Aiken v. Aiken
187 Wash. 2d 491
| Wash. | 2017Background
- Mother Cynthia sought an ex parte domestic violence protection order under chapter 26.50 RCW on behalf of herself and three daughters after 14-year-old R.A. reported repeated abuse (including alleged "pretend" suffocation) and attempted self-harm.
- A commissioner initially issued temporary relief, later modified; David Aiken moved for a full testimonial hearing and to cross-examine R.A.; the commissioner denied live testimony and cross-examination, relying on documentary evidence (declarations, medical and counseling records, GAL report).
- The commissioner subsequently issued a one-year protection order restricting David’s contact with R.A.; the order was subject to modification in the ongoing dissolution proceeding.
- David appealed, arguing denial of his due process right to cross-examine the child; the Court of Appeals affirmed, and the Washington Supreme Court granted review.
- The Supreme Court considered whether chapter 26.50 RCW or the Due Process Clause requires live testimony or cross-examination of minor child witnesses before issuing a protection order, and whether the commissioner abused discretion here.
- The Court affirmed: no statutory right to live testimony/cross-examination in every protection order hearing; due process analyzed under Mathews balancing permits denial where documentary evidence and safeguards suffice and live testimony would likely harm the child.
Issues
| Issue | Plaintiff's Argument (David) | Defendant's Argument (Cynthia) | Held |
|---|---|---|---|
| Whether chapter 26.50 RCW requires a right to cross-examine minor witnesses at a "full hearing" | A ‘full hearing’ includes the right to cross-examine adverse witnesses | Statute does not define "full hearing" to require live testimony or cross-examination; legislative scheme provides other safeguards | No statutory right; chapter 26.50 does not mandate cross-examination or live testimony |
| Whether due process required permitting David to cross-examine his daughter before issuing the protection order | Due process required live testimony/cross-examination because paternal liberty interest in child relationship is fundamental | Due process satisfied by statutory procedures, documentary evidence, GAL report, and risk of harm to child from live testimony | No due process violation; apply Mathews balancing and the denial was not an abuse of discretion |
| Whether commissioner abused discretion in denying cross-examination given the record | Cross-examination needed because of disputed facts and seriousness of liberty interests | Commissioner had substantial corroborating documentary evidence and a GAL report; cross-examining the traumatized child would likely cause harm and yield little probative value | Commissioner acted within discretion—documentary evidence and GAL report provided sufficient support |
| Whether attorney fees to Cynthia were proper on appeal | (David) Challenge award because fees not requested below | (Cynthia) Statutory and appellate rules permit award to prevailing party; she prevailed on appeal | Fees properly awarded under RCW 26.50.060(1)(g) and appellate rules; also awarded on review |
Key Cases Cited
- Gourley v. Gourley, 158 Wn.2d 460 (Wash. 2006) (addressed whether due process requires cross-examination in protection order hearings; plurality opinion and fragmented concurrence/dissent set framework)
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (establishes three-factor balancing test for procedural due process)
- Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (recognizes parental fundamental liberty interest in child-rearing decisions)
- Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973) (affirms that substitutes for live testimony—affidavits, depositions—may sometimes satisfy due process)
- In re Marriage of Rideout, 150 Wn.2d 337 (Wash. 2003) (recognizes preference—but not requirement—for live testimony when credibility is outcome-determinative)