording. Documents/journals admitted to court record as part of the modification to get the Temp order include many instances of SS being violent to DS1 especially.

DS1 & DS2 (age 7 & 6 respectively) allege SS sexually abused them. No change in allegations since disclosure and no recanting on any matter. New allegation is that SS made DS1 "promise" not to tell, as SS would hate DS1 if he did. 7 yrs difference in age.

Joint Legal, BM CP/DH NCP.

Temporary Order Reads: (parenting plan was from 1994 & does not adress otherwise)

"The parties shall immediately select a licensed counselor who is experienced in working with children of SS's age who is covered by the parent's insurance. Neither parent shall interfere with the child's therapy and both parents shall cooperate wit the child's therapist including meeting with the counselor as requested. It shall be understood that SS's therapy shall be his "safe place" to talk.

Judge told BM to schedule individual counseling for SS from the bench. (still working on obtaining transcript of hearing). BM has not yet done so to our knowledge. SS says he went to one session of family counseling involving his mother and older brother (not DH's child). No EOB received, so not done with DH's insurance.

DH gave BM the names of three counselors who were covered by insurance and that he would agree to. BM has no insurance. No objection given for any of them by BM or her Atty. Atty has since walked, as BM has payment probelms with attorneys.

BM has failed to date to inform DH of the counselor's name. BM says she took SS to a counselor (not one of the agreed to 3) several times, but Dr. has not been able to reach DH. DH refers her back to the CO and asks, "which of the 3 covered by Ins?" BM does not answer.

QUESTIONS:

1) Does the inherent ambiguity in the order's wording leave too much leaway, therefore making it unenforceable for contempt or other purposes?

2) if the wording is reviewed for the intent of the parties, it appears that the order intends for SS to be ordered into counseling and that each parent do what must be done to make that happen -- as a parent over 100 miles away does that leave DH "liable" for it not happening, even though DH only gets w/e 6 PM Fri to 5 PM Sun?

3) Or does this create a presumption that CP must schedule the therapy, once a counselor is agreed to?

4) Since these allegations have come up, we are incurring costs for DS1 & DS2's counseling. Based on the BM's knowledge that SS required counseling and has not scheduled even one session, does that leave her "liable" to a finding of negligence as well, should SS be found guilty?
  4a). or just SS and thereby BM by the relationship as his parent?

5) it appears BM is spreading word around her town, at her place of business, that I am dishonest and I made up the allegations to get custody of SS from her. Does that open her up to a slander suit? (after all, my job depends on me having a good rapport with law enforcement and other professionals all over the state.)

6) would a cease and desist order be of any use in the case of #5?

7) I can donate a gemstone necklace for your "fee"; What kind of semi-precious stone would the woman in your life like?  ;)

State is WA. Two counties over 100 miles apart involved.
Friend's sons ages 6 & 7 allege older brother has inappropriately touched both of them. Older boy is 14.  friend is NCP of older boy.

 6 yo says 14 yo grabs him and rubs his penis against him while both boys are clothed and that 14 yo is always grabbing his butt. Indicates this has happened "alot".... "like ten times".

 7 yo says 14 yo makes him take off his clothes, 14 yo drops pants and then proceeds to place his penis "in" 7 yo's butt, but that it does not hurt.  7 yo also says 14 yo makes him do the same to 14 yo in return.

7 yo known for telling lies. 7 yo also has recent fire preoccupation and is afraid of the dark. 6 yo has screaming nightmares. 6 yo known for being brutally honest. 14 yo has depression with suicidal ideation and no plan.

Friend has arranged visitation to be moved to a family member's home with no other children. Friend trying to find counselor for all three boys, as she does not know how much is true and how much is exaggeration for the wide eyed reaction it got. IF true must be addressed but if not, what kind of damage will it do to older son -- or so she thinks.

Questions:
1)  Is she legally required to bring either the police or CPS or both into this matter?
2) Friend's ex is not easy to gain cooperation from. Besides counseling, what elso should she bring to ex's attention besides not allowing 14 yo to babysit (at least until cleared or confirmed and re-assessed.)?
3) will not bringing authorities into this place friend at any liability exposure?
4) If allegations are founded, can tort suit be filed against ex for not taking 14 yo to counselor (as required in court order 15 months ago) and this subsequent increase in "messed up" which is now harming the younger boys and costing counseling fees etc?

instilling bigotry in a child so bad that the child refuses to visit NCP due to NCP's new spouse being 1/2 Vietnamese (other half Texan)?

NCP is in NJ. CP is in WA and original order is out of OR but jurisdiction is now in WA most current orders from WA. NCP is current on CS. He had cusotdy of one of the sons while CP had other.  Oldest son is 18 and returned to CP's home.

CP and her husband have taught younger son to be a RAGING BIGGOT. He refuses to see or speak to his father because father married a "GOOK". Nephew hates all none whites, but was not raised that way in NCP's home or family. Step father is a card carying KKK'er.

NCP honestly believes this teaching has created a mental problem which is costing him $$ yearly for the counselling for younger DS. It has cost NCP's relationship with the boy (now age 16) as he refuses to get on the plane to go see Dad, and CP won't force him to go either.

1. Can NCP file a lawsuit for  (I don't know) loss of ________ (I was going to say consort, but that is sexually related isn't it?)

2. Is there any legal recourse for NCP?