Monday, December 8, 2008

Relocation Act Requires Court to Weigh Pros and Cons of Relocating

A new decision by the state court of appeals, Bay v. Jensen, 37239-8, division II, holds, basically, that the Relocation Act means what it says. The Relocation Act requires the primary residential parent to notify the non-primary residential parent of her or his intended relocation with the children at least sixty days ahead of time. If the non-primary residential parent objects, then the matter goes to a hearing / trial.

At the hearing, the court is supposed to determine whether the detrimental effects of the proposed relocation outweigh the benefits. To do this, the Court is first required to make findings of fact with reference to the eleven different factors enumerated in the statute. Based on these findings, the court is then supposed to make conclusions of law, i.e. this factor points towards granting the proposed relocation; that factor points towards denying the proposed relocation. The findings and conclusions may be written or oral.

In this case, however, the court did not issue written or oral findings that addressed the statutory factors. In fact, it appears as if the court forewent much of any analysis at all and simply ratified everything the relocating party did. This case doesn’t break any new legal ground, although it may be a poster child for how overworked trial court judges are and how they sometimes fall flat on their faces.

Wednesday, November 19, 2008

State Has Authority Over Individual Fisherman to Impose On-Reservation Sentence for Off-Reservation Illegal Fishing

A recent state Supreme Court case, State v. Cayenne, docket no. 80499-1, held that a state trial court could restrict a Chehalis tribal member’s right to own a gillnet, on or off the reservation, as part of his sentence for illegal fishing.

Cayenne, a member of the Chehalis Tribe, was fishing off the reservation and convicted of felony illegal use of a net. The Chehalis Tribe does not have off-reservation treaty fishing rights because it never signed a treaty.

Part of Cayenne’s sentence was an eight-month prohibition on owning a gillnet. Cayenne argued that the trial court lacked the authority to impose this sentence on the Reservation, because the state does not have authority to regulate on-Reservation fishing, except for reasonable and necessary conservation measures.

However, the court reasoned that the sentence was against Cayenne, not against the entire Tribe, and that the state did have jurisdiction over Cayenne.

Monday, September 29, 2008

A Child Has a Constitutional Right to a Determination of His or Her Parentage

A decision from early September, In Re: Parentage of Q.A.L., docket No. 35664-2 (Div. 2, Sept. 3, 2008), held that a child has a constitutional right to participate in a proceeding regarding his own paternity. To protect this right, the child is entitled to a court-appointed guardian ad litem.

The decision modifies black-letter statutory law. Under the paternity statute, an unacknowledged father has only two years to file a paternity action where someone else has been either acknowledged or adjudicated the father.

In this case, the unacknowledged father filed the paternity action two months after he got the results of a paternity test showing that he was the father but missed the statutory two-year deadline. The court waived the deadline because the child had a constitutional interest in the outcome of the paternity action, which trumped the statutory deadline.

One of these interests was the child’s Native American heritage. The unacknowledged father was Native American. Native American rights, including rights of inheritance and the right to enroll in a federally recognized Indian Tribe go to the child regardless of the legal relationship of the Native American parent to the child.

Thursday, September 11, 2008

New Case Rejects Narrowest View of Who Can Be a De Facto Parent

A new case from division one, Parentage of J.A.B., Docket No. 59165-7, offers some hope for children who are living with their stepparents or other relatives and would like to remain there.

In my practice, I often represent grandparents, step-parents, or other relatives who are caring for young children because the parents are unsuitable. These kinds of clients have two legal hooks to gain legal custody of the children: a petition for custody under the non-parental custody statute or a finding by a court of competent jurisdiction that they are the child’s de facto parents.

The non-parental custody statute is unsatisfactory to most clients for two reasons. First, it is an uphill battle. To get legal custody of the children, the client must prove that the natural / legal parent is either unfit or that placing the children with the natural / legal parent would cause actual detriment to the children’s growth and development. In other words, the parents must be seriously messed up: schizophrenic, meth. users, that kind of thing. In the alternative, the children must be seriously messed up, such that the non-parents are the only party that can reasonably be expected to help them. For example, in one case, the step-mother, in a contest with the father, got the child because the child was deaf, the step-mother was proficient in sign language, and the father was mediocre at best.

