Seattle Attorneys Blog
Parents have a liberty interest in their fundamental right to autonomy in raising their children. Courts must therefore give weight to a parent’s decision to deny visitation to the child’s grandparents. A court can only order Washington grandparent visitation over the objection of a fit parent if the grandparent shows that denying visitation would be harmful to the child. A grandmother and stepgrandfather recently challenged a court’s denial of their petition for visitation.
In July 2015, the mother moved with the children to Washington where her mother and stepfather lived from Las Vegas. The mother moved with the children to Oregon the following November. The father filed for divorce in June 2016. The mother brought the children back to Washington to stay with her mother and stepfather. She died of suicide that October.
The father did not immediately take the children. According to the appeals court’s opinion, he said he needed help taking care of things after the mother’s death. He also said the children were in school in Walla Walla, and he was focused on getting transferred to the Air Force Base in Spokane.
The father planned to come see the children in November. The grandparents, however, had already petitioned for non-parental custody and obtained a restraining order to keep him from taking the children. When the father would not agree to allow the children to stay with them, they had him served with the petition and restraining order.
The father got engaged while the nonparental custody case was pending. At the time of the hearing, he had been transferred and was living with his fiancée and her three children.
The trial court found no adequate cause and dismissed the grandparents’ petition. The court had noted the parents’ marriage had been affected by the mental health issues and alcoholism of both parents. There was evidence the father had received treatment from July 2015 through August 2016.
The court found the father’s issues had been or were being addressed and that he had family support and available social services. The court stated it could not find he was an unfit parent or that placing the children with him would actually be detrimental to them.
The grandparents petitioned for visitation in November 2018.
Nonparental visitation is only available to relatives who have ongoing and substantial relationships with the child. The petitioner must submit an affidavit including the “specific facts” that support the request for visitation. RCW 26.11.030.
The petitioner must, by clear and convincing evidence, rebut the presumption that a fit parent’s denial of visitation is in the child’s best interest and that it “does not create a likelihood of harm or a substantial risk of harm to the child.” RCW 26.11.040. The petitioner must do this by proving there is a likelihood or substantial risk of harm if the court denies visitation. Then, the petitioner must show by clear and convincing evidence that visitation is in the best interest of the child.
The case may only proceed to an evidentiary hearing if the court finds, based on the petition and affidavits, it more likely than not that the petition for visitation will be granted. RCW 26.11.030.
The court dismissed the petition, finding the grandparents had not shown the likelihood the petition would be granted. They appealed. The grandparents argued the trial court abused its discretion in finding they failed to show they were likely to be granted visitation.
The father stated his reasons for denying visitation were the grandparents’ “disregard for [him] as parent,” “willingness to manipulate and undermine [him] as a parent,” and their dishonesty. The appeals court found that the grandparents’ nonparental custody action without evidence the father was unfit supported his position.
The appeals court also noted the grandparents’ petition and declarations contained criticisms of the father’s parenting. The appeals court noted the father appeared to be handling the difficult situation of the mother’s death as he thought was best for his children, but the grandparents’ submissions indicated they thought they knew better than the father what was better for his children.
The grandparents argued the children would be cut off from their mother’s family if visitation were denied. The appeals court found a lack of connection with one side of the family was not a sufficient harm to justify the state intervening in the parent’s decision.
The appeals court found the trial court could reasonably find the grandparents were unlikely to rebut the presumption the father was acting in the children’s best interest and show that there was a likelihood or substantial risk of harm if the petition was denied.
The appeals court noted the children’s relationship with the grandparents had been long-distance for most of their lives. The court also noted that the grandparent’s relationship with the father had devolved significantly over time.
The appeals court also acknowledged that denying visitation would cut the children off from their mother’s family, but pointed out that the legislature did not include preservation of a connection to a deceased parent’s family as a “best interest” factor in a relative visitation claim.
The grandparents claimed they had a close relationship with the children, but the appeals court noted their evidence was “conclusory.” They provided few specifics regarding their contact with the children outside the few months when the children lived with them. The appeals court found that the trial court could have reasonably found their connection would not outweigh, by clear and convincing evidence, the harm of visitation. The appeals court, therefore, found no abuse of discretion in the dismissal of the petition.
The appeals court affirmed, and awarded the father reasonable attorney’s fees.
As this case shows, it can be very difficult for grandparents or other relatives to obtain visitation rights over the parent’s objection. Even so, a parent fighting a nonparental visitation petition needs a skilled Washington family law attorney on his or her side fighting to protect the children. Call Blair & Kim, PLLC, at (206) 622-6562 to schedule a consultation.