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Recent Change in Non-Parental Custody: Raising the First Hurdle

Posted Wednesday, March 15, 2017 by Pivotal Law Group

HandsI have previously written about the somewhat specialized area of Family Law called Non-Parental Custody (“NPC”) in which a non-parent (frequently grandparents) seek to gain custody of a child from the child’s parents. As noted in that article, it can be an uphill battle for the potential non-parental custodian. Well, it just got harder.

I was involved in a case that, upon reaching the Washington Supreme Court, was called In the Matter of the Custody of L.M.S. This was a case that I was involved in at the trial level with a particularly difficult set of facts. In this case, 9 year-old LMS had lived with her maternal grandparents for the entirety of her life. Her mother came in and out as her life had its ups and downs. The father moved to California when LMS was two, and never came back. At some point, the state started collecting child support from the father, which was provided to the grandparents. Not terribly long after that, the father showed in Washington to claim the child because he became aware of legal problems for the mother. He filed for a modification of the Parenting Plan. The grandparents filed for Non-Parental Custody.

Non-parental custody actions and modification actions require adequate cause hearings where the Court decides if there are sufficient facts for the case to move forward for a trial. These are held early in the litigation process, and usually occur before discovery has been conducted. That was the case here.

At the adequate cause hearing, the Commissioner decided that there was no evidence that the father was “unfit” (one requirement of an NPC). Making that decision, the Commissioner dismissed the NPC action. This meant that LMS had to immediately move to California with a father that she did not know.

The decision was appealed to a Superior Court judge with an emphasis that NPC’s can be granted if there will be an actual harm to the child if they are placed with a parent. The judge disagreed with this standard, and affirmed the Commissioner’s ruling. The case then went to the Court of Appeals who affirmed the case on basically the same grounds.

The case finally went to the Washington Supreme Court where the decision was made along a 5-4 split. The Court’s decision basically undercut the growing line of cases that provided exceptions to the basic standard of “fit” parent. The effect that this will have will be to narrow the number of situations in which adequate cause for an NPC case may be found, which will strengthen the rights of parents, but may weaken the protections for children. This dichotomy was clearly in the mind of the dissent (feel free to read the dissent if you want to know exactly how I feel about this case), but the ruling means that Washington has chosen parents over children.

Photo credit: Five for Five #ds487, used under the Creative Commons license.