Also, even if the client does get custody, the end result is of questionable value. In a case that I am currently appealing, the judge concluded that a non-parental custody decree was tantamount to terminating the parental rights of the parent. However, in this new case that I am blogging, the court concluded that the third-party decree only offers a temporary and uncertain right to custody.

The de facto parent hook is also unsatisfactory to most clients because the principle is undeveloped and it isn’t obvious who qualifies and who doesn’t. L.B., the case that first recognized the de facto parent cause of action, established a 4-part test for determining whether someone is a de facto parent: 1) the natural/legal parent consented to and fostered the development of the parent-like relationship, 2) the petitioner and child lived together in the same household, 3) the petitioner assumed the obligations of parenthood without expectation of financial compensation, 4) the petitioner has been the parental role long enough to have established a bonded, dependent, parent-like relationship.

The issues I have litigated regarding this test are: 1) what constitutes consent? 2) are child support payments financial compensation? Consent is the big one. In the cases I have had or read about, the parent dumps off the children with the grandparents and essentially abandons them. Is abandonment consent? The answer is usually no. Apparently the courts believe that it is o.k. for a parent to remove himself or herself from the child’s life for months or even years, and then come back and gain custody. By the way, I think this is terrible for children.

This case doesn’t really address consent because it was pretty obvious that the mother was unfit (severe mental illness) and that the father consented (he signed the consent to terminate parental rights and to adopt, but then revoked his consent. The child lived with the step-father from 4 mos. Until age 7.) This case does address financial compensation, finding that the child support payments were expended for the benefit of the child, not to compensate the step father.

The other argument that tends to arise in de facto parentage cases is who is even eligible to take the test in the first place. I think that any person is eligible to take the test. If the children are living with you, regardless of how the children got there, you should be able to protect that relationship by a finding of de facto parenthood. The other side tries to limit potential test takers to gays and lesbians who had the child via artificial insemination.

This says that the test is not limited to people who cannot legally marry, e.g. gays and lesbians, but it also seems to suggest that the test is only available to people who have co-habitated, and then split up, are eligible to take the test. Factually, this means that de facto parent status is probably only available to gays and lesbians who have a child together, either by adoption or artificial insemination, and then split up, parent and step-parent who marry and then divorce, or hetero sexual couples who never marry and then split up.

I don’t think this is good for children because it excludes a whole category of people who step up to the plate and care for children while the parents do drugs or whatever. However, I think this is where the law of de facto parentage is heading.

Ultimately what needs to happen is that children need to be given a bill of rights. Children should have a fundamental right to remain in a stable and secure home where they are loved by and bonded to their primary caregivers, regardless of the legal or blood relationship between them.

Friday, August 15, 2008

Step Parents Are Protected by Parental Immunity If They Stand In Loco Parentis to the Step Child

The state Supreme Court recently confirmed that a step-parent standing in loco parentis to a step-child is protected from a suit by the step child to the same extent as a legal parent.

In Zellmer v. Zellmer, docket No. 78852-9 (Wash. Sup. 7/24/08), the child’s biological parents sued the step father for a number of torts sounding in negligence on behalf of themselves and the child’s estate. The torts were based on the fact that the step child, who was three-years old, drowned in the step father’s pool while he was supposed to be supervising her.

According to the step father, the girl wandered outside the house, fell into the pool, and drowned, while he was building a fire in the living room. According to the biological parents, the girl would never have wandered outside on a cold December night in her pajamas, walked to the far corner of the property, and fallen in, without some kind of intentional misconduct by the step father.

The biological parents also asserted that the step father had purchased a $200,000 accidental life insurance policy in the child’s name and made himself the co-beneficiary, that he had assaulted the mother twice during their 88-day marriage, and that the mother did not allow him to supervise the child alone on a regular basis. One of the parent’s witnesses testified that the step father had called the child “a little bitch.”

