Posts Tagged ‘3rd party custody’

Our State Court of Appeals, Division I, recently held that foster parents may also be de facto parents. In Re the Interest of: AFJ, docket # 63919-6. The ruling is a positive development for a very small category of adults who seek custody or a residential schedule for child, but are not the child’s biological or adoptive parent and do not fit under the non-parental custody act.

Our Supreme Court established the de facto parent category in the landmark case called In Re: Parentage of L.L.BL.L.B. was a custody dispute between two women who had lived together in a stable marital-like relationship and jointly decided to conceive a child via artificial insemination. Upon the break-up of the relationship, the woman who carried the child – the biological mother – sought to prevent the other woman from seeing the child.

The L.L.B. court held that the non-biological mother had parental rights to the child based on the following five-prong test: 1) the natural or legal parent consented to and fostered the parent-like relationship; 2) the petitioner and the child lived together in the same household; 3) the petitioner assumed obligations of parenthood without expectation of financial compensation; 4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature; and 5) the petitioner has fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.

The primary issue in AFJ was prong number 3. The non-biological mother had cared for the child virtually his entire life – three and a half years – and had accepted foster-care payments for eight of those months. The biological mother argued that the non-biological mother flunked prong three because of these foster payments. She buttressed this argument by reference to public policy and case law regarding foster parents.

The foster parent stem is designed to provide dependent children with a temporary residence while their parents get their life in order or someone else steps into their shoes. Foster parents are generally precluded from becoming the child’s parents. However, this new case provides a limited exception. The foster parent may become the child’s legal parent if she or he is also the child’s de facto parent.


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A unanimous Supreme Court decision clarified the standards the non-parent must meet for the court to hear a non-parental custody petition. In Re Custody of EATW, docket # 81945-9, held that a trial judge shall deny adequate cause and dismiss a third-party custody petition unless the petitioner files an affidavit that 1) alleges the child is either not living in the physical custody of one of its parents or that neither parent is a suitable custodian, and 2) facts showing that, if true, both parents are unfit or, placing the child with either parent would result in actual detriment to the child’s growth and development.
The opinion is based on the clear language of the statute and the standards established by the controlling third-party custody case, which is In Re Custody of Shields.
As the court explained , the statute strikes a balance between parental rights, which are protected by the 14th amendment to the Constitution, and children’s rights. Parents have the right to raise their children, but children have a sometimes countervailing right to basic nurture, physical and mental health, and safety. In striking the proper balance, the child’s health and safety shall be the paramount concern.
The unfit parent or actual detriment to the child standard, according to the court, strikes this balance. For a court, after trial, to award custody of a child to a non-parent, therefore, it must find either that the parent is unfit or that placing the child with the parent would result in actual detriment to the child’s growth and development.
The statute also seeks to weed out spurious non-parental custody petitions at the beginning of the case, before they cost the parties and the taxpayer’s money. The statute does this by requiring an adequate cause hearing. At the hearing, the petitioner must present prima facie evidence, e.g. evidence submitted in a declaration, that it will be able to prove it case with live testimony and other evidence at trial.

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A recent case from division one, Custody of CCM, gives me the unique opportunity to blog my own case. I represented the appellants in this case. We won.

CCM pitted a non-Indian father against the Indian grandparents. I had the grandparents. Thus, the facts lay in the intersection between two sometimes contradictory statutes: the U.S. Indian Child Welfare Act and Washington’s third-party custody statute.

The case raised several issues: 1) Notice to the child’s Indian tribe, 2) Cure for defective notice, 3) The standard for determining where to place the child, and 4) Child support. We won on three of the four issues.

In terms of notice, the court held that ICWA requires that the child’s Indian tribe needs formal notice of any custody proceeding regarding the child. Formal notice means certified mail, return receipt requested, to the proper tribal authority. If the notice is defective in any way, the Tribe gets a new trial.

In terms of the placement standard, in a custody dispute between two parents, the state-law standard is best interest of the child. However, in a custody dispute between a parent and a non-parent, the standard for placing with the non-parent is much higher. The child is placed with the parent unless 1) the parent is unfit or 2) moving the child from the non-parent to the parent would cause the child actual detriment to his health and well-being.

