This Legal Guide is a follow-up to the prior Guide, “Petitions for Custody by Grandparents and Non-Parents.” In the current Guide, the following additional topics are covered: Independent custody investigations; non-parental custody when the parents are unfit; non-parental custody when the parents are not unfit; the best interests of the child; termination of parental rights; restrictions on visitation by the biological parents; domestic violence; and the definition of “parenting functions.”
Independent custody investigations
In a non-parental custody case, the court can order an independent investigation and recommendation from a private or public source. In King County, for example, custody investigations are often conducted by Family Court Services (FCS). This county agency consists of professionals, mostly social workers, who conduct custody investigations and make custody recommendations to the judges. Their reports are authorized by RCW 26.10.130. The report must be mailed to counsel and any pro se party at least ten days prior to the court hearing. RCW 26.10.130(3). Any party may call the FCS investigator as a witness that the FCS investigator “and any person whom the investigator has consulted” for examination or cross-examination at trial. RCW 26.10.130(3). If the notice requirements of RCW 26.10.130(3) have been met, “the investigator’s report may be received in evidence at the hearing.”
When the parents are unfit
The court may award custody of a child to a nonparent when both parents are either unfit, or are unable or unwilling to care for 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. Unfitness may be proved in a number of situations, including: drug addiction; alcoholism; abandonment; neglect; abuse; sexual molestation; failure to protect a child from abuse or neglect; failure to provide adequate food, shelter, clothing, education or medical care; emotional illness; or criminal activity.
When the parents are fit
The court may award custody of a child to a nonparent when both parents are fit, but placement with a 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. 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. For example, non-parental custody has been granted against a father who was not unfit, but who did have a significant history of physical and emotional abuse, where the children were fearful of him, and were currently living with the non-parents 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.
Constitutional rights of biological parents
Non-parental custody cases are necessarily different from divorce or paternity cases. In the latter, the court is weighing who the better custodian would be as between two biological parents, who have constitutional rights to custody. In non-parental custody cases, the non-parents do not have a constitutional right to custody. 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. For example, non-parental custody has been granted against a father who was not unfit, but who did have a significant history of physical and emotional abuse, where the children were fearful of him, and were currently living with the non-parents 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. When a child does not reside
Non-parental custody does not terminate the rights of the biological parents
Unlike a dependency or termination proceeding, a non-parental custody order does not terminate parental rights. In re Custody of SBH, supra, at 83. After a decree is entered, and custody is granted to a non-parent, it still remains the hope and expectation of the court that one or both of the biological parents will eventually be able to assume or resume custody of the children. For that reason, they can petition the court for custody at a later date when they are able to provide adequate parental care for the children. In such cases, the court will normally allow the parents to resume care of the children, unless the non-parental custodians can show actual detriment to the health and welfare of the children.
Restricting visitations by the parents
In non-parental custody cases, the grandparents or other custodians often want to restrict visitation by the natural parents, especially if they are often prone to rages, violent outbursts, or high on drugs or alcohol. “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).
Domestic violence of the parents
Certain sections of the divorce statute would seem to give guidance to judges in non-parental custody cases. For example, RCW 26.09.003 states that, “the legislature finds that the identification of domestic violence as defined in RCW 26.50.010 and the treatment needs of the parties to dissolution are necessary to improve outcomes for children.” Certainly, the same can be said for dysfunctional parents in non-parental custody proceedings.
What are “parenting functions”?
In RCW 26.09.004(2) (another section dealing with custody in divorces) defines parenting functions to include: “those aspects of the parent-child relationship in which the parent makes decisions and performs functions necessary for the care and growth of the child. Parenting functions include: maintaining a loving, stable, consistent, and nurturing relationship with the child; attending to the daily needs of the child, such as feeding, clothing, physical care and grooming, supervision, health care, and day care, and engaging in other activities which are appropriate to the developmental level of the child and that are within the social and economic circumstances of the particular family; attending to adequate education for the child, including remedial or other education essential to the best interests of the child; assisting the child in developing and maintaining appropriate interpersonal relationships; [and] exercising appropriate judgment regarding the child’s welfare…”
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