The step father claimed he was immune from suit by the doctrine of parental immunity, which holds that children cannot sue their parents for negligent supervision unless the failure to supervise is wanton or willful. The courts created this doctrine and have subsequently modified it to protect the parent’s interest in raising their own children based on their own beliefs and methods.

The parents asked the court to reject the doctrine of parental immunity and replace it with the “reasonable parent” standard. Instead, the court remanded for an evidentiary hearing into whether the step father really stood in loco parentis to the child. In loco parentis means “in the place of the parent.” A step-parent standing in loco parentis has the same rights and responsibilities as the legal parent. The fact that the step parent is married to the parent does not automatically confer in loco parentis statis.

In this case, the child’s biological father appears to have been actively engaged in parenting, the weight of the evidence indicated that neither the step father nor the child had bonded, and there was conflicting evidence about whether the step father had made genuine financial and emotional commitments to the child.

My own personal guess is that the step father was not in loco parentis and therefore was not shielded by parental immunity.

Thursday, June 19, 2008

Public Law 280 on the Quinalt Reservation

A recent case from the Court of Appeals, Div. 2, State of Washington v. William Pink, Docket # 36485-9, reaffirms the scope of tribal sovereignty over criminal activity by tribal members on tribal land.


In this particular case, the state of Washington asserted criminal jurisdiction over an enrolled tribal member of the Quinault Reservation for possession of an illegal firearm on a state highway within the exterior boundaries of the Quinalt Reservation. According to the state, the fact that the crime occurred on the state highway gave the state jurisdiction to prosecute it.
The court of appeals disagreed, reasoning that the tribe had subject matter jurisdiction over the crime because it had jurisdiction over the land on which the crime occurred, per the Treaty of Olympia, which created the Reservation in 1859. The fact that the Tribe granted the state an easement for the highway did not vitiate this jurisdiction.

This decision contains a primer on state jurisdiction over Indians and Indian Reservations in Washington. This primer is worth summarizing here.

PL 280

In 1953, the US Congress passed legislation, Public Law 280, authorizing any state to assert concurrent jurisdiction over any Reservation within the territorial jurisdiction of the state, with or without tribal consent. The Washington State Legislature then elected to assert this jurisdiction but only over those Reservations that requested it.

Ten years later, in 1963, however, the Legislature elected to assert jurisidiction on the Reservation, with or without tribal consent, in eight different subject areas: 1. compulsory school attendance, 2. public assistance, 3. domestic relations, 4. mental illness, 5. juvenile delinquency, 6. adoption, 7. dependencies, 8. operation of motor vehicles on public streets.

This rather complicated set of laws was applied to the Quinalt Reservation as follows: in 1957, the Quinalt Tribe granted the State of Washington a right-of-way-easement over the Reservation so the State could build the highway.

In 1958, the Quinalt Tribe requested that the governor assert criminal and civil jurisdiction over the Reservation. A month later, in the same year, the governor obliged.

However, in 1965, the Quinalt Tribe petitioned the US Secretary of the Interior for retrocession of state jurisdiction. The Secretary granted the request.

Therefore, from 1965 through the present, the state of Washington lacks original criminal or civil jurisdiction over a tribal member for any matter arising on the Reservation. However, it does have concurrent jurisdiction over a tribal member for a matter arising on the reservation regarding one of the eight areas mentioned previously.

If this sounds complicated, it is because it is. The discussion above pertains only to tribal members and only to land within the exterior boundaries of the Reservation held in trust by the United States for the benefit of the Tribe or named tribal members.


This decision contains a good summary of how p.l. 280 applies to Indian Reservations in Washington State. It should be useful to anyone who advocates for tribal sovereignty and a cautionary tale for non-Indians who wish to do business with an Indian Tribe. If a non-tribal member wishes to do business in Indian country, that person must carefully consider not only what might go wrong, but also what remedies and what courts may be available for redress of grievances.

