Litigation

By Mark K. Baumann, J.D., © 2018

Effective June 7, 2018, Washington has a new law that allows for grandparents and other relatives by blood or marriage (including step-family members) the potential chance to gain visitation rights with a child who is not their own biological child. The non-parent must prove they have a strong relationship with the child and that the child will suffer harm if visitation is not granted. (Please note, as of January 1, 2021, Washington has another new law for nonparental custody. The law for visitation described in this article is still valid. The new custody law, called minor guardianship, is described here.)

The new law is complex, requires the non-parent to prove certain matters, and only provides the non-parent one chance to request visitation (known as the “one and done” clause). The law does not eliminate a parent’s strong rights under the U.S. constitution to parent their child. This means that the non-parent asking for visitation has a high burden of proof to show a they had a strong relationship, and that the child or children will suffer harm. Proving a legally sufficient amount of harm will likely be a challenging issue in most cases.

Some of the provisions of the new law are summarized below. To see the full text of Senate Bill 5598, click here.

Is the law just for grandparents?

No. The law allows several other types of people to request visitation rights, including people related by blood or marriage. These include:

• Any blood or half-blood family members, such as first and second cousins, nephews, nieces, and great and great-great grandparents;
• Step-family members may request visitation rights, including stepfathers, stepmothers, stepbrothers, stepsisters;
• Family members of an adopted child;
• A spouse or family member of any person allowed by the law to request visitation;
• If the child is a Native American tribal member, any person defined by the tribe as an extended family member

What must be proven in order to get visitation rights?

If the parent objects to visitation, the court must presume that the parent’s reasons are valid and in the best interest of the child. The non-parent must overcome this presumption by proving with “clear and convincing evidence” the following;

• That they are allowed to request rights (must be in the list above);
• That they have an ongoing and substantial relationship with the child, which means the relationship with the child has existed for two years (or half of the child’s life if the child is less than two years old), has involved interaction, companionship, mutuality of interest and affection, has been without expectation of financial compensation, and there has been a shared expectation of and desire for an ongoing relationship;
• That the child is likely to suffer harm or a substantial risk of harm if visitation is not allowed;
• That visitation is in the best interest of the child or children. To prove this, the court must consider 12 factors listed in the statute. These include factors such as the quality of the relationships between the child and parent, child and non-parent, and parent and non-parent, the parent-time sharing arrangements, the good vs. bad faith of all parties, and any history of physical, sexual or emotional abuse or neglect by any party involved in the child’s life.

 What kind of “harm” must be proven?

This can be a complicated legal question. Certainly, provable physical and sexual abuse and neglect constitute harm. Emotional, psychological, and attachment harm are common in our culture, but they can be harder to prove, especially in a way that meets the “burden of proof” required by a court of law.

There are some important procedural requirements

A person who wants to request visitation may only do so only one time. If the request is denied by the court, the person may not ask again.

The request must be make in the county where the child(ren) primarily live. Notice of the legal action must be given properly to the biological parents and anyone else having legal custody or court ordered visitation time.

The standard of proof is high. That is, the person requesting visitation must show by clear and convincing evidence that they have met all of the requirements of the law. This standard is not as high as “beyond a reasonable doubt”, but is higher than what would be required in a custody dispute in a regular divorce case (by a preponderance of the evidence).

If visitation is granted, it does not mean the non-parent gains the rights and duties of a parent.

Attorney fees may be awarded. Petitioners, the person asking to establish visitation rights, must pay for the parent’s attorney fees up front, unless it is unjust to do so based on the financial situation of all the parties involved.

The petitioner shall be required to pay all transportation costs involved with having visitation.

Necessary technical steps to take

The person asking for visitation must file a petition with affidavits to meet the legal requirements. The court must review the petition and affidavits for sufficiency. At this initial review, the court may not grant visitation rights. If they are sufficient, a hearing is then held.

Under the current version of the statute, it appears that a trial is not necessary after the initial hearing to allow or deny visitation.

A visitation order may be changed, but the person asking for the change must show new facts and a substantial change in circumstances, and the requested change is necessary for the best interest of the children. Requests to change a visitation order must be made to the same court that issued the visitation order.

Highly advisable steps to take

Because the non-parent only gets one chance to ask for visitation rights, and because the legal standard is very high, it is important to seek legal advice before filing a petition. Preparation for a non-parental case will be very important in all cases. If you don’t seek legal advice and lose the hearing for visitation, it may be possible to ask the court to reconsider, but a motion to reconsider, always difficult to win, must be drafted, filed, and served within 10 days of the court’s ruling.

If the court finds the petition was brought in bad faith, the non-parent (petitioner) will be required to pay attorney fees to the parent.

Limits on parental rights

A parent’s rights to visitation (or custody) of a child may be limited and restricted, but only if the court finds substantial issues with their parenting or with the parenting of their live-in partner, such as: extended abandonment; physical, sexual, or a pattern of emotional abuse of a child; a history of domestic violence; assault or sexual assault which causes grievous bodily harm or the fear of such harm; conviction of certain sex offenses.

Of note, the current version of the statute does not include any specific limitations based on a parent’s drug use. Drug use may be relevant if it leads to neglect or abuse.

Impact on existing non-parental right laws

How this new statute will impact existing laws that allow for non-parental rights is unclear and may not be known for several years. It appears that this law does not eliminate any other major legal methods a non-parent may request custody or visitation rights. However, the new law does repeal RCW 26.09.240, which is a rarely used statute that allows non-parents to intervene in divorce/custody cases.

Is Washington the correct state for jurisdiction?

The Uniform Child Custody Jurisdiction and Enforcement Act applies, so the child(ren) must have resided in Washington for the last six months. There are some exceptions to this requirement in unusual and domestic violence situations.

Will this law pass constitutional muster?

Grandparent’s rights laws (non-parental visitation and custody) have been difficult to implement because of the high risk the law will interfere with a parent’s rights under the U.S. Constitution. Similar to gun rights under the second amendment, The U.S. Supreme Court has previously stricken down many such laws. This new law appears to be designed to address the Supreme Court’s concerns, but whether or not those concerns are adequately addressed will likely be fought in court in the years to come. It may be the new law will eventually be completely stricken down, or be modified by court rulings or modifications to the statute. It may also be that some judges will narrowly interpret the law, that is, make it harder for non-parents to prove their case, in order to avoid constitutional challenges on appeal.

Procedural history notes

The law was passed as Senate Bill 5598, and will be codified in the Revised Code of Washington under a new chapter under title 26 (number yet to be determined). The law is currently known as Session Law Chapter 183, 2018 Laws. The companion House Bill was HB2117. To see the full text of SB 5598, click here.

This article was written by Mark Baumann, and does not reflect the opinion of the Clallam County Bar Association. This article does not provide legal advice. Anyone interested in pursuing non-parent visitation rights is advised to contact an attorney. Family law attorneys who practice in Clallam County can be found here.

Mark Baumann has practiced law in Clallam County since 1988. His practice focuses on family law, domestic violence, and applying childhood development science and psychology to parenting matters and conflict management.