February 2015 Bar Bulletin
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February 2015 Bar Bulletin

Revising Third-Party Custody Order Is a Challenge

By Kim Schnuelle


Emily, a 30-year-old tech writer and potential client, comes into your office. She tells you that she had a "typical middle-class upbringing" that resulted in attending the University of Washington, but sometime at the end of her senior year she started using drugs, got pregnant and barely graduated.

After she had the baby, she decided she needed to see the world and signed over "temporary" custody to her aunt via an agreed third-party custody order. She then spent the next four years traveling in India and Southeast Asia, and only had very sporadic telephone calls with her daughter Stella and her aunt during that entire period.

Three years ago she moved back to Seattle and cleaned up her act. She attends AA and has been sober since her return. She has since gotten her master's degree and now has a job with good opportunities for career growth. More importantly, she has been spending significant time with her daughter, sometimes lasting weeks at a time, and has taken several two-week vacations with her to Disneyland and the Oregon coast. She feels ready to care for her daughter full time and asks you to help her. What can you do to assist Emily in meeting her goal?

Initially, it should be determined whether Stella has a legal father. If paternity has been established, either via a paternity affidavit filed with the State or via court order, the legal father would need to be served with any court action.1 This may prove very difficult due to the passage of time and might require investigations as to his whereabouts and possibly service by publication.

If paternity has not been established, then the passage of time would likely be enough to foreclose any judicial concerns regarding the biological father, especially if there were several possible fathers for the period of conception and/or Emily had little to no actual information about the possible father's identity.

Once the paternity issue is determined, the legal analysis is not as straightforward as it might seem at first glance. In Washington, non-parental custody matters are governed by RCW Ch. 26.10. While the court must award custody in furtherance of the child's best interest,2 in order for a third party to obtain residential custody of a child, they must demonstrate to the court that the parent is unfit or that awarding custody to the fit parent would result in actual detriment to the child.3

State interference with a fit parent's fundamental right to autonomy in child-rearing decisions is subject to strict scrutiny and is only justified if the State can show that it has a compelling state interest and such interference is narrowly tailored to meet the compelling state interest involved.4 It is thus impermissible and violative of a parent's constitutionally protected rights to allow a non-parent to take custody of a child from a parent5 based only upon a court finding of the child's best interests.6

Pursuant to this reasoning, in In re Custody of Shields, the Washington Supreme Court found that a heightened review standard earlier delineated in Marriage of Allen7 was "substantial" and satisfied strict scrutiny, and that a non-parent would typically be able to meet such a standard only in "extraordinary circumstances."8

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