In grandparent and other non-parental child custody cases the prevailing concern for the court is always the question “what is in the best interest of the children?” Obviously, clear instances of child abuse and neglect will normally have a profound effect on custody issues in these cases. A parent who has abused or neglected their child will have a difficult time convincing any judge or commissioner that they should keep custody of their child.
Basis for award of custody in non-parental custody cases
The court may award custody of a child to a nonparent when both parents are either unfit, or placement with either parent would result in actual detriment to the child. In re Custody of Shields, 157 Wn.2d 126, 136 P.3rd 117 (2006). See also In re Custody of SHB, 118 Wn. App. 71, 74 P.3rd 674 (2003); affirmed 153 Wn.2d 646, 105 P.3rd 991.
Custody in non-parental custody cases where one parent is fit
A nonparent who has physical custody of a child can be awarded custody against a fit biological parent if placement with the parent would result in actual detriment to the child’s growth and development. In re Custody of Shields, ibid, at 143. Nonparental custody has been granted against a fit parent who had a significant history of physical and emotional abuse, the children were fearful of the parent, and were currently living in a stable, happy, nurturing environment. In re Custody of BJB, 146 Wn. App. 1, 189 P.3rd 800 (2008); review denied, 165 Wn.2d 1037, 205 P.3rd 191.
Best interests of the child
When a child does not reside with either biological parent, the nonparent petitioners must prove that awarding them custody is in the best interests of the child. In re Custody of SBH, 118 Wn. App. 71, 79, 74 P.3rd 674 (2003); affirmed 153 Wn.2d 646, 105 P.3rd 991. Unlike a dependency or termination proceeding, a nonparental custody order does not terminate parental rights. In re Custody of SBH, supra, at 83.
Limitation of visitation rights in non-parental custody cases
The visitation rights of biological parents may be limited if the court finds that they engaged in any of the following conduct: Visitation with the child shall be limited if it is found that the parent seeking visitation has engaged in any of the following conduct: (i) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions; (ii) physical, sexual, or a pattern of emotional abuse of a child; (iii) a history of acts of domestic violence as defined in RCW 26.50.010(1) or an assault or sexual assault which causes grievous bodily harm or the fear of such harm; or (iv) the parent has been convicted as an adult of a sex offense. . . . 26.10.160(2)(a).
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