Tuesday, April 22, 2008

If Your Spouse Is a Child Abuser, Watch Out

A new case from the Washington State Court of Appeals, Division I, Clayton v. Wilson and Wilson, No. 57891-0-I, holds that a marital community is liable for the sexual assaults that one spouse committed against a child while managing the community’s assets.

Mr. Wilson sexually assaulted a minor child some forty times over a period of a few years after providing the Child with yard work at the Wilson’s rental properties. Mr. Wilson’s modus operandi was as follows: first, he would invite the boy to one of his rental properties to perform yard work. The boy would then perform the yard work. Mr. Wilson would then take the boy inside, molest him, and then pay him for the yard work.

The boy finally disclosed the abuse after he was eighteen. Upon disclosure, the police arrested Mr. Wilson and Mr. Wilson confessed.

Essentially the day after Mr. Wilson was released, Mr. and Mrs. Wilson retained a lawyer and agreed to get divorced. Working over the weekend, the lawyer drafted a separation agreement that transferred approximately $1.6 million, or 90 percent of all the community assets, to Mrs. Wilson. This agreement was then incorporated into the decree of dissolution.

Many months later, Mr. Wilson pled guilty and was sentenced to 130 months in prison. Several months later yet, the boy filed a civil law suit. At the bench trial, the court found that the sexual assaults occurred in the course of managing the community business and that, therefore, both Mr. Wilson and the marital community were liable. Total damages were about $1.4 million.

The first issue here was whether the community could be liable for the secret, intentional misconduct of one of its members.

The second issue was whether the community could be liable even after it was dissolved.


Analogizing to employment law, where the employer is liable for the torts of the employee, the court found that the community, Mr. Wilson’s employer, was liable for actions of it employee, Mr. Wilson, even though Mr. Wilson sexually assaulted the boy in secret and with intent.

Finding the community liable, of course, was only half of the boy’s battle. You can’t squeeze blood from a turnip and you can’t squeeze money from a defunct community. Mrs. Wilson had money, but the community did not. The boy needed to somehow undue the divorce and restore the marital community.

He did so with a theory of fraudulent transfer. The Court held that the separation agreement that transferred most of the money to Mrs. Wilson was invalid for lack of consideration. Assuming that an equitable distribution would have been 50 / 50, Mr. Wilson gave up 40 % of his assets without getting anything in exchange. Therefore, for the purposes of the boy’s claim, the community was never dissolved and it assets were still available to satisfy the judgment.


The moral here is don’t be greedy. It makes lots of sense to divorce your spouse the moment you discover that he has been sexually abusing children for the last several years. However, don’t take advantage of it. If Mrs. Wilson had settled for her equitable share of the community property, say, 50%, the Court undoubtedly would have found that the separation contract was supported by consideration. The decree of dissolution, therefore, would have been valid and her money would have been shielded.

Monday, April 7, 2008


A recent opinion from Division II, Hulscher v. Hulscher, docket # 35157-9, 4/01/2008, holds that a provision for non-modifiable maintenance is valid if embedded in a decree of dissolution. If nothing else, the decision illustrates the perils of pro se representation. (The father was pro se. The mother was represented.)


The father agreed to pay what appears to be excessive maintenance. Maintenance was set at $1,100 per week, minus child support. Maintenance terminated at the death or remarriage of the mother. Otherwise, it was non-modifiable. In addition, the father paid for the older child’s college education at a private university and the younger child’s education at a private high school. He also paid health insurance for himself, the mother, and the children.

To make these payments, the father worked 100 hours per week as a longshoreman. The opinion does not indicate whether the mother, a home-maker whose children were no longer living with her, made any attempts to find employment or to become employable.


To me, the maintenance provision is unfair for at least two reasons. First, it is based on what the father can supposedly pay and bears no relationship to what the mother needs. Indeed, the total amount the father pays for maintenance and child support is constant, $1,100 per week or nearly $4,800 per month.

