The Washington State legislature has enacted two statutes which allow for
a cause of action for visitation with children by a non-parent, third
party: RCW 26.09.240 and RCW 26.10.160(3). Both statutes were declared
facially unconstitutional by the Washington State Supreme Court.
In re Custody of Smith, 137 Wn.2d 1, 969 P.2d 21 (1998),
aff’d on other grounds sub nom, Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The U.S. high Court
affirmed, but with a plurality, and therefore very narrow, holding. While
the U.S. Court explained that it shared the Washington court’s misgivings
about the statutes, it refused to declare them facially unconstitutional.
Thus, while providing a declaration of the constitutional problems in
third party visitation statutes which guides state court jurisprudence,
Troxel’s lack of finality has left the door open for courts to attempt other solutions
to the problem of third party visitation.
This memorandum addresses the following questions:
- Is a cause of action for third party visitation available under either
RCW 26.09.240 or 26.10.160(3)?
- Is a common law or action in equity for third party visitation available
under Washington law?
- Is there pending legislation in Washington State that would provide a statutory
remedy for persons seeking third party visitation?
Question 1: Is a cause of action for third party visitation available under
either RCW 26.09.240 or 26.10.160(3)?
No. The Washington State Supreme Court has held that both statutes are
facially unconstitutional and therefore inoperative.
RCW 26.10.160(3) reads:
Any person may petition the court for visitation rights at any time including,
but not limited to, custody proceedings. The court may order visitation
rights for any person when visitation may serve the best interest of the
child whether or not there has been any change of circumstances.
In pertinent part, RCW 26.09.240 reads:
(1) A person other than a parent may petition the court for visitation
with a child at any time or may intervene in a pending dissolution, legal
separation, or modification of parenting plan proceeding. A person other
than a parent may not petition for visitation under this section unless
the child’s parent or parents have commenced an action under this
(3) A petition for visitation or a motion to intervene pursuant to this
section shall be dismissed unless the petitioner or intervenor can demonstrate
by clear and convincing evidence that a significant relationship exists
with the child with whom visitation is sought…
(4) The court may order visitation between the petitioner or intervenor
and the child between whom a significant relationship exists upon a finding
supported by the evidence that the visitation is in the child’s
In sum, these statutes allow for any third party to petition for visitation
with any child involved in any family law proceeding; and such visitation
shall be granted upon a requisite showing of a significant relationship
between the petitioner and the child, and that said visitation is in the
child’s best interest.
However, “it is undisputed that parents have a fundamental right
to autonomy in child rearing decisions & without state interference.”
Smith, 137 Wn.2d at 13,
citing, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), et al. Further, “[i]t
is cardinal with us that the custody, care and nurture of the child reside
first in the parents, whose primary function and freedom include preparation
for obligations the state can neither supply nor hinder.”
Id.at 15. Furthermore, the state may only infringe upon this right “if
it appears that parental decisions will jeopardize the health or safety
of the child, or have a potential for significant social burdens”
as part of a strict scrutiny analysis.
Id. at 17,
citing, Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972).
The statutes at issue here do not require a prima facie showing that harm
to the child will result unless visitation with a third party is granted,
and the “best interest of the child” standard is not sufficient
to justify a compelling state interest.”
Id. at 20. “State intervention to better a child’s quality of
life through third party visitation is not justified where the child’s
circumstances are otherwise satisfactory.”
Id. Furthermore, “the statutes lack other safeguards to prevent stable
families from defending in court against frivolous petitions for visitation.”
Id. Thus, the Washington State Supreme Court concluded that the statutes at
issue “impermissibly interfere with a parent’s fundamental
interest in the care, custody, and companionship of the child.”
Id. at 21.
Smith was a consolidation of several cases heard in Washington, one of which,
Troxel, was granted certiorari by the U.S. Supreme Court. In
Troxel, two children were born out of wedlock and lived with their parents for
about a year, when the parents separated and the children lived with their
mother (Granville). The father lived with his parents, the Troxel’s,
and brought the children to their home for regular visitation. After the
father committed suicide, the Troxel’s and Granville disagreed as
to how much the children ought to visit with their grandparents (the Troxel’s),
and the latter petitioned for visitation under RCW 26.10.160(3).
The U.S. Supreme Court largely agreed with the holding of the Washington
high court, but refused to declare the statute facially unconstitutional.
Troxel, 530 U.S. at 73. Instead, the Court found that the statute was unconstitutionally
applied to Granville based on four factors: (1) The Troxel’s made
no showing that Granville was an unfit parent.
