Divorce Lawyers for Men

GRANDPARENTS’ VISITATION RIGHTS IN WASHINGTON STATE

The Washington State Legislature has passed a second attempt to legislatively grant Grandparents the right to seek Court ordered visitation with their Grandchildren, SB 5598, now codified as RCW 26.11.010 – 060, Nonparental Child Visitation – Relatives.  This has created a clearer picture for grandparents’ visitation rights in Washington.

 

The Legislature’s first attempt to clarify grandparents’ visitation rights was struck down years ago by the United States Supreme Court in Troxel v. Granville. The Supreme Court found the Washington State law, RCW 26.09.240, to be too broad. They ruled that the parent’s fundamental right to control the care and custody of their children was protected by the 14th Amendment to the Constitution of the United States. By granting “any person” the right to seek Court ordered visitation with “any child” the original Washington State statute violated the parents’ Right of Due Process. The Legislature repealed RCW 26.09.240 at the same time they passed SB 5598 this year.

 

The entirely new RCW 26.11.010-060 is much more specific and detailed as to who is allowed to petition for visitation with a child, and the burden of proof required to be successful with the Court. By defining and narrowing the persons allowed to petition for visitation, and imposing strict requirements, the Legislature is trying to satisfy the US Supreme Court’s criticism and fix the overly broad RCW26.09.240.

 

Only a person defined as a “Relative” in RCW 26.11.010 can Petition the Court for visitation. Relatives are defined to include:
(1) Any blood or half-blood relative including first and second cousins;
(2) Stepfather, stepmother, stepbrothers, stepsisters;
(3) Any person who legally adopted a child or the child’s parents, and relatives of the adoptive parent;
(4) Spouses of above-named persons, even if the marriage has been terminated;
(5) Relatives of any half sibling;
(6) Extended family members as defines by law or custom of an Indian child’s tribe.

 

A Petition for Nonparental Child Visitation may be filed if the Petitioner is a defined Relative of the child, has an ongoing substantial relationship with the child for at least two years (or at least half of the life of a child under two years of age), and that the child is likely to suffer harm or substantial risk of harm if the petition is denied. A petition may be filed only one time by any person.

 

The new law actually declares a “Presumption” in favor of a fit parent who is opposing the Petition for Nonparental Child Visitation. To prevail on the petition, the Nonparental Petitioner must overcome this legal presumption in opposition to the petition by “Clear and Convincing” evidence that the Petition is in the best interest of the child. In other words, the relative must make a very convincing argument that there is good reason for the Court to grant visitation over the objections of the parent This is an extremely high and difficult burden of proof.

 

When reviewing the Petition, the Court must consider 12 factors set forth in the new law, and rule that the Petitioner has proven each of these factors by Clear and Convincing evidence. After reviewing the Petition the Court may either deny the Petition outright, or if the Court determines that the Petitioner has met their burden of proof, the Court will order a Hearing where the parties will present testimony. If a Hearing is granted, the opposing parent may request that the Nonparental petitioner be ordered to pay all of the parent’s attorney fees and cost in advance of the Hearing.

 

The Legislature is attempting to create an opportunity for Nonparental persons to seek visitation with a child that they love, while protecting the constitutional rights of an opposing parent. The opportunity has been created, but success for the Petitioner relative will be difficult to achieve.

 

You can view the state RCWs related to this topic by clicking here