I argued that this standard didn’t apply to the grandparents because they were the Indian custodians. Since ICWA treats parents and Indian custodians the same, the standard should be the same – best interest. I still think it is a good argument, but it lost. The court held that, where federal law – ICWA – treats the parties the same, the standard for which party gets the child is the state law standard.

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A new case from division one, Parentage of J.A.B., Docket No. 59165-7, offers some hope for children who are living with their stepparents or other relatives and would like to remain there.

In my practice, I often represent grandparents, step-parents, or other relatives who are caring for young children because the parents are unsuitable. These kinds of clients have two legal hooks to gain legal custody of the children: a petition for custody under the non-parental custody statute or a finding by a court of competent jurisdiction that they are the child’s de facto parents.

The non-parental custody statute is unsatisfactory to most clients for two reasons. First, it is an uphill battle. To get legal custody of the children, the client must prove that the natural / legal parent is either unfit or that placing the children with the natural / legal parent would cause actual detriment to the children’s growth and development. In other words, the parents must be seriously messed up: schizophrenic, meth. users, that kind of thing. In the alternative, the children must be seriously messed up, such that the non-parents are the only party that can reasonably be expected to help them. For example, in one case, the step-mother, in a contest with the father, got the child because the child was deaf, the step-mother was proficient in sign language, and the father was mediocre at best.

Also, even if the client does get custody, the end result is of questionable value. In a case that I am currently appealing, the judge concluded that a non-parental custody decree was tantamount to terminating the parental rights of the parent. However, in this new case that I am blogging, the court concluded that the third-party decree only offers a temporary and uncertain right to custody.

The de facto parent hook is also unsatisfactory to most clients because the principle is undeveloped and it isn’t obvious who qualifies and who doesn’t. L.B., the case that first recognized the de facto parent cause of action, established a 4-part test for determining whether someone is a de facto parent: 1) the natural/legal parent consented to and fostered the development of the parent-like relationship, 2) the petitioner and child lived together in the same household, 3) the petitioner assumed the obligations of parenthood without expectation of financial compensation, 4) the petitioner has been the parental role long enough to have established a bonded, dependent, parent-like relationship.

The issues I have litigated regarding this test are: 1) what constitutes consent? 2) are child support payments financial compensation? Consent is the big one. In the cases I have had or read about, the parent dumps off the children with the grandparents and essentially abandons them. Is abandonment consent? The answer is usually no. Apparently the courts believe that it is o.k. for a parent to remove himself or herself from the child’s life for months or even years, and then come back and gain custody. By the way, I think this is terrible for children.

This case doesn’t really address consent because it was pretty obvious that the mother was unfit (severe mental illness) and that the father consented (he signed the consent to terminate parental rights and to adopt, but then revoked his consent. The child lived with the step-father from 4 mos. Until age 7.) This case does address financial compensation, finding that the child support payments were expended for the benefit of the child, not to compensate the step father.

The other argument that tends to arise in de facto parentage cases is who is even eligible to take the test in the first place. I think that any person is eligible to take the test. If the children are living with you, regardless of how the children got there, you should be able to protect that relationship by a finding of de facto parenthood. The other side tries to limit potential test takers to gays and lesbians who had the child via artificial insemination.

This says that the test is not limited to people who cannot legally marry, e.g. gays and lesbians, but it also seems to suggest that the test is only available to people who have co-habitated, and then split up, are eligible to take the test. Factually, this means that de facto parent status is probably only available to gays and lesbians who have a child together, either by adoption or artificial insemination, and then split up, parent and step-parent who marry and then divorce, or hetero sexual couples who never marry and then split up.

I don’t think this is good for children because it excludes a whole category of people who step up to the plate and care for children while the parents do drugs or whatever. However, I think this is where the law of de facto parentage is heading.

Ultimately what needs to happen is that children need to be given a bill of rights. Children should have a fundamental right to remain in a stable and secure home where they are loved by and bonded to their primary caregivers, regardless of the legal or blood relationship between them.

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