§48.04 Coordination of Family Law Proceedings with other Proceedings

• Jurisdiction: Washington

§ 48.04 COORDINATION OF FAMILY LAW PROCEEDINGS WITH OTHER PROCEEDINGS

Depending on the results of an investigation of child abuse or neglect by CPS or law enforcement, some or all of the following legal proceedings may be initiated: a dependency proceeding may be filed by DSHS pursuant to Chapter 13.34 RCW; criminal charges may be filed against the alleged offender; CPS may determine that the allegations of child abuse or neglect are founded against an individual (see § 48.03[1], above), giving that person the right to an administrative hearing to challenge the finding; a civil action may be filed against the alleged offender; a nonoffending parent may petition for a protection or restraining order and/or initiate a dissolution action or modification proceeding to change the residential or visitation arrangements of the child; or relatives or other concerned individuals may file a petition for nonparental custody pursuant to Chapter 11.130 RCW. This section will address some issues that may concern the family law attorney in proceedings other than the family law action.

[1] Dependency

Abuse of a child by a parent is grounds for a dependency action. RCW 13.34.030(6)(b). See Chapter 49 (Dependency and ARY/CHINS Proceedings in Juvenile Court) of this deskbook for a complete discussion of dependency proceedings. The primary concern of DSHS is to protect the child, and DSHS will attempt to separate the alleged offender and child if appropriate and necessary to protect the child. See § 48.03[4], above, for the bases for separation. The nonoffending parent's level of cooperation in achieving and maintaining this separation and protecting the child from the perpetrator will determine whether action will be taken by DSHS against the nonoffending parent as well as the alleged offender. If the nonoffending parent protects the child to the satisfaction of DSHS, the child will be allowed to reside with that parent, and DSHS may not file a dependency petition, or the dependency petition may be dismissed. Generally, this means that the nonoffending parent has obtained a no-contact order through a family court proceeding or has taken other steps to demonstrate that the alleged perpetrator has no contact with the child.

If a family law proceeding is filed immediately following the disclosure of abuse (either a dissolution or modification action), and temporary orders are entered sufficiently protecting the child, it is unlikely that a dependency proceeding will be filed. Sometimes DSHS has moved quickly, however, and a dependency petition has been filed and a shelter care order has already been entered before the family law proceeding is filed. In that case, a family law attorney may represent the client at the dependency hearings (an indigent parent has the right to court-appointed counsel) and stay informed of requirements placed on the client by the court (counseling, evaluations, etc.). RCW 13.34.090(2).

If a family law proceeding is filed subsequent to a dependency action, the attorney must inform the court through a Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) affidavit of the pending dependency proceeding. RCW 26.27.281. Under the UCCJEA, the juvenile court has original, exclusive jurisdiction, so the attorney must obtain permission from juvenile court to proceed with the family law matter in superior court. RCW 13.04.030; Perry v. Perry, 31 Wn. App. 604, 644 P.2d 142 (1982). Usually, this request is in the form of a motion for "concurrent jurisdiction." However, the legislature amended RCW 13.04.030 to provide that juvenile court additionally has concurrent original jurisdiction with family court over child custody proceedings in Chapter 26.10 RCW (now repealed), Chapter 26.09 RCW, and Chapter 26.26A or 26.26B RCW, and may establish or modify a parenting plan as part of the dependency action. RCW 13.04.030(3); see also RCW 13.34.155(2).

Prior to these amendments, only third-party custody actions...