5.4.11 Criminal & Family Law

Transition - Criminal to Family Law

Criminal

Collateral Consequences
Conviction for Domestic Violence Offense- Lose the ability to carry a firearm
Protection Order- Preponderance of the evidence, lose the ability to carry a firearm
- Disparity of power in relationship, can't have joint decisions making with regards to the kids.
State will press charges on victim's behalf if they choose not to press charges.
More domestic violence reported in low income areas- Immigration
If convicted they become deportable and will not be granted citizenship.

Possession of Marijuana- disqualifies you from any government funding (student loans, scholarships, etc.)

In warranted search where drugs, guns, etc. are found children will be put into foster care.
Dependency Action - Danger or neglect of children
(Civil action where state is a petitioner)
Parents often receive counseling, but these programs are usually the first cut due to budget issues.

State interest in children being raised well. Who decides what that means? and where does authority come from?

Rules of Family Law
Best interest of child
All property is fairly before the court for just and equitable distribution

Marriage
What gives government the right to determine who marries?
Early marriage- contract for property (woman)
Why does the government care?
-Taxes
-Health insurance

Loveless v. Virginia (1967)
State cannot prohibit African Americans from marrying someone of another race.

Commity- state to state respect, marriage in another state stands in this state.

WA No fault divorce state- Marriage must be "irretrievably broken"
Cooling off period- 90 days required after filing initial petition

Two method of dissolving a marriage
Legal Separation- debts incurred are separate, can be converted to dissolution after 6 months. Useful when religion does not allow divorce, and to maintain health insurance. (If kids go with Mom and Dad has the only insurance coverage, then the kids lose coverage too.)
Dissolution (Divorce)-

3 Ways to Get to Court on Family Law Matter
Dissolution (divorce)
Parentage Action - Paternity tests
Third-Party Action - Guardianship (Grandmother/Aunt/Etc. becomes legal guardian) Has become more difficult to have granted.

Prenuptials Agreement
Contract between two parties that shifts the law in this context
Legal in WA so long as they are fair, involve the full disclosure of resources, sufficient time for each individual to consider knowingly, and that everyone has opportunity to have counsel review.
As with all contracts- must be a meeting of the minds
If it seems to violate another law, the court would not uphold.

Annulment-
Void/Voidable- Distinction
Second Marriage (if already married) is VOID
If marriage is never consummated it is VOIDABLE
Nunc Pro Tunc- today it is deemed that at it's inception, this was the case. Order goes into effect on the day that the marriage took place.

Maritricious relationship (common law marriage)- looks so much like marriage that the state gives it validity

Petition for Parentage or Dissolution
Notice pleading - Temporary Orders - Prove service - Discovery (rogs, depos, formal docs-financials and income proof) - Motions - (ADR-Settlement Conference) - Discovery Cutoff - Trial - Discretionary Right to file an Appeal

Temporary Orders- Trial date may be 13month later, what happens in the meantime? Children must remain in state, insurance policies must be continued, bank accounts cannot be emptied, etc. ie. maintain the status quo

Enforcement of TO's
-Motion for Contempt usually only recourse RCW 721
If there is no remedial action that can be taken then there is no contempt.
Where curing the violation is impossible there can be no contempt.
For Contempt must find:
-They were aware the order existed
-Valid court order violated
-Compliance with court order is possible
If found the court has authority to issue compliance orders, sanctions, fines, and even jail time.

Order to Show Cause-
Preliminary showing sufficient for the Judge to issue an Order to Show Cause.
Summons to court to explain themselves and the violation before they may be found in contempt.
-Actual notice and actual service required (substantial not sufficient)

Emotional Component in Family Law Cases

Telling the Kids
Someone moves out
Coping with changes
Polarization of clients before trial
Personal life exposed

Ethical Questions

Decree of Dissolution
Custody Agreement/Child Support
Property Division
Spousal Maintenance - Read the Spousal Maintenance Debate for next class (in the class packet)

Do Over- bulk of family law is modification of orders (child support, parent plans, etc.)
Not allowed in all cases. Can become addictive to some people

Petition for Dissolution
-Marriage
-Location/Date
-Irreparable broken

Petition for Temporary Orders
-Custody
-Child support

Respond with:
-GAL Guardian ad Litem for child and also possibly Arnica
-Review hearing in 60 days with ability to hear issues de novo
-You can ask the court for anything as long as it is fair and equitable, and in best interest of child

-If temporary orders are allowed to stand until trial, it will be difficult to make changes at that time (custody of children, etc.).