December 2015 Bar Bulletin
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December 2015 Bar Bulletin

How To Fight the Uphill Battle of Non-Parental Custody

By Araceli Amaya


Non-parental custody cases are disputes over the custody of a child between the biological or legally adoptive parent and any nonparent. They force courts to face issues different from and more complex than those applicable in a traditional custody dispute between two biological parents whose status as "parent" is equal. Rather, these cases require courts to protect the interest of the family -parent and child -in remaining together, and to balance that interest against the needs of the child to be safe and well cared for.

Non-parental custody actions are challenging, but provide amazing relief for a child otherwise without a voice. They are initiated by people who have an uphill battle. They are an alternative to state involvement and placement into foster care.

Non-parental custody cases are decided within two contexts: removal and reunification cases. What distinguishes the two is whether the parent-child custodial relationship is intact when the litigation ensues. If the child is living with his/her parent when the nonparent makes a claim for custody, the court must decide whether to remove the child from his/her home. If the child has already been in the care of someone other than a parent for a period of time when the parent seeks custody, the court must decide whether to reunite the child with his/her parent, at the expense of the existing bond between the child and the third-party caretaker.

Washington law provides relief to nonparent petitioners in the context of a non-parental custody action. The court will not grant non-parental custody of a child over the objection of the child’s parent unless it is proven either that:

the parent is unfit; or

placement with an otherwise fit parent would detrimentally affect the child's growth and development.1

The bar is high for any nonparent petitioner because there is a fundamental Fourteenth Amendment liberty interest of natural parents to care and retain custody of their child.2 This very demanding standard of "detriment to the child's mental or physical health" narrowly tailors interference with parental rights to situations involving either traditional unfitness (including voluntary and intentional relinquishment of parental rights through abandonment or lack of interest) or clear evidence of the "unsuitability" of continued parental custody (flowing from proof of “detriment” in the sense of actual harm to the child). It should be noted that the provision of RCW Ch. 26.10, which allowed for nonparent visitation, has been held unconstitutional.3

Typical third parties who seek custody include grandparents and stepparents. The decision to change the dynamics of a child's life by way of a non-parental custody action requires sincere deliberation. Every case is different and the key is to advise our clients on their rights and risks.

There are some basic things that should be discussed with anyone considering filing a petition for non-parental custody.What Is Their End Goal?

Sometimes the nonparent simply wants to be able to take the child to the doctor because the parents are absent. They do not care to secure custody. Maybe the nonparent wants to be able to have rights over the child and both parents agree it will be for a short period of time. In these situations, the nonparent can be advised about custody agreements. These are contracts that lapse the moment one parent decides it will lapse.

Parenting a child who is not your own is not something most people contemplate. For grandparents, who have raised their own children, this is especially true. If they feel the parent can become a healthy parent soon, they are looking for relief that will provide that parent with a roadmap to regain custody of the child. The parties can come to a written agreement on what this would look like. The issue however is that if it is going to be binding by way of a court order, the matter must be filed as a petition for non-parental custody.

Filing a non-parental custody petition demands that the nonparent be prepared to parent the child until the child is emancipated. The reality is that the parent(s) may never be fully capable of establishing themselves such that they can regain custody. The parent will be able to get visitation, which will be based on what is in the child’s best interest.

What Is at Stake?

A person considering filing a non-parental custody action is inquiring about relief because they have concerns about the welfare of a child. The concern has to go beyond a wish that the child have a more comfortable life. The legal standard demands that the parent is proven unfit or that remaining with a parent who is otherwise fit would harm the child’s development.

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