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April 2015 Archives

Non-Parental Custody in Washington

Overview

Someone who is not the parent of a child can file a petition seeking non-parental custody. RCW 26.10.030. In theory, the petition can be filed by anyone, but normally it is filed by a family member, like a grandparent, aunt, uncle, or step-parent. The petition must allege that the child is not in the custody of a parent or that neither parent is a suitable custodian. RCW 26.10.030(1). Parents have a constitutional right to custody of their children. Mecum v. Pomiak, 119 Wash. App. 415 (2003). However, custody can be awarded by the court to a non-parent if both parents are unfit, or if the child's growth and development would be detrimentally affected by placement with an otherwise fit parent. In re Shields, 120 Wash. App. 108 (2004). The overarching purpose of the non-parental custody statute is to serve the best interests of the child. RCW 26.10.100. The burden of proving this by substantial evidence is on the petitioning non-parent. In re EATW, 168 Wn. 2d 335 (2010).

Grandparent Custody in Washington

Lies in Divorce Cases -- The General Rule

Most states have adopted a version of the Federal Civil Rules. Civil Rule 11 provides: "(a) Every pleading...of a party...shall be dated and signed.... The signature of a party...constitutes a certificate by the party...that the party ... has read the pleading, and that to the best of the party's...knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is well grounded in fact; (2) is warranted by existing law...; (3) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (4) the denials of factual contentions are warranted on the evidence or ...are reasonably based on a lack of information or belief.... If a pleading...is signed in violation of this rule, the court...may impose upon the person who signed it...an appropriate sanction, which may include an order to pay to the other party...the amount of the reasonable expenses incurred...including a reasonable attorney fee."

Attorney Fees in Divorce

Lies in Divorce Cases -- The General Rule

Most states have adopted a version of the Federal Civil Rules. Civil Rule 11 provides: "(a) Every pleading...of a party...shall be dated and signed.... The signature of a party...constitutes a certificate by the party...that the party ... has read the pleading, and that to the best of the party's...knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is well grounded in fact; (2) is warranted by existing law...; (3) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (4) the denials of factual contentions are warranted on the evidence or ...are reasonably based on a lack of information or belief.... If a pleading...is signed in violation of this rule, the court...may impose upon the person who signed it...an appropriate sanction, which may include an order to pay to the other party...the amount of the reasonable expenses incurred...including a reasonable attorney fee."