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).
All court pleadings must be prepared on mandatory forms approved by the courts. RCW 26.10.015. The petition must be filed in the county where the child permanently resides or where the child is currently located. RCW 26.10.030(1). Notice must be given to the child’s parents, guardian and custodian. RCW 26.10.030(2). A motion seeking a custody order will be denied unless the court first finds that “adequate cause” for the motion exists. RCW 26.10.032(2). A temporary custody order can be granted upon motion, if it is supported by the sworn affidavits or declarations that are filed. RCW 26.10.110. Either party can file a motion for temporary child support, a restraining order, or a domestic violence protection order. RCW 26.10.115(1), (2), and (3). The court will normally order the preparation of an independent report from a Guardian ad Litem or from Family Court Services regarding custody and visitation. RCW 26.10.130.
The final orders regarding custody, visitation and child support will be entered after a trial on the merits. RCW 26.10.140. If after testimony of the witnesses the court finds that both parents are unfit, or that placement of the child with a parent would detrimentally affect the child’s growth and development, and the court also finds that it is in the best interest of the child, the court can enter an order awarding custody of the child with the non-parent petitioner. RCW 26.10.030(1) and 26.10.100. Visitation by the biological parents may be restricted under certain circumstances, such as a record of willful abandonment, physical abuse, sexual molestation, emotional abuse, domestic violence, or a conviction for certain sexual offenses. RCW 26.110.160. The court-ordered custodian, unless otherwise ordered by the court, will then be in control of the child’s education, health care and religious training.
The children’s adult sibling was awarded custody of the children where the mother was not available to care for them, and the father had a history of significant physical and emotional abuse. The father had dragged a small child by her hair to her room because she had failed to vacuum properly; his anger and frequent rages made the children fearful of him; and the children were living stable, happy lives in the home of their adult sibling. In re BJB, 146 Wash. App. 1 (2008).
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