Parents have a fundamental right to make certain decisions regarding their children, including decisions regarding visitation with grandparents. A nonparent relative may petition for visitation if they have an ongoing and substantial relationship with the child and harm or the substantial risk of harm to the child is likely if the court denies visitation. RCW 26.11.040. The court will order visitation if it is in the child’s best interest and there is a likelihood of harm or the substantial risk of harm if visitation is not granted. Washington family law presumes the decision of a fit parent to deny visitation to a nonparent is in the child’s best interest and does not create either a likelihood of harm or a substantial risk of harm. RCW 26.11.040(2). To overcome the presumption, a nonparent seeking visitation must show by clear and convincing evidence that visitation is necessary to prevent harm or the substantial risk of harm to the child. RCW 26.11.040. The petitioner must state the specific facts supporting the petition in an affidavit. The trial court will only hold an evidentiary hearing if it finds it more likely than not the petition will be granted based on the petition and affidavit. RCW 26.11.030.
A grandmother recently appealed a court’s denial of her petition for visitation. The child and both parents lived with her grandmother after the child was born in 2015. The father and child moved out after he learned the mother was using drugs again. The father was granted full custody. The parenting plan prohibited contact between the mother and child until the mother could show she had been sober, employed, and stable for an extended period of time. The parenting plan also stated the grandmother’s home was not appropriate for the mother and restricted the grandmother from driving the child due to her history of DUIs.
After the custody case concluded, the father allowed the mother’s grandparents to visit the child. They sometimes took her to visit the grandmother. The grandmother also sometimes spent holidays and the child’s birthday parties with the father’s family. The relationship between the father and grandmother soured, however, due to disagreements regarding the child and concerns about the grandmother’s use of alcohol. The father then limited the grandmother’s time with the child.
The grandmother petitioned for visitation with the child in 2020. She alleged she had a significant emotional relationship with the child. She also expressed concerns the child was sharing a bedroom with the sons of his father’s girlfriend.
Both parents opposed the visitation petition. The mother pointed to the grandmother’s dependence on alcohol and volatile behavior.
The trial court dismissed the petition, finding the grandmother had not presented sufficient evidence to show denial of visitation would cause a likelihood of harm or substantial risk of harm to the child. The trial court acknowledged that there could be a loss of a relationship between the child and grandmother and potentially other family members, but that loss did not constitute harm or substantial risk of harm under the case law.
The grandmother appealed, arguing the trial court erred in finding she had not presented sufficient evidence of a substantial risk of harm to the child for a hearing.
There was no dispute that the father was fit. He was therefore entitled to the presumption. The grandmother needed to show by clear and convincing evidence that the child would be harmed or subject to the substantial risk of harm if she was not granted visitation.
The grandmother’s petition focused on her relationship with the child and on the father’s parenting decisions. The petition did express concern regarding the child sharing a bedroom with the girlfriend’s children and reference the father had been violent during the mother’s pregnancy, but she did not provide specific information. The appeals court also noted that she had not alleged denial of visitation would cause harm to the child.
The appeals court found there was no abuse of discretion in the court’s finding the grandmother had not provided sufficient facts to show she was likely to succeed in her petition.
The appeals court affirmed the trial court’s decision and awarded the father attorney’s fees.
It is generally difficult for a grandparent or other nonparent to overcome the fit parent presumption and obtain visitation rights to a child over a parent’s objection, but there are circumstances where it is possible. Whether you are a nonparent seeking visitation or a parent, an experienced Washington child visitation attorney can advise you of your rights and options. Contact Blair & Kim, PLLC, at (206) 622-6562 to schedule a consultation to discuss your situation.