Third party custody only granted in extraordinary circumstances
This is my site Written by CPorterEsq on December 7, 2015 – 1:26 pm

If a grandparent has been caring for their grandchild for a while because the child’s parents have been unable to provide a stable home, it seems only natural that s/he might want to petition the court for permanent custody of that child. The Washington Court of Appeals made it clear in a ruling issued last Monday, that the standard for granting custody of a child to a third party is extraordinarily high.[1]

The case involved a mother who had a history of mental illness, dated a level 1 sex offender, frequently left her child in the care of others, failed to take advantage of visitation rights, and moved frequently. The grandparents felt that the mother was not fit to be a parent and sought custody of their grandchild.

The court articulated the two alternative tests for granting a third party custody petition under RCW 26.10.030(1): “(1) the natural parent is unfit, or (2) the parent causes actual detriment to the child’s growth and development.”

The petitioning party must prove his or her case by clear and convincing evidence. The burden of proof is so substantial that, when properly applied, it will be met only in extraordinary circumstances.

The court concluded that even though the mother had a rocky history, there were no facts demonstrating the mother was currently an unfit parent. In addition, there was no evidence that the child suffered any detriment. Consequently, the court reversed the trial court’s decision and denied the grandparents’ petition for custody.

Takeaways: When and if a legal parent becomes fit to care for the child, the nonparent has no right to continue a relationship with the child. The test for fitness of custody is the present condition of the parent and not any future or past conduct.


[1] In re Custody of ALD, No. 32441-9-III (Dec. 1, 2015).

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