Posts Tagged ‘custody battle’

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 new decision from the court of appeals, Div. 1, In Re the Parenting and Support of: A.r.k.k. & N.j.k., illustrates the perils of taking your custody battle to another state. Parents in particularly tumultous child custody battles with the other parent will sometimes move across state boundaries with their children to prevent the other parent from seeing the children.

Depending on one’s perspective, this may be a response to domestic violence or another chapter in a campaign of parental alienation. Either way, it probably doesn’t work.


In this case, the mother got a one-year-long domestic violence protection order against the father in San Juan County, Washington. She then left Washington for Montana. The father followed her a few months later.

While the parents were living in Montana, the domestic violence protection order in Washington expired and jurisdiction ripened in Montana. Simultaneously, the parents renewed their custody battle in Montana.

Over a year later, the mother returned to Washington and obtained a new domestic violence protection order against the father. The father, who was still in Montana, then petitioned the Montana court for a restraining order and an interim parenting plan. The mother did not return for the hearing. The Montana court then adopted the father’s interim plan, ordered the children back to Montana, and found the mother in contempt.

To enforce the Montana order, the father obtained a writ of habeas corpus from the court in Washington. The mother complied with the writ and returned with the children to Montana. However, during Christmas vacation, she took the children back to Washington and took up residence in a battered women’s shelter in King County, Washington.

The father then obtained a second writ of habeas corpus, but the writ was never enforced. The mother, meanwhile, filed for an interim parenting plan. The Washington Court then held a hearing to determine which state had jurisdiction.


The issue at the hearing was which state had jurisdiction (in the language of the Uniform Child Custody Jurisdiction and Enforcement Act, which state was the home state) — Washington, based on the original residence of the children, the expired domestic violence protection order, and the second domestic violence protection order, or Montana, based on the residence of the children when the interim parenting plan was entered.

The Washington court held that jurisdiction lay in Montana.

The original residence of the children was no longer operative because domicile had changed; the expired domestic violence protection order did not confer jurisdiction because it had expired; and the new domestic violence protection order was invalid to start with because the court never had jurisdiction to issue it. Therefore, the home state, Montana, had jurisdiction.

Moving across state borders to prevent your ex-spouse from seeing the children is not a winning strategy. If you are facing domestic violence problems, renewing your existing domestic violence protection order is going to be much cheaper, and probably more effective, then flight.

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