Washington: Supreme Court Domestic Violence Protection Order Does Not Qualify as a “Court Ordered Parenting Plan” - BY: BevAnna M.

Link: http://www.courts.wa.gov/index.cfm?fa=controller.managefiles&filePath=Opinions&fileName=858608.pdf#search=jose veliz

The Washington Supreme Court reversed and dismissed petitioners request in Veliz v. Velasco in 176 Wn.2d 849; 298 P.3d 75; 2013 Wash. LEXIS 157, on the basis that a Domestic Violence Protection Order does not qualify as a Court Ordered Parenting Plan.

Veliz and Velasco parented N.V. in 2004; they were married in 2006. They separated in April 2008, Velasco obtained an order for protection on May 5, 2008 pursuant to the Domestic Violence Prevention Act (DVPA), chapter 26.50 RCW. In the order, there was a handwritten provision that stated, “[Veliz] will be allowed visitation as follows: Weekends 10 a.m. on Saturdays to 5 p.m. on Sundays; or in accordance with a Court approved parenting plan”. The protection order was signed by Veliz, Velasco, and the Judge. Veliz filed for dissolution of his marriage on May 14, 2009.

Both parties complied with the protection order’s visitation provision over the next three months without incident. The Saturday morning pick up on Saturday, August 16, 2008, happened without incident. However, Veliz did not return N.V. at 5 p.m. that Sunday evening as in the order. Veliz had taken N.V. out of the state of Washington, first to Los Angeles, CA and later to cities in Mexico.

August 22, 2008, prior to any formal parenting plan being filed, the prosecutor charged Veliz with first degree custodial interference under RCW 9A.40.060(2)(a). The information stated:

“[D]uring the time intervening between the August 16^th and August 17^th, 2008; then and there being the parent of and with intent to deny access from Lorena [Velasco], the other parent having the lawful right to time with N.V. pursuant to a court ordered parenting plan, did retain N.V., a child under eighteen years of age, and intended to hold N.V. permanently or for a protracted period.”

Three days later, on August 25, 2008, the court entered a temporary parenting plan in the dissolution proceeding pursuant RCW 26.09.197 which has never been amended. Veliz and N.V. did not return to the United States until December 21, 2008 where Veliz was arrested at the Mexico-United States border.

Prior to trial in the criminal case, Veliz filed a Knapstad motion to dismiss. With the argument that the May 5, 2008 protection order was not a court ordered parenting plan and that there was insufficient evidence to prove first degree custodial interference under RCW 9A.40.060(2). The trial court denied the Knapstad motion. A jury convicted Veliz of first degree custodial interference under above mentioned statute. The Court of Appeals affirmed Veliz’s conviction holding that the May 5, 2008 protection order was a court ordered parenting plan for the purposes of the custodial interference statute. State v. Veliz, 160 Wn. App. 396, 408, 247 P.3d. 833 (2011). Review was granted on the limited basis as to whether or not a domestic violence protection order can constitute a court ordered parenting plan. The Supreme Court reversed the Court of Appeals decision and dismissed the conviction on the criminal case for insufficient evidence.