Grandparent Visitation & Custody Rights in Washington
From recent studies, we know there are many psychological and emotional benefits to both grandchildren and grandparents alike, when a healthy relationship is maintained from a child’s early years and beyond. Given the variety of family dynamics present today, we are seeing an increase of grandparents advocating to continue their relationships with their grandchildren through either a petition