However, the portion that goes to the mother changes based on the amount that goes to the children. The original child support payment was nearly $2,600 per month. Thus, the mother got $2,200 per month when the children are living with her. After the children age-out and child support is no longer due, the mother gets $4,800. This is not sensible, the mother’s needs should not go up after the children leave, they should go down.

The maintenance provision also appears to be unfair because it does nothing to encourage the mother to join the work force. I mentioned that the maintenance award is supposed to be the product of the mother’s needs and the father’s ability to pay. It is also supposed to be related to the length of time it should take for the mother to gain employment and the length of the marriage. The mother should receive maintenance long enough to give her time to get a job and maybe the education that she forewent during her marriage.

At time the father filed his petition to modify or vacate the decree, the mother was a home maker with one child in college and the other child living with the father. Thus, she was in an ideal position to attend college or job training and find a job. Indeed, the commissioner who originally heard the petition to modify the maintenance provision of the decree phased out the maintenance over time as follows:

1st 4 years: 100%
next 2 yrs: 75%
next 2 yrs: 50%
next years: 0%

The commissioner reasoned as follows; 1) The mother should be able to obtain a college degree or equivalent within four years; 2) As the father got older, it was not reasonable to expect him to continue working 100 hours per week, especially given the physical requirements of his job.

The trial court affirmed, but the appellate court reversed, holding essentially that non-modifiable means non-modifiable and that non-modifiable maintenance provisions are specifically allowed for by statute. Legally, it was the correct ruling. However, based on the facts, the ruling seems harsh.


You can’t fault the court for following the law. However, you can fault the father for not hiring an attorney. I doubt a competent attorney would have agreed to those maintenance provisions. A few thousand dollars in attorney’s fees at the front end of the divorce would probably have saved scores of thousands of dollars post divorce.

Wednesday, January 2, 2008


A new decision from the court of appeals, Div. 1, In Re the Parenting and Support of: A.r.k.k. & N.j.k., illustrates the perils of taking your custody battle to another state. Parents in particularly tumultous child custody battles with the other parent will sometimes move across state boundaries with their children to prevent the other parent from seeing the children.

Depending on one's perspective, this may be a response to domestic violence or another chapter in a campaign of parental alienation. Either way, it probably doesn't work.


In this case, the mother got a one-year-long domestic violence protection order against the father in San Juan County, Washington. She then left Washington for Montana. The father followed her a few months later.

While the parents were living in Montana, the domestic violence protection order in Washington expired and jurisdiction ripened in Montana. Simultaneously, the parents renewed their custody battle in Montana.

Over a year later, the mother returned to Washington and obtained a new domestic violence protection order against the father. The father, who was still in Montana, then petitioned the Montana court for a restraining order and an interim parenting plan. The mother did not return for the hearing. The Montana court then adopted the father's interim plan, ordered the children back to Montana, and found the mother in contempt.

To enforce the Montana order, the father obtained a writ of habeas corpus from the court in Washington. The mother complied with the writ and returned with the children to Montana. However, during Christmas vacation, she took the children back to Washington and took up residence in a battered women's shelter in King County, Washington.

The father then obtained a second writ of habeas corpus, but the writ was never enforced. The mother, meanwhile, filed for an interim parenting plan. The Washington Court then held a hearing to determine which state had jurisdiction.


The issue at the hearing was which state had jurisdiction (in the language of the Uniform Child Custody Jurisdiction and Enforcement Act, which state was the home state) -- Washington, based on the original residence of the children, the expired domestic violence protection order, and the second domestic violence protection order, or Montana, based on the residence of the children when the interim parenting plan was entered.

The Washington court held that jurisdiction lay in Montana.

The original residence of the children was no longer operative because domicile had changed; the expired domestic violence protection order did not confer jurisdiction because it had expired; and the new domestic violence protection order was invalid to start with because the court never had jurisdiction to issue it. Therefore, the home state, Montana, had jurisdiction.

Moving across state borders to prevent your ex-spouse from seeing the children is not a winning strategy. If you are facing domestic violence problems, renewing your existing domestic violence protection order is going to be much cheaper, and probably more effective, then flight.