Gouras & Amis P.L.L.C.

GOURAS & AMIS P.L.L.C.

Child Custody Information:
About Third Party Custody

 

Third party custody is governed by RCW 26.10. This statute used to be referred to as the grandparent custody act. Because the statute also permits aunts, uncles and other interested third parties to obtain custody, this nomenclature has been changed.

In general, third parties may seek custody of minor children where either both parents are unfit, or where the children have been voluntarily placed with a third party by the parents.

Under the prior statute there was no threshold requirement before a case could proceed. RCW 26.10 was changed in 2003, however, to provide as follows:

1. "A party seeking a custody order shall submit, along with his or her motion, an affidavit declaring that the child is not in the physical custody of one of its parents or that neither parent is a suitable custodian and setting forth facts supporting the requested order. The party seeking custody shall give notice, along with a copy of the affidavit, to the other parties to the proceedings, who may file opposing affidavits." 2. "The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order should not be granted."

Because of the new threshold requirement, potential third party custodians are well advised to gather and present their evidence prior to filing their initial motion for temporary relief. If the court finds that there is not adequate cause to proceed with the case, the case will be dismissed. If the court finds that there is adequate cause, temporary orders may be entered, a parenting investigation may take place and the case will proceed to trial if it is not settled first.

The third party custody statute also contains language permitting the parties to obtain visitation only. This section of the statute was invalidated by both the Washington State Supreme Court and the United States Supreme Court in the case of Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 21 (1998). As such, there is no right to grandparent (or third party) visitation under RCW 26.10.

Third party visitation was also a possibility in an active divorce case between the parents. RCW 26.09.240. This visitation statute was invalidated by the Washington State Supreme Court. In Re Parentage of C.A.M.A., 154 Wn. 2d 52 (2005). Third parties are currently given the option of seeking custody or nothing at all.

Third party custody cases are often a rescue action for children in danger. Usually, the grandparents do not want to act as "parents" again, but feel that they have to intervene. If this is necessary, it is important to know that there is a statute that permits you to save your grandchildren. Because of the elimination of visitation in Troxel and the new requirements of a threshold hearing, however, it is important to properly prepare the case prior to filing. An experienced attorney should be retained as soon as possible.

 

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MODIFICATIONS

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