Monday, March 16, 2009

In a Custody Dispute Between a Parent and an Indian Custodian, the Child Shall Placed According to State Law

A recent case from division one, Custody of CCM, gives me the unique opportunity to blog my own case. I represented the appellants in this case. We won.

CCM pitted a non-Indian father against the Indian grandparents. I had the grandparents. Thus, the facts lay in the intersection between two sometimes contradictory statutes: the U.S. Indian Child Welfare Act and Washington’s third-party custody statute.

The case raised several issues: 1) Notice to the child’s Indian tribe, 2) Cure for defective notice, 3) The standard for determining where to place the child, and 4) Child support. We won on three of the four issues.

In terms of notice, the court held that ICWA requires that the child’s Indian tribe needs formal notice of any custody proceeding regarding the child. Formal notice means certified mail, return receipt requested, to the proper tribal authority. If the notice is defective in any way, the Tribe gets a new trial.

In terms of the placement standard, in a custody dispute between two parents, the state-law standard is best interest of the child. However, in a custody dispute between a parent and a non-parent, the standard for placing with the non-parent is much higher. The child is placed with the parent unless 1) the parent is unfit or 2) moving the child from the non-parent to the parent would cause the child actual detriment to his health and well-being.

I argued that this standard didn’t apply to the grandparents because they were the Indian custodians. Since ICWA treats parents and Indian custodians the same, the standard should be the same – best interest. I still think it is a good argument, but it lost. The court held that, where federal law – ICWA – treats the parties the same, the standard for which party gets the child is the state law standard.

Homestead Exemption Includes Contiguous Lot

A new case from the Court of Appeals, Division III, Marriage of Baker, docket # 27242-7 affirms and expands state law regarding the Homestead Act.

Over 100 years old, the Homestead Act was designed to protect the family home from creditors, regardless of financial misfortune. In its modern form, the act shields the first $125,000 of the home from levy and execution.

Thus, if you have a $400,000 home and someone files a lien, they can only expect to take $275,000 from the sale of the house, even if the lien is for more.

The issue here was whether the homestead included the house and the lot the house was built on, or, in addition, another contiguous lot owned by the same person. The creditor levied on the contiguous lot, but not the house and primary lot.

The trial court held that the homestead included the contiguous lot. The court of appeals affirmed.

Monday, March 2, 2009

Domestic Violence Statute Doesn't Apply to Persons in Dating Relationship Under Sixteen Years Old

A new case from the Court of Apeals, Neilson ex rel. Crump v. Blanchette, docket # 27066-1 (Division III), holds that the domestic violence statute does not cover acts between individuals in a dating relationship under the age of sixteen. The holding is based on the definition of “family or household members.”

“Family or household members” includes “persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship.”

Here, the alleged perpetrator was seventeen years old and the alleged victim was fourteen years old. The trial court overlooked this fact and entered a domestic violence protection order on behalf of the alleged victim. Among other restrictions, the order prevented the alleged perpetrator from attending the high school that he and the alleged victim both attended.

The court of appeals reversed, holding that the trial court lack authority to issue the order because the statute only applied to persons in a current or former dating relationship who were sixteen years old or older.