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Child abuse and neglect in nonparental custody cases

On Behalf of | May 18, 2015 | Child Custody & Visitation |

In grandparent and other nonparental 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 nonparental 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 nonparental 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 nonparental 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).


This Blog is provided for general educational purposes only. By using or participating in this site you agree and understand that there is no attorney client relationship between you and the attorney author. The law changes frequently, and varies from jurisdiction to jurisdiction. The information provided in this Blog is general in nature and may not apply to the factual circumstances in your situation. The applicable law may be different in the State or States where the relevant facts occurred. For a definitive solution to your situation you should seek legal advice from an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation. (C)Bruce Clement