Id. at 68. (2) The Washington trial court gave no special weight to the parent’s
(Granville’s) determination of the children’s best interest.
Id. at 69. (3) Granville never denied visitation, only limited it.
Id. at 71. (4) The “sweeping breadth” of the Washington statute
which allows “any” person to petition at “any” time.
Id. at 73.
Because of this narrow holding, and because
Troxel only considered RCW 26.10.160(3), it may be argued that a party may seek
relief under 26.09.240 if the standards laid out in
Troxel are met in a given case. Indeed, this is exactly what the petitioner in
In re Parentage of C.A.M.A., 154 Wn.2d 52, 109 P.3d 405 (2005) argued. In that case, the paternal
grandparents, who had lived with the child in question, sought visitation
with the child by intervening in a paternity suit, which was otherwise
agreed to by the biological parents. The trial court dismissed the petition
on the parent’s motion, ruling that no third party visitation statute
Troxel. The Court of Appeals reversed, holding that 26.09.240 survived
In re Parentage of C.A.M.A., 120 Wn.App. 199, 84 P.3d 1253 (2004).
However, the Washington Supreme Court reversed the court of appeals, holding
that the statute’s “presumption in favor of grandparent visitation
is unconstitutional under
Troxel and the application of the ‘best interests of the child’ standard
rather than a ‘harm to the child’ standard is unconstitutional under
C.A.M.A., 154 Wn.2d at 66. Furthermore, the Court considered whether these unconstitutional
provisions could be severed from the statute, preserving the statute’s
potency, and held that it could not.
Id. at 67. The Court reasoned that because “the legislature would not
have passed the statute without both the grandparent presumption and the
best-interests-of-the-child standard” the statute is unconstitutional
in its entirety.
Id. at 69-70.
Finally, so as to remove all doubt about the validity of either statute,
the Washington Supreme Court has recently held that because of its holdings in
C.A.M.A. “it is clear that Washington’s third party visitation statutes…are
facially unconstitutional” and therefore “totally inoperative”.
In re Parentage of L.B., 155 Wn.2d 679, 715, 122 P.3d 161, 180 (2005). Further, “until the
legislature amends the relevant statutes, there exists no statutory right
to third party visitation in Washington.”
Id. at 714-15.
Question 2: Are there common law or equity remedies available for persons
seeking third party visitation?
Yes, though probably only under narrow circumstances. Under
In re Parentage of L.B., the Washington Supreme Court has acknowledged a limited common law or
“equity” right of third party visitation if the petitioner
can meet the standard of “de facto” parent. The announced
test for de facto parentage is that a person who has fully and completely
undertaken a permanent, unequivocal, committed, and responsible parental
role in the child’s life, may petition for de facto parent status,
the elements of which are: (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,
and (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.
The Washington State Supreme Court has announced a common law, equity action
for de facto parent status. In
L.B., the parties were a female, same sex couple who had a child together through
artificial insemination during their twelve year relationship. When the
child was six years old, the parties acrimoniously ended their relationship,
with the biological mother refusing the other “parent” visitation
with the child. The other parent petitioned for visitation under three
theories: (1) that she be declared the legal parent of L.B. under the
Uniform Parentage Act, (2) that she be declared a parent by equitable
estoppel or as de facto parent, or (3) that she be allowed statutory third
party visitation rights.
L.B., 155 Wn2d at 685. The trial court found that neither party is unfit, both
care deeply for the child, and that nothing in the record shows that the
child has been harmed by not visiting with the other parent; however,
the court denied relief on all three grounds.
Id. The court of appeals, however, recognized a common law de facto parent
status, upheld by the Washington Supreme Court1.
In announcing a common law “equity” action for declaration
of de facto parentage, the Washington Supreme Court based its holding
on several grounds.
First, under RCW 4.04.010, courts have “invoked their equity powers and
common law responsibility to respond to the needs of children and families
in the face of changing realities…in spite of legislative enactments
that may have spoken to the area of law, but did so incompletely.”
L.B. at 689.
Second, Washington common law has recognized the status of “psychological”
or “de facto” parent.
Id. at 691-932.
Third, a survey of legislative pronouncements on child custody reveal: (1) a
certain and unwavering commitment to “best interests of the child”
and child centered approach to custody disputes; (2) a proclamation in
RCW 26.26.106 that marital status shall have no bearing on a child’s
rights to a legally cognizable relationship with parents; (3) a recognition
in RCW 26.26.051 and Washington Constitution art. XXXI(1) that sex and
gender roles do not serve as the proper basis for a distinction between
parents; and (4) the role of the judiciary in resolving family law disputes
where the legislature has spoken incompletely.
Id. at 701.
Fourth, the persuasive authority of other jurisdictions, especially the Wisconsin
Supreme Court’s holding in
In re Custody of H.S.H.-K., 193 Wis.2d 649, 533 N.W.2d 419 (1995) (holding that same sex parent could
seek equitable relief for visitation although no statutory relief existed)3.
Additionally, the Court adopted the four part test for de facto parentage
outlined in Brief Answer, Question 2,
supra, and made an addition: “recognition of a de facto parent is ‘limited
to those adults who have fully and completely undertaken a permanent,
unequivocal, committed, and responsible parental role in the child’s
L.B. at 708. Moreover, “a de facto parent stands in legal parity with
an otherwise legal parent, whether biological, adoptive, or otherwise.”
Id. However, “[a] de facto parent is not entitled to any parental privileges,
as a matter of right, but only as is determined to be in the best interests
of the child at the center of any such dispute.”
Id. at 708-9.
Regarding these last two points, the Court noted that an objection that
granting a non-parent de facto status infringes upon a biological parent’s
constitutionally protected liberty interest pursuant to
Smith, C.A.M.A., and
Id. This is because in those cases, the question was whether a
non-parent could infringe upon the rights of a natural or legal parent; whereas here
the dispute is between two parents in legal parity.
Id. Thus, once a person is found to meet the standard of de facto parent,
a constitutional objection along
Troxel lines is rendered moot.
Troxel “did not address the issue of state law determinations of ‘parents’
and ‘families’”, as its holding was narrowly addressed
to the application of the statute to the case at hand.
Id. at 711.
In conclusion, a party who meets the four part test for de facto parentage
and the threshold requirement of having fully and completely undertaken
a permanent, unequivocal, committed, and responsible parental role in
the child’s life, may petition for visitation under a common law
action for de facto parentage. However, the strict requirements would
seem to preclude petitioning the court for visitation with grandparents
or other significant adults who do merely have a strong, non-parental
type relationship with the child. Nevertheless, courts have not said that
such an action is impossible; and, given the court’s enthusiasm
for an action in equity in
In re Parentage of L.B., the question is worth asking.
May parties who are unable to meet the de facto parent standard seek third
party visitation in an action in equity? Since both Washington third party visitation statutes have been declared
completely inoperative, any such action must be brought in equity under
the common law in the manner allowed for an action for de facto parentage
as announced by the Washington Supreme Court in
In re Parentage of L.B.. However, that court unequivocally held that if the petitioner in that
case were unsuccessful in her action for common law de facto parentage,
she could not alternatively seek visitation under either third party visitation statute.
In re Parentage of L.B., 155 Wn.2d at 714-15 (holding that “until the legislature amends
the relevant statutes, there exists no statutory right to third party
visitation in Washington”).
Such a sweeping pronouncement can be interpreted in at least two ways.
Either the court intends to defer to the legislature on all issues of
third party visitation and only made a common law action available as
an emergency measure for parties in the very narrow circumstances of de
facto parentage; or, the court remains open about actions in equity in
this area and merely wished to avoid confusion about the applicability
of the statutes. In order to allow a common law third party visitation
action, a court would have to ascribe to the latter position. But notice
that when the
L.B. court precluded the petitioner’s cause under the statute, the court
would have to have been referring to the merely technical point that the
petitioner may not plead under the statute, but may still be granted relief
under the standards of the statute, albeit constitutionally purified according
to the holdings of
Troxel. This is, in fact, what the court of appeals in
L.B. seemed to do when it held that the petitioner may use the third party
visitation statute under circumstances that would be constitutional under
Troxel, before being reversed by the Supreme Court.
In re Parentage of L.B., 121 Wn.App. 460, 490, 89 P.3d 271, 286 (Div. 1, 2004),
rev’d, In re Parentage of L.B., 155 Wn.2d 679, 122 P.3d 161 (2005).
From this, it seems doubtful that a court would entertain an action in
equity for third party visitation absent a legislative pronouncement and
absent the kind of trying facts of
L.B.. An attorney considering whether to proceed with such an action would
have to carefully consider the specific facts of her case and decide whether
they would incite the kind of support for equitable relief that the facts of
L.B. did. Because such a proceeding would depend heavily upon specific facts,
I will only briefly outline the principles upon which an action could be built.
First, a party proceeding under this type of action would first argue that
an action in equity is justified under the court’s groundwork in
L.B.. Recall from the above discussion of that court’s holding that the
application of a common law de facto parent doctrine was justified in
four ways: the general power of trial courts to use its equity power when
no statutory relief is available, previous Washington courts have granted
custody to non-parents absent a showing of parental unfitness, Washington
legislative pronouncements have consistently applied a “best interest
of the child standard”, and the persuasive authority of other jurisdictions.
As a threshold matter then, each of these factors would need to be tailor
made for the case in question in order to persuade a court to even hear
an action in equity since no statutory relief is available.
Second, the substantive basis of such an action would have to be free of
the constitutional defects that were noticed by both the Washington State
and U.S. Supreme Courts. Another look at the relevant cases here
Troxel, Smith, In re Parentage of C.A.M.A., and
In re Parentage of L.B. reveals three basic problems with Washington’s approach to third
party visitation: (1) allowing “any” person at “any”
time to petition for visitation is overbroad and may lead to absurd results;
(2) allowing third parties to petition for visitation absent a showing
of harm to the child violates a fit parent’s fundamental right to
autonomy in parenting decisions; and (3) the statutes provided no presumption
in favor of a fit parent’s wishes.
Over broadness. A party seeking third party visitation in equity would have to establish
a substantial relationship with the child in order to avoid what courts
see as over broad language in the Washington statutes. In
Smith, the court noted that, “the statutes lack other safeguards to prevent
stable families from defending in court against frivolous petitions for
visitation. Most notably the statutes do not require the petitioner to
establish that he or she has a substantial relationship with the child.”
Smith, 137 Wn.2d at 20-21. Similarly, the U.S. Supreme Court noted, “[n]either
the Washington nonparental visitation statute generally which places no
limits on either the persons who may petition for visitation or the circumstances
in which such a petition may be granted nor the Superior Court in this
specific case required anything more.”
Troxel, 530 U.S. at 73. What courts seem to be worried about here are petitions
from nannies, teachers, parents of friends, etc., who may be able to show
that visitation with them would be in the best interests of the child,
thereby expanding state intrusion upon the parent-child relationship to
distinctively non-familial relationships. Of course, a non-relative could
easily have a sufficiently substantial relationship with a child, and
therefore courts are not too specific about the necessary relationship.
Indeed, Justice O’ Connor’s plurality opinion in
Troxel notes the changing definition of the American family, the fact that more
households are headed by single parents who then receive more help from
other family members, and the fact that many children already do live
with grandparents are reasons for enacting third party visitation statutes.
Id. at 63-64. The question is what the standard should be to overcome the
parent’s fundamental rights to regulate visitation with such persons.
Required showing of harm. A party seeking third party visitation in equity would have to show that
harm would come to the child if visitation between the child and the third
person does not occur in order to justify a court’s intervening
on a parent’s fundamental right to parenting decisions. “We
recognize that in certain circumstances where a child has enjoyed a substantial
relationship with a third person, arbitrarily depriving the child of the
relationship could cause severe psychological harm to the child. The difficulty,
however, is that such a standard is not required [by the statutes].”
Smith, 137 Wn.2d at 20. Furthermore, “[s]hort of preventing harm to the
child, the standard of ‘best interests of the child’ is insufficient
to serve as a compelling state interest overruling a parent’s fundamental
Id. Additionally, a showing by the petitioner that a substantial relationship
exists, while necessary, is not sufficient to meet the constitutional
standard, and demands a further showing of harm to the child if visitation
with the third party does not occur.
In re Parentage of C.A.M.A., 154 Wn.2d at 61.
Deference to a fit parent’s wishes. A party seeking third party visitation in equity would have to allow the
court to give proper deference to a fit parent’s wishes.
Troxel held that the parent’s rights in that case were unconstitutionally
infringed as applied because the trial court, reading the statute, presumed
that the third party would be entitled to visitation if it were in the
best interests of the child:
The problem here is not that the Washington Superior Court intervened,
but that when it did so, it gave no special weight at all to Granville’s
determination of her daughter’s best interests. More importantly,
it appears that the Superior Court applied exactly the opposite presumption…
The judge’s comments suggest that he presumed the grandparents’
request should be granted unless the children would be ‘impacted
adversely”… The judge reiterated moments later: ‘I
think [visitation with the Troxels] would be in the best interest of the
children and I haven’t been shown it is not in [the] best interest
of the children.
Troxel, 530 U.S. at 56.
Additionally, the Court found it significant in this case that the mother
(Granville) had agreed to visitation with the petitioners (Troxels), but
that the dispute was over how much visitation.
Id. at 71. In Justice O’ Connor’s mind, this was an unconstitutional
abrogation of the parent’s right to decide what was best for the
child, absent a showing of unfitness. This is further exemplified by the
fact that the Superior Court made only two “slender findings”,
each merely asserting that the children would benefit from visitation
with the grandparents.
Id. Finally, the
Smith court wrote,
“For the state to delegate to the parents the authority to raise
the child as the parents see fit, except when the state thinks another
choice would be better, is to give the parents no authority at all. ‘You
may do whatever you choose, so long as it is what I would choose also’
does not constitute a delegation of authority.”
Smith, 137 Wn.2d at 20.
Thus, not considering the choices made by a fit parent before ordering
third party visitation is tantamount to the state, through court intervention,
making a parenting decision for the parent, precisely the right protected
for the parent. While the courts have not been abundantly clear about
just what is the proper weight to be given, it is safe to say that a person
seeking such visitation in equity would have to include the wishes of
the parent in his claim. For instance, a parent who refuses to allow any
visitation may arguably be doing so unreasonably. Furthermore, a parent
who allows minimal or tightly controlled visitation may be shown to be
doing so for pretextual reasons related to a conflict between the parties
or the parent.
Question 3: Is there pending legislation in Washington to rewrite the third
party visitation statutes?
Yes. Senate Bill 5277 is currently in committee in the Senate, but did
not pass through committee in time for a possible vote this term.
Nevertheless, a quick look at what the bill proposes may be helpful in
handicapping how the law will evolve after
Troxel. Of course, this is only one proposal, and
one that seems to be having trouble at that.
Senate Bill 5277 (hereafter, the Bill) proposes new sections and rewrites
to RCW 26.10.160 and 26.09.240. The Bill first proposes a new section
to 26.10 that announces the “paramount right” of parents to
raise their minor children, but that this right must be “considered
in conjunction with a minor child’s interest in maintaining the
strong emotional bonds with others that the child have developed and relies
upon.” The Bill then proposes a new section which defines the key
terms “applicant”, “contact “, “harm”,
“nonparent”, “parent-like relationship”, and “substantially
interfered”. Under the new act, a non-parent seeking visitation
with a child must first establish standing. The standing requirements
are that the non-parent have a parent-like relationship with the child
for a substantial period of time, which means a “very significant
relationship” where the non-parent performed commonly recognized
responsibilities and actions that a parent would normally undertake, that
the parent consented to the formation of this parent like relationship,
that the relationship is beneficial to the child, and that the parent
is now “substantially interfering” with the non-parent/child
relationship and cannot be resolved outside of court. Furthermore, an
action for non-parental visitation may only be brought during a pending
dissolution or legal separation, but prior to the entry of a final parenting plan.
Once the applicant has standing to petition for visitation, he bears the
burden of providing evidence that a reasonable fact finder could conclude
that the child would very likely suffer harm if visitation between the
applicant and the child did no occur. The parent then has the opportunity
to rebut with evidence that shows that the decision to interfere with
the visitation was reasonable and in the child’s best interest.
The court shall order visitation if the applicant shows by “clear
and convincing evidence” that the child would very likely suffer
harm absent visitation, and that the parent’s denial of contact
was unreasonable and not in the child’s best interest.
Notices that each of the areas discussed in Question 2 above are addressed
by the new proposal: limitations on who may petition by requiring a “substantial
relationship”, a showing of harm to the child, and weight given
to the parent’s wishes. Other similar bills have been proposed during
the last five years and have not been passed.
- The court of appeals also held that RCW 26.10.160(3) could be constitutionally
applied to this case if the petitioner can show that the child would be
harmed by severing a relationship with the petitioner. As discussed above,
the Washington Supreme Court rejected this holding.
- Here the court cites In re Marriage of Allen, 28 Wn.App. 637, 626 P.2d
16 (Div. 3, 1981) (granting custody to a deaf child’s step mother
over the objection of the biological father, due to the former’s
especially effective parenting within a special context); and, In re Custody
of Stell, 56 Wn.App. 356, 783 P.2d 615 (Div. 1, 1989) (granting custody
to an aunt who had an especially close relationship to a child who especially
needed stability, pursuant to expert testimony).
- The test for de facto parentage in which the Washington Court adopts is
taken from this Wisconsin Court’s holding.