Washington Nonparental Visitation

A non-parent may petition for Washington child visitation if they are a relative, have “an ongoing and substantial relationship with the child,” and show a likelihood the child will experience harm or a substantial risk of harm without visitation.  RCW 26.11.020.  In a recent case, a child’s grandparents appealed the trial court’s dismissal of their petition for visitation with their grandchild.

The father had residential time with the child under the parenting plan.  He lived with his parents for a period of time, such that the child stayed with his grandparents during his father’s residential time with him.

According to the appeals court’s opinion, the father had issues with drugs and mental illness.  He was arrested following an incident involving the mother, her brother, and the child. At some point thereafter, the father’s whereabouts became unknown to the parties.  The mother continued to allow the grandparents limited visitation with the child.  She attended the visits, sometimes with a relative.  The grandparents claimed they were supportive of the mother, but the mother and her family claimed the grandparents were rude, controlling, and aggressive.

The grandparents petitioned for visitation with the child.  They noted that the child had suffered “substantial loss” with the loss of his father, and stated the loss he would experience if he was not allowed to maintain relationships with the rest of his father’s family would be difficult to quantify.  They also claimed that children who “feel rejected or . . . abandoned by family” have more mental health issues and higher incidents of substance use.

The superior court denied the petition, concluding the grandparents had not shown through clear and convincing evidence that the child would likely experience harm or the substantial risk of harm if the petition was denied. The superior court believed the mother would allow visitation to continue.

The grandparents appealed, arguing the court had applied the wrong burden of proof at the hearing, failed to consider future testimony, ignored evidence, and reached the wrong conclusion regarding harm.

In a nonparental visitation case, the petitioner must file an affidavit alleging a substantial relationship with the child and that the child would likely face harm or the substantial risk of harm without visitation.  If the court determines, based on the petition and affidavits, that it is more likely than not it will grant visitation, it must hold a hearing.  RCW 26.11.030.

RCW 26.11.040 governs the evidentiary hearing.  RCW 26.11.040 provides that there is a presumption that denial of visitation by a fit parent is in the child’s best interest and does not make harm or substantial risk of harm likely.  The petitioner must prove the likelihood of harm or substantial risk of harm by clear and convincing evidence.

The grandparents argued the trial court applied the wrong burden of proof when it wrote that they had “not rebutted with clear and convincing evidence” the likelihood of harm.

The appeals court concluded, however, that the trial court must, in the threshold hearing, reflect on the higher burden of proof to determine whether it was likely to grant visitation.  The appeals court also pointed to a parent’s fundamental liberty right to autonomy in making decisions for their child.  The appeals court also noted the cost of moving to a full hearing when the petition was deficient.

The grandparents argued the court should have considered the potential they would introduce additional evidence at the evidentiary hearing.  The appeals court noted, however, that parties have the responsibility to advance all of their relevant evidence at the threshold stage.

The grandparents also argued the trial court had not weighed the evidence. The trial court had stated it had reviewed the grandparents’ petition and all of the declarations, documents and affidavits the parties submitted.  Additionally, the appeals court noted a finding the grandparent’s failed to sufficiently allege harm did not require an extensive analysis of conflicting testimony because it was based on the inadequacy of the petition.

The appeals court pointed out that a petitioner does not show harm just by alleging the child will lose the benefit of a continued relationship with extended family.  The grandparents’ petition described the potential harm the child might face from having an absent father and claimed that it would put the child at greater risk of mental illness, substance abuse, and risky behavior.  They also alleged that losing his father’s half of the family would cause an “unquantifiable loss.” The appeals court noted, however, that loss does not necessarily mean harm.

The grandparents also claimed the child would be advantaged by the love and affection they provided.  The appeals court noted, however, that the fact that a child would receive advantages did not mean that he would be harmed without them.

The appeals court found no abuse of discretion and affirmed the trial court’s dismissal of the petition.

Showing the child will likely face harm or the substantial risk of harm if visitation is denied can be a difficult burden to meet. A skilled Seattle child custody attorney can work with you to identify the information and evidence needed for your case.  Call Blair & Kim, PLLC, at (206) 622-6562 to set up a consultation.


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