In Re Marriage of Stewart
137 P.3d 25 (2006)
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Rule of Law:
A temporary domestic violence protection order that restricts a parent's contact with their children, based on the psychological harm caused by the children witnessing domestic violence, is not an impermissible modification of a permanent parenting plan.
Facts:
- Nichole Stewart and Wilson Stewart dissolved their marriage in 2001, with a parenting plan establishing Nichole as the primary residential parent for their two children.
- In February 2002, Wilson assaulted Nichole in her car by smearing gum in her hair and berating her in front of their children.
- Days after a restraining order was issued for the gum incident, Wilson violated it by following Nichole's car late at night.
- In March 2004, during a visitation exchange and in the presence of one child, Wilson allegedly shoved his hand down Nichole's pants and then forced his finger into her mouth.
- In September 2004, Wilson allegedly barged into Nichole's home, accused her of infidelity, and ripped the comforter off her bed while the children were present.
- On Christmas Day 2004, during a curbside child exchange, Wilson spat on Nichole in front of their children.
- The children witnessed multiple incidents of violence against their mother, causing them to be terrified; one child attempted to call 911 during an assault, and the other made fearful phone calls to Nichole from Wilson's home.
Procedural Posture:
- Nichole Stewart petitioned the superior court for a domestic violence protection order against Wilson Stewart.
- A superior court commissioner granted a temporary order and suspended the existing parenting plan pending a full hearing.
- Following the hearing, the commissioner entered a one-year protection order prohibiting Wilson Stewart from having any contact with Nichole Stewart or their children.
- Wilson Stewart filed a motion for revision of the commissioner's ruling with a superior court judge.
- The superior court judge denied the motion for revision, upholding the protection order.
- Wilson Stewart (Appellant) appealed the superior court's decision to the Court of Appeals of Washington, Division 1. Nichole Stewart is the Respondent.
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Issue:
Does a temporary domestic violence protection order that prohibits all contact between a parent and his children, based on the psychological harm the children suffered from witnessing the parent's violence against their mother, constitute an impermissible modification of a permanent parenting plan?
Opinions:
Majority - Ellington, J.
No. A temporary domestic violence protection order that prohibits contact between a parent and his children is authorized by statute and is not an improper modification of a permanent parenting plan. The court reasoned that the statutory definition of domestic violence includes inflicting the 'fear of imminent physical harm,' which encompasses the psychological harm children experience when witnessing violence against a parent. The domestic violence protection statute, RCW 26.50, is designed to provide a swift, temporary response to prevent further abuse and explicitly allows courts to restrict parent-child contact for up to one year. This temporary suspension of contact is not a de facto modification of the parenting plan but rather a necessary, short-term measure pending further proceedings in family court, which either party is free to initiate. The court found no conflict between the protection order statute and the Parenting Act, as the Parenting Act itself requires residential time to be limited when there is a history of domestic violence.
Analysis:
This decision clarifies the interaction between emergency domestic violence protection orders (DVPOs) and permanent parenting plans. It establishes that courts can prioritize the immediate safety and psychological well-being of children by issuing temporary DVPOs that override existing visitation schedules. The ruling affirms that the psychological trauma of witnessing domestic violence is a legally sufficient ground for such an order, treating the 'infliction of fear' as a form of domestic violence itself. This precedent empowers courts to act decisively to protect children in volatile situations without being constrained by the slower, more formal procedures required for a permanent modification of a parenting plan.
