Washington State has been at the forefront of third party and non-parental visitation and child custody disputes since 2000 when the United States Supreme Court held that the state's old laws regarding grandparent visitation were unconstitutional. Since then, third parties seeking to intervene in the custody of a child in Washington have faced an uphill battle, according to McKinley Irvin, a law firm in Seattle. But Washington law still allows anyone who is not a parent to file for custody of a child under certain circumstances.
Initiating Court Proceedings
Custody proceedings must be filed in the Superior Court in either the county where the child has been living or, in the case of an abandoned child, in the county where he was found. Under Subsection 26.10.030 of the Revised Code of Washington, such an action may only be initiated if the child is not living with either parent. If a child is living with a parent, then the third party seeking custody must prove that neither parent is fit to care for the child in order to start a legal action.
Motions for Custody
A petition for custody must be filed as a motion and must be accompanied by a sworn affidavit by the third party that the child is not living with a parent, or offering proof as to why both parents are unfit to care for him. The proof must show that circumstances exist in both parents' homes that would be harmful to the child's health and/or emotional development. The detrimental circumstances can be committed either by the parent or by another person who resides with the parent. Under RCW Subsection 26.10.032, a copy of these documents must then be given to both parents, any legal guardians the court might have named for the child, and even anyone who has court-appointed visitation rights with the child. Based on the affidavit, if a judge feels that the petitioner has a case, he will schedule a date for a hearing where the parents or any other interested parties can give testimony as to why they believe the petitioner should not be given custody.
Support and Visitation Provisions
If custody is granted to a third party after a hearing and testimony, a Nonparental Custody Decree will be issued by the court. Under RCW Subsection 26.10.040, the judge may then also order visitation for the parents as well as order one or both of them to pay child support on behalf of the child. Visitation is generally awarded unless the custodial petitioner has been able to prove that the parent abandoned the child or abused the child and continues to put him at risk.
Indian Child Welfare Act
Under the Indian Child Welfare Act, a federal law, custody of an Indian child cannot be granted by a state court without notice being given to an agent of the child's tribe, or the United States Secretary of the Interior if the tribe isn't known, in addition to the biological parent.