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Non-Parental Custody and Visitation: An Uphill Battle, At Times Worth Waging

Posted Thursday, January 28, 2016 by Brian Edwards

Alternative TextGrandparents and other non-parents often play an integral role in the life of a child. But when the parents don’t want the non-parents involved, the non-parents face an uphill battle when it comes to receiving court-ordered visitation.

Up until the year 2000, Washington had a third-party visitation statute (RCW 26.09.240), which allowed any person to intervene at any time in a divorce or parenting plan modification. This law was frequently used by grandparents (and specifically called them out as interested parties) to establish regular visitation with their grandchildren. This practice came to an end with the United States Supreme Court case of Troxel v. Granville, 530 U.S. 57 (2000), which found that Washington’s third-party visitation statute violated the 14th Amendment of the Constitution because it violated a parent’s fundamental right to the care and custody of his or her child.

This decision boosted the prominence of the formerly obscure “non-parental custody action,” because it became the sole option for a third party to remain in the life of a child he or she cared about. The uphill battle comes in the form of the burden that a third party must meet, which has gone through various iterations and definitions throughout the years. At its heart, however, is the requirement that the third party show that both biological parents are unfit to care for the child, or that remaining in the custody of otherwise fit biological parents would cause actual detriment to the child’s growth and development.

It is along those lines that the battle is waged. In the various court cases, unfitness and actual detriment have manifested in a number of ways. In some cases, biological parents have been found unfit due to alcohol or drug abuse. In another case, a deaf child’s father was unable to communicate with the child, so the Court found that there would be actual detriment if the child’s step-parent, who could communicate in sign language, was removed from that child’s life. In yet another case, the Court found that a father was unable to adequately meet the complex medical needs of his medically fragile daughter, so the Court awarded custody to the step-mother. The common thread of these cases is that they are highly fact-specific.

Non-parental custody cases are sometimes a necessity to insure the safety and security of a child, but they are also highly divisive because they challenge the very role of parents in the life of their child. Pivotal Law Group attorney Brian Edwards has extensive experience in this somewhat niche area of family law. Please feel free to contact him with any questions you or a loved one may have with respect to this complex area of the law.

Photo credit: Robert Clemens, used under the Creative Commons license.

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