Modern Family Matters

Washington Protection Orders: Understanding the Types of Restraining Orders Available and When You Should Consider Filing

March 25, 2022 with Ben Brown Season 1 Episode 50
Modern Family Matters
Washington Protection Orders: Understanding the Types of Restraining Orders Available and When You Should Consider Filing
Show Notes Transcript

Join us as we sit down with family law attorney, Ben Brown, to discuss Washington's protection orders, and how you can utilize these court orders to help prevent contact that is harassing or abusive. In this interview, Steve and Ben discuss the following:

•    How do you know if a protection order is the right call for you?
 •    What protective measures are available for vulnerable adults, victims of domestic violence or victims of sexual assault?
 •    Who can file for protection orders, when are they allowed, and how long can they last?
 •    What are the consequences of violating a protection order?
 •    When should protection orders be temporary vs. permanent?
 •    When are emergency orders before a hearing necessary, and what should you expect? 

If you would like to speak with one of our family law attorneys, please call our office at (360) 605-1000, or visit our website at

Disclaimer: Nothing in this communication is intended to provide legal advice nor does it constitute a client-attorney relationship, therefore you should not interpret the contents as such.

Steve Altishin  0:31  
Hi, everyone. I'm Steve Altishin, Director of Client Partnerships here at Pacific Cascade Family Law. Today, I'm here with attorney Ben Brown, to talk about Washington protection orders, what they are, and how they interact with family law. So Ben, before we start in, can you just tell us a little bit about yourself?

Ben Brown  0:51  
Yeah. I practiced in Louisiana for about six years, that's where I'm from. And then I got licensed in Texas, and I'm recently licensed in Washington State. I moved up here, the Pacific Northwest, because I fell in love with the nature up here, the mountains and trees,

Steve Altishin  1:16  
It is a little bit different than Louisiana.

Ben Brown  1:19  
Little bit! 

Steve Altishin  1:20  
No question. So, before we kind of get into specifics of different kinds of protection orders, maybe we can talk a little bit about just the generality of what they are and some other basic commonalities. I know Washington has a ton of the laws, and everyone runs around just calling them restraining orders, but they're kind of different. And so maybe just start with, just in general, what the heck they are.

Ben Brown  1:52  
Okay. Well, I think protective order is a more accurate term, because they're designed to protect people. And at their core, what they all have in common is that they prevent contact between two people--either in person, online, texts, third parties--they put restrictions on contact if one party is abusing it, or using it for harassment or abuse.

Steve Altishin  2:29  
Well, we're gonna talk about several, and also kind of how they work with a family law case. But I know there's civil orders, there can be criminal orders, there can be some that are just used in a family law case, and maybe some that aren't. So we'll kind of try to go through those. And maybe people can help figure out what they may want to use. So, let's start with the domestic violence order for protection. Obviously, it has the word domestic violence in it. And that seems to constitute that it deals with family members. Is that right? Is this mainly one for members of the family?

Ben Brown  3:16  
Family or members of a person's household. It could also be people who have even just dated or previously dated.

Steve Altishin  3:34  
What do you mean by family? I know some people say, well, family is my brother or my sister, or family is my spouse. Is there a broader relationship for family? What does family or household mean?

Ben Brown  3:49  
It could be, like you said, spouses. It could also be people who have children in common, like I said, people who are dating or have dated, blood relatives, people related by marriage, or people who, you know, just have lived together. 

Steve Altishin  4:06  
Yeah. So it takes a bigger area than just necessarily the immediate family, it sounds like. And what does this order do? I mean, how does it prevent domestic violence? Is there a certain thing that says you can't do this, or if you've done this, someone can get an order against you?

Ben Brown  4:29  
Yes, it directs the person not to engage in any further harm to the the ones seeking the order. And, you know, that may involve them having to stay away from that person, even leave the residence if they're sharing one. It can also order them to seek counseling and just In general, it's designed to prevent them from committing any further harm to the protected person.

Steve Altishin  5:07  
And I guess we're talking harm. Violence, in this case, I don't think means just somebody saying, you know, I hate you because of this, or I'm gonna go tell people you did that.

Ben Brown  5:21  
No, it's usually, like physical violence or threats of physical violence, things like that.

Steve Altishin  5:34  
So what if there's an emergency? I mean, it seems like all domestic violence cases are an emergency, but if someone is threatening to do something, like, come over right away, is there a way you can get that without going through a giant hearing? Or how does that work?

Ben Brown  5:57  
There's a kind of expedited procedure for getting a temporary protection order in an emergency situation. And those are good for up to 14 days. And a hearing has to be set within that 14 days, so that the court can review what the emergency is, and if it's valid.

Steve Altishin  6:22  
Got it. Does the person who's accused get to go to that second hearing?

Ben Brown  6:28  
Yeah, it's a due process issue; they have to receive notice, and they have to have the chance to show up and say, all of that is lies, this person is crazy.

Steve Altishin  6:39  
Yeah. And so if the judge--you know, here's the two of them--can they make this order temporary, can they make it permanent, is there flexibility?

Ben Brown  6:54  
Yeah. Usually, they last for a year if the court finds that it's a valid concern. But in more serious circumstances, it can be permanent. And that's just up to the court based on the circumstances.

Steve Altishin  7:13  
I know we'll talk about later, but there's a protection order that directly relates to taking someone's firearms away. In a Domestic Violence Protection Order, can that be ordered?

Ben Brown  7:27  
Yeah, in most of them, that can be included as a precaution, because if the person's violent or unstable, you don't want them to have a gun.

Steve Altishin  7:41  
If someone just says, Forget it, and just violates a court order, I mean, knowingly, not just somehow accidentally, what could happen?

Ben Brown  7:53  
Well, it's mandatory that they be arrested, for starters. And then if the court finds that they did it on purpose, then they'd be held in contempt of court and criminally charged with a felony.

Steve Altishin  8:08  
Okay. That's a pretty strong order. I know in Oregon, there's one called a FAPA-- Family Abuse Prevention Act, and they sound very similar. They're really there to prevent, like you said, violence with a family member. Let's talk about how there's one actually called a restraining order. How does that differ from the domestic domestic violence order?

Ben Brown  8:40  
It's broader and encompasses more things, and is usually for less severe circumstances. It can include property issues, child support, custody issues, things like that. And it's filed within an existing family law case. So for divorce or custody, it's included in it.

Steve Altishin  9:13  
Got it. So this is kind of the one that says you're restrained from going into that bank account and taking all the money?

Ben Brown  9:19  
Yeah, basically. That's what a real restraining order is--it restrains the person from a particular action, and it's broad enough to include anything the court needs to address.

Steve Altishin  9:32  
Does the restraining order then say, no contact? I mean, maybe it doesn't need to be a big thing, but just don't contact with that person.

Ben Brown  9:46  
Yeah. What happens a lot of times is one party will seek a full blown restraining order and say, you know, they can't prove that it's necessary for all of the provisions that they are asking for. But as a fallback, the court will just say, Nobody talk to the other party. So both parties agree to it. It's mutual. And then that way, it doesn't cause any conflict in the future.

Steve Altishin  10:18  
Got it. And again, someone says, Yeah, okay, Judge, I won't do it. And then they go out, and they do exactly what they're not supposed to do. Is there the same kind of penalties for that as there is for the domestic violence one?

Ben Brown  10:33  
Yeah. It's also technically contempt, of course, but this is only a misdemeanor, because you're not usually talking about serious physical harm or violence.

Steve Altishin  10:45  
Yeah, that makes sense. And I imagine, it's, you know, for both parties, can be an interesting situation, because if someone is especially restrained not to go next near the person or something like that, and then the other person calls them up, or stuff like that, I imagine you've got clients who are like, well, they can't talk to me, but I'm going to call them and chew them out. There's another one, and this one's kind of an interesting one. It's the anti-harassment protection order, and it's, I don't know if it's a sub area that you would call it of the domestic violence one--

Ben Brown  11:28  
Yeah, there's some overlap. 

Steve Altishin  11:29  
How does that one come in?

Ben Brown  11:34  
That's for, you know, if a person doesn't qualify for a domestic violence protection order, and if they're experiencing conduct from someone that's harassing them, and if it alarms them, to the extent that they're experiencing substantial emotional distress, then they can they can seek an anti-harrassment.

Steve Altishin  12:01  
This is kind of maybe the one where someone calls 42 times a day.

Ben Brown  12:05  
Yeah something like that. Often with an ex, that's when it happens a lot. Well, not really an ex, but you know, someone who wishes they were an ex, I guess.

Steve Altishin  12:22  
Yeah, they can't wait to be and that's part of the problem. These orders, anti-harassment orders, are they kind of like the other domestic violence orders in that it's only family members that can get filed against, or is that more broad? What if your neighbor keeps coming over and yelling at you?

Ben Brown  12:44  
Yeah, like I said, there's overlap. So if it were a family member, it would fall under a restraining order. So this, I think, was probably put in place for specifically non family members and other people that may be harassing someone.

Steve Altishin  13:06  
Yeah-- the best friend of your soon to be ex? 

Ben Brown  13:09  

Steve Altishin  13:11  
Got it? I'm gonna ask it on all them, but if someone doesn't do it, and someone just keeps on harassing, or, you know, calling them up, what's the consequence of that?

Ben Brown  13:26  
Again, that's contempt of court. And it can be a misdemeanor charge as well.

Steve Altishin  13:32  
How long do those last? Are they permanent?

Ben Brown  13:36  
Usually, it's one year. But, you know, most cases, the court has discretion to make something permanent. That happens most often if a party has had to seek multiple orders, or if you know, maybe the other party has violated multiple times. If there are some substantial circumstances the court will just make it permanent and say done.

Steve Altishin  14:05  
Yeah. Yeah. Obviously the state has has made a lot of different protection orders for different kind of specific areas-- that makes sense because, you know, rather than just going with one kind of one size fits all order, that probably makes things a lot, not only more difficult for the person to get, but more difficult for the other person do even know what they're restrained of. And there's one that's really specific, it seems to me, and it's the sexual assault protection order. There's one just for sexual assault, isn't there?

Ben Brown  14:45  
Yeah. I think that's probably because they want to have added protection for something like rape.

Steve Altishin  14:57  
Yeah. Now this one, is it, again, just for family members? What if you met someone at work, you know, some crazy person?

Ben Brown  15:13  
No, this one is for non family members.

Steve Altishin  15:16  
Okay. On most of these orders, I imagined that the person has to be at least an adult to file but what if it's a kid? How does a kid go about filing? Or who files for the kid on most of these things?

Ben Brown  15:35  
If they're under 16, they have to file it through a parent or guardian.

Steve Altishin  15:42  
So can the state file a sexual harassment restraining order? What if there's, like you said, there was a rape charge in place or something and the person is reluctant to do anything. Can the state step in on this thing?

Ben Brown  15:56  
Yes, they have the power to do that. If criminal charges have been filed, and, you know, frequently, the victim is afraid to confront the perpetrator. And maybe they don't want any thing to upset them, or make them have to confront them or anything like that. So the state has the power to file it on their behalf.

Steve Altishin  16:25  
That makes total sense. And I imagine you can also, you know, get the person's firearms taken away, especially if they're threatening. This is a pretty bad one-- they're all bad, but this one is especially. I imagine the consequences are pretty severe if someone violates a sexual harassment restraining order.

Ben Brown  16:53  
Yeah, it's a felony.

Steve Altishin  16:56  
And that's significant jail time, I take it.

Ben Brown  17:02  
It is. 

Steve Altishin  17:04  
There's another set of people that are protected, and this is newer, rather than older, I guess, especially when you're my age, and I consider this newer rather than older in terms of a Protection Act. And it's called a vulnerable adult protection order. I think in some states, it's called the elderly protection order. I kind of gave it away a little bit, but who's that meant to protect? And is it just elderly people? Or, what do you mean by vulnerable?

Ben Brown  17:39  
Vulnerable is anyone who maybe can't care for themselves and maybe has developmental disabilities, or receives in-home care. Anyone 60 years old, or 60 years old or older, that can't care for themselves. Those are the types of persons this is meant to protect.

Steve Altishin  18:03  
A lot of these so far have been about physical protection, or, you know, threats of physical violence. But this one kind of expands from that, because I know a lot of older adults, and like you said, vulnerable adults, it's so easy for either a family member or not, to talk them out of money, or can get them to do things. Can those things be protected against? 

Ben Brown  18:35  
Yeah, I think the language of it is specifically geared towards protecting people like that, from anyone trying to steal money from and basically protect their financial accounts. It could require an accounting from the accused, or prohibit any transfer of the protected person's property.

Steve Altishin  19:04  
I believe this would also include adults who are in care homes, and are getting in-home care. So it sounds like the state's looking at the caregivers with an eye.

Ben Brown  19:19  
Yeah, they are, to make sure they don't abuse their power over the protective person.

Steve Altishin  19:28  
It makes sense. Let's say someone has a trust, or someone has a conservatorship--the court, as part of that, can actually make them come in and do an accounting, and make them prove they were doing right. Can they do that with this kind of an order?

Ben Brown  19:48  
Yeah, they can. So the court will be aware of what that person has done with their protected persons funds or property.

Steve Altishin  20:01  
I don't imagine that that the firearm prohibition goes into this one.

Ben Brown  20:07  
No, this is not really anything to do with violence. So it's more geared towards theft or embezzlement.

Steve Altishin  20:16  
But, again, if someone decides to violate it, there are still consequences, aren't there?

Ben Brown  20:23  
Yeah, it's a misdemeanor.

Steve Altishin  20:27  
Circling back, because we talked about this and this one is kind of interesting, because you read it and you go, I don't even know what that means. It's called the extreme risk protection order. What the heck is that?

Ben Brown  20:41  
Yeah, that's for if someone is a danger to himself, or others. This, I imagine, was put in place to prevent people who were potentially in danger of committing suicide or in danger of, you know, going on a rampage, and having a mass shooting or something like that. So it's to protect either the bad person, or them from other people--

Steve Altishin  21:20  
By getting the guns out of their hands? 

Ben Brown  21:22  
Yeah, by removing their firearms.

Steve Altishin  21:26  
Well, I feel that makes that makes complete sense. There's also, you know, we hear the term "stalking", and there is a stalking protection order. What is stalking, and how does it fit into this protection order?

Ben Brown  21:51  
Well, it was originally, like, physically stalking someone. But then, you know, since the internet age has come out, there's cyber stalking, so like, following someone online, emails, things like that, that cause a person to be reasonably fearful that the perpetrator intends to injure them. So that's pretty much the standard.

Steve Altishin  22:22  
I noticed that the term reasonably is put in there. And it's not necessarily on all of them. I mean, this one, it seems right because it can be innocent. I mean, I'm not saying it necessarily is, but somebody who is just fearful, but it's not reasonable, isn't gonna be able to get that order. They've got to show a judge that, you know, I'm not just overreacting.

Ben Brown  22:55  
Yeah. Because I mean, it could be innocent on the defendants part. And the person asking for the order might might be overreacting. So the court has to make sure that it's actually needed.

Steve Altishin  23:11  
I tell you, I get a call every day from this one spot somewhere in the world. I'm concerned, I want to get a stalking order on those people!

Ben Brown  23:21  

Steve Altishin  23:25  
Can you get a firearms protection with the stalking order as well?

Ben Brown  23:29  
Potentialy, yeah.

Steve Altishin  23:31  
Now, we talked a little bit about it when we we're talking about restraining orders, but there's actually just a no contact order. I mean, you can just go out and ask for a no contact order, and a stalking no contact order? Which, you know, I kind of read that and went, Oh, when do those kind of fall into place in the pantheon of domestic relations?

Ben Brown  23:59  
That's if criminal charges are pending. If, you know, someone maybe reported the person for stalking to the police, and they're going to charge them with the crime of cyber stalking or something like that, then after the charges are pending, the police can put that into place to prevent them from contacting the victim.

Steve Altishin  24:26  
Well, that makes sense. I mean, that's kind of an old school type of protection order in criminal cases. The judge says, Okay, I'm going to let you out but you don't go contact this person. 

Ben Brown  24:40  
Yeah, don't do that anymore. That's what most of this is-- it's the court saying 'Dont do that anymore.'

Steve Altishin  24:48  
Yeah, that's a great thing to say. Let's talk about that for a couple seconds. None of this is, 'I found you did this, I'm going to punish you for doing that. You're going to go to jail, you're going to get pay fine, you're in contempt.' It's not those things, is it?

Ben Brown  25:11  
No, it's preventative measures for the future.

Steve Altishin  25:16  
Yep. Which you have to show it's happened in the past. It's like you said, the incident, the No Contact, does that no contact also go both ways? Can the person bringing the order be told not to contact the person that it's against?

Ben Brown  25:34  
I mean, usually it does end up that way. Because, you know,  it's not really feasible to say one person can't contact the other, but it doesn't go the other way. Because there's still contact that exists if the other person is trying to contact them. So usually, it is both ways.

Steve Altishin  25:58  
This happens in criminal cases--does the does the victim get to decide whether it's put in place or not? Or is that up to the prosecutor, the state of Washington?

Ben Brown  26:12  
No that's up to the state, it's their authority to put it in place.

Steve Altishin  26:18  
And if they remove it, to remove it? 

Ben Brown  26:21  

Steve Altishin  26:23  
This is, again, we just flew through our time. It's been really, really, really interesting and informative. But before we go, if someone comes into your office, I come into your office, and I say, one of these things I think has happened. I mean, what would be your first piece of advice? Would you kind of tell them either to get an order,  or prepare to get an order? What would you tell them if they came in and said, Well, this thing happened? What should I do?

Ben Brown  27:05  
First thing I would tell them is, try to stay away from that person. Like from the get go, that doesn't need to be in an order, try to stay away from that person. Don't contact them. If they're around, just leave. And then yeah, if any person is afraid for their safety, or they fear any of this might happen, ask for ask for the order. Don't question it, just ask for it. The judge will decide if it's needed and if they're going to order it. But if you in any way feel threatened, go for it.

Steve Altishin  27:51  
This makes such sense. Alright Ben, thanks so much for being here today. 

Ben Brown  27:58  
No problem. Glad to do it. 

Steve Altishin  28:01  
It was great. Just kind of made some things clear. I mean, there's a lot of them, and it can be confusing. 

Ben Brown  28:11  
Yeah, it can be.

Steve Altishin  28:13  
And everyone else, thank you for joining us as well. If anyone has any further questions on today's topic, obviously you can post it right here, and we can get you can connected with Ben-- I almost said no contact-- connected with Ben, or another of our attorneys. So until next time, stay safe, stay happy, be well. Thanks, Ben. 

Ben Brown  28:35