March 2016 Bar Bulletin
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Non-Parental Custody and Burden of Proof

By Araceli Amaya


This article is a follow-up to the author’s article, “How to Fight the Uphill Battle of Non-Parental Custody” in the December issue of the Bar Bulletin, in light of the Washington Court of Appeals’ December decision In re Custody of ALD.

As I’ve written here before, non-parental custody actions are always challenging. At the outset they require that family members come to the conclusion that a lawsuit is necessary to protect a child. They require petitioners, often the parents of one of the respondents, to lay out for the world and the courts the faults of their kin.

Without doubt there is good reason to set a high bar for these cases because, the fact is, non-parental custody challenges a person’s constitutional right to parent their child without state interference.

In a December 2015 opinion, Judge George B. Fearing of Division III of the Court of Appeals, in the lead paragraph of the ruling, described a decision surrounding the custody of a child as follows:

A most difficult and humbling decision for judges is determining who should be granted, among competing parties, custody of a young child. The decision shapes the child’s entire lifetime. Rendering such a decision is similar to playing God. King Solomon suggested severing a baby in half in order to discern which of two women deserved custody of the child. Since we lack the wisdom of Solomon, we resort to another decision making process.1

Judge Fearing brought us full circle in what non-parental custody actions represent and reminds us that the law is not black and white.

About the Case

In re Custody of ALD was complicated to say the least. The Court of Appeals was faced with a mother’s plea to overturn the trial court’s decision to grant custody of her daughter (then 5 years old) to the maternal grandmother and maternal step-grandfather. The Court of Appeals reversed.

The parties were the mother, Kelly Lambert; her mother, Kimberly Moehlmann; and her stepfather, Rod Moehlmann. Lambert’s daughter is identified by the fictitious name “Betty Sue.” The biological father was not involved in the child’s life and did not make an appearance in this case, though named as a party. Another interested party was Jerri Ann Cozza, who became Betty Sue’s guardian just before the non-parental custody action was instituted by the Moehlmanns.

In granting custody of Betty Sue to the Moehlmanns, the trial court found the following facts critical:

• Lambert suffered from mental health problems, namely depression. This affected her ability to parent in that she lacked motivation and slept a lot when affected by her depression.

• Lambert moved frequently during the child’s first three years of life. The court found this to be evidence of instability. Based on evidence presented to the court, Lambert moved from Utah to Olympia, from Olympia to Bremerton, from Bremerton to Utah, from Utah to Bremerton, from Bremerton to Spokane, from Spokane to Utah, from Utah to the Moehlmanns’ residence in Spokane, from there to Cozza’s home in Spokane, and from Cozza’s home to Bremerton.

• Lambert showed a willful and consistent failure to protect the child’s welfare and safety. Lambert spontaneously entered a temporary order granting non-parental custody to Cozza. At trial, it was presented that Cozza was a five-time felon and that her boyfriend had been convicted of harassment.

• Lambert maintained an intimate relationship with one Joseph Favazza, who had been convicted of first-degree child molestation. Lambert maintained that Favazza was not guilty of the crime. During the course of their relationship, there were allegations that Betty Sue may have been abused. Although no findings were made as to the abuse allegations, the court found that it still could consider the facts that led to the allegations being made. The court found that Lambert’s decision to continue her relationship with Favazza proved she was not focusing on the child’s safety and welfare.

The Decision

As noted, the appellate court overturned the trial court’s decision, in a 2–1 ruling. Critical to the decision was the Court’s findings that the trial court “utilized an erroneous burden of proof, or at least … failed to expressly adopt the correct burden of proof…. [B]ased on the sanctioned burden of proof, the evidence is insufficient to overcome Kelly Lambert’s constitutional rights to parent Betty Sue.”2

The Court recited the statutory basis for a non-parental custody petition. Under RCW § 26.10.030(1), a third party may file a non-parental custody petition “if the child is not in the physical custody of one of its parents or if the petitioner alleges that neither parent is a suitable custodian.” Although RCW § 26.10.100 provides the standard to be the best interest of the child, case law has since established that the “best interest of child” is insufficient to serve as a compelling state interest overruling a parent’s fundamental rights. Only under “extraordinary circumstances” does there exist a compelling state interest that justifies interference with parental rights.3

In addition, the petitioning party must prove his or her case by clear and convincing evidence. Employment of the correct burden of proof can be critical to the outcome of a non-parental custody petition.4

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