Washington Family Law

  1. Overview

    The following sections are included because it may often be the case that a victim of an online privacy invasion has recently divorced the perpetrator spouse, or is considering a divorce or possibly a separation.  Although evidence of misconduct is not appropriate in a divorce proceeding, the publication of sex photos/videos may well be considered in child custody proceedings, and considerations of domestic violence are appropriate when determining spousal support.

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  2. Divorce

    1. Introduction

      Divorce is formally called “dissolution of marriage.”1 Like California, Washington has a “no-fault” divorce policy, which renders evidence of spousal misconduct inadmissible or improper. Thus, as in California, the nonconsensual publication of intimate photos taken during the marriage would be inadmissible for the purpose of proving fault.

    2. Text of the Statute(s)

      • RCW 26.09.300 – Restraining orders – Notice – Refusal to comply – Arrest – Penalty – Defense – Peace officers, immunity

      • RCW 26.09.050 – Decrees – Restraining orders – Enforcement – Notice of modification of restraining order

    3. Cases

      1. In the Matter of the Marriage of S[redacted] and H[redacted], 152 Wn.2d 74, 93 P.3d 161 (2004) (en banc)

        • Procedural Posture: On appeal from affirmance of decision finding that defendant’s anti-harassment order was not an unconstitutional prior restraint on speech.

        • Law: RCW Chapter 10.14

        • Relevant Facts: Defendant was ex-wife of the victim. She had allegedly brought several false and unsubstantiated claims against the victim arising from their custody disputes, e.g. alleging that victim had harassed her, etc. The defendant was granted a protective order under RCW Chapter 10.14, and the order restrained defendant from “knowingly and willfully making invalid and unsubstantiated allegations or complaints to third parties which are designed for the purpose of annoying, harassing, vexing or otherwise harming [victim] and for no lawful purpose.”2 Defendant appealed the anti-harassment order, alleging that it was an unconstitutional prior restraint on speech, and lower court held that it was not because the speech at issue was not “unprotected speech.”3 Court certified the issue for review to determine whether this order was an unconstitutional prior restraint.

        • Outcome: The court struck the protective order, finding that the order was an improper prior restraint on speech because it lacked the constitutionally-required specificity for a prior restraint on speech.

        • Special notes: In this case, the Court was concerned that by forbidding the defendant to knowingly and willfully make invalid allegations to third parties—essentially, forbidding “harassment via libel”—the order lacked the necessary specificity for validity.

    4. Practice Pointers

      Washington law requires parties in divorce or child custody proceedings to use standard forms in their disputes.4 These forms are available on the Washington Courts website.5 A party’s failure to use the appropriate forms may be a reason for the case’s dismissal.6

    1. RCW 26.09.020. 

    2. In re Matter of the Marriage of Shawn Suggs, 152 Wn.2d at 83-84. 

    3. Id. at 84. 

    4. RCW 26.18.220. 

    5. See Washington Courts, Washington State Court Forms—Dissolution of Marriage, available at http://www.courts.wa.gov/forms/?fa=forms.contribute&formid=13 (last visited Feb. 1, 2012) (providing links to the various types of mandatory court forms required to end a marriage. 

    6. RCW 26.18.220(3). 

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  3. Child Custody

    1. Introduction

      If the victim of the nonconsensual online publication of intimate photos is involved in a child custody dispute, he or she may use evidence of this type of misconduct to establish abuse or harassment by his or her former spouse or lover.  When determining child custody, the court’s primary consideration is to decide what is in the “best interests of the child.”1

    2. Text of the Statute(s)

      • RCW 26.10.115 – Temporary restraining order in context of child custody dispute

      • RCW 26.26.138 – Penalty for violating restraining order under the Uniform Parentage Act

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      Washington forms regarding child custody are also available on the Washington Courts website.2

    1. Although former RCW 26.09.109 summarized the criteria to determine the “best interests of the child,” the statute has since been repealed and replaced by RCW 26.09.187, “Criteria for establishing permanent parenting plan.”  The criteria considered include: the relative strength of the child’s relationship with each individual parent; the parties’ agreements; both parents’ past and potential for future performance as parents; the child’s emotional needs; the child’s developmental level; the child’s relationship with siblings and others; the parents’ wishes; the child’s wishes where the child is old enough to express a preference; and each individual parent’s employment schedule.  Id. at 26.09.187(3)(a). 

    2. Washington Courts, Court Forms: Parenting Plan/Residential Schedule Modifications, available at http://www.courts.wa.gov/forms/?fa=forms.contribute&formid=32 (last visited Feb. 1. 2012). 

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