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Posts Tagged ‘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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The Washington State Court of Appeals, Division II, held recently that a CR2A agreement was binding on both parties, when, at different times, each party had moved to enforce it.

Court Rule 2A (“CR2A”) provides that the court will not enforce an agreement between the parties unless it is made in open court on the record, or unless it is in writing and signed by the attorneys.  CR2A agreements are commonly used to memorialize agreements made during mediation or other Alternative Dispute Resolution.

The case, Marriage of Teresa Grimsley-LaVergne and Mark A. LaVergne, No. 37731-4-II arose from a drawn-out dissolution process that began in 2001 and ended in 2009.  During that process, in 2004, the parties engaged in an eleven-hour marathon mediation with a professional mediator.  Pursuant to that mediation, the parties signed a CR2A agreement.    

In this case, the CR2A agreement was hard to read.  It was scribbled and interlineated.  Sections were scratched out and then sometimes reinserted.  Nonetheless, it was signed and it contained language indicating that the parties agreed to it and thought it was fair and equitable.

The night after the mediation, the parties had sex and conceived twins.  For the next three years, they lived together and appeared to have reconciled.  Nonetheless, the parties also executed at least some of the provisions of the CR2A agreement and, at different times, attempted to enforce it.

In 2009, the Husband attempted to set aside the CR2A agreement because, he claimed, the parties had reconciled.  The trial court, after a two-day trial, denied the motion.  The Husband appealed.  The Court of Appeals affirmed the trial court, holding that, by moving to enforce the CR2A agreement, the parties had waived their right to appeal its enforceability.

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A recent termination of parental rights case affirmed the trial court’s conclusion that the mother’s progress towards correcting her parental deficiencies was too little, too late.

In Welfare of A.G., L.S. cause # 27659-7-III consolidated with cause # 27660-1-III, the trial court concluded that “there is little likelihood that conditions will be remedied so that A.G. or L.S. could be returned to their mother in the near future.”
Termination of parental rights is a two-step process. First, the state must show that it has established the six statutory requirements by clear, cogent, and convincing evidence. Second, once those factors have been established, the state must show by a preponderance of the evidence that termination of parental rights is in the best interest of the child.

The six statutory factors are:

1. the child has been found dependent;

2. the court has entered a dispositional order;

3. the child has been removed from the custody of the parent for at least six months;

4. remedial services have been offered and/or provided;

5. there is little likelihood that the conditions will be remedied in the near future; and

6. that continuation of the parent/child relationship clearly diminishes the child’s prospects for early integration into a permanent and stable home.

The factors at issue in this case were numbers five and six. The court explained that “near future” depends on the age and circumstances of the child, but that a parent’s inability to correct their deficiencies within one year creates a rebuttable presumption that the conditions will not be remedied.
The appellate court held that the trial court’s factual findings supported its conclusion that the state had established elements five and six.

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Our State Supreme Court recently held that the de facto parentage relationship does not apply to stepparent/stepchild relationships. Parentage of M.F., Cause # 81043-5 (Wash. Sup. Crt. April 1, 2010).

Our state courts recognized the de facto parent concept in November, 2005, to fill in a gap in the statutory scheme governing child custody. That gap concerned parents who had a child born from artificial insemination and then got into a custody dispute over the child.

The Parenting Act applies to custody disputes between parents. The definition of parent includes a woman who is artificially inseminated and gives birth to the child. However, it does not include the woman’s partner who intended to raise the child with the mother and created a parent-like bond with the child.
Likewise, the Non-Parental Custody Act applies to custody disputes between a parent and a non-parent. It also does not include the spouse of a woman who gave birth via artificial insemination where the mother and spouse intended to raise the child together as a family.
To fill in this gap between the statutes, the court, in Parentage of L.B.155 Wn.2d 679, 122 P. 3d 161 (2005), established the test for determining de facto parentage:

1. the natural/legal parent consented to and fostered the parent-like relationship;

2. the de facto parent lived with the child in the same household;

3. the de facto parent assumed the obligations of parenthood without expectations of financial gain;

4. the de facto parent and child have a bonded, dependent relationship, parental in nature; and

5. the de facto parent has committed to a permanent, unequivocal and responsible role in the parent’s life.

Here, the court held that the de facto parent test does not apply to step-parents because they are not the constitutional equivalent of parents. Rather, they are a third-party and therefore the non-parental (“Third-Party”) custody act applies.

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Division III recently held that a court may modify a parenting plan based on facts previously before the court in unsuccessful petition to modify the parenting, or on facts that arose prior to entry of an agreed parenting plan.
In Marriage of Zigler and Sidwell, Dkt # 27378-4 (Div. III, 3/4/2010), the parties entered two modifications of the parenting plan by agreement. After each agreed modification, the father then attempted to modify the order again, via court action. The first time he was unsuccessful. The second time he was successful.
The timing of each parenting plan dispute was as follows:
• 2002: final parenting plan;
• April, 2004: agreed modified parenting plan;
• December, 2004: father filed petition to modify. Court denies petition;
• March, 2006: agreed modified parenting plan; and
• April, 2006: father files petition to modify. Court grants petition.

By law, parties to a parenting plan may modify it by agreement. Absent agreement, the moving party must demonstrate a substantial change of circumstances in the non-moving party or the child, based on facts unknown to the court at the time of entry of the existing parenting plan.
In addition, the moving party must demonstrate that the child’s current living situation is detrimental to his health and that the harm likely to be caused by change is outweighed by the advantage of change.
On appeal, the mother argued that evidence regarding the substantial change of circumstances the father used to support his unsuccessful petition to modify in 2004 was inadmissible because the commissioner had already considered it and denied the petition anyway.

The court of appeals disagreed, holding that all evidence after entry of the original parenting plan in 2002 was admissible.

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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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Our state’s Supreme Court recently affirmed that the statutory provision regarding the termination of parental rights means what it says. The state may not terminate parental rights to a child without offering the parent services to correct whatever parental deficiencies may form the basis of the termination petition.
In Welfare of C.S., docket No. 81720-1, DSHS brought termination proceedings against a mother with substance abuse problems. Pursuant to the termination statute, DSHS offered her drug treatment services.
Ultimately, the treatment worked. At the time of trial, the mother had been clean and sober for a year, verified by twice-weekly urinalysis. Nonetheless, DSHS refused to reunite mother and child, asserting that the mother was ill-equipped to handle the child, who had ADHD, Oppositional Defiant Disorder, and some other issues.
DSHS refused to offer the mother services in how to manage the child, although it did offer such services to the foster parent. The trial court then terminated parental rights and the appellate court affirmed.
The Supremes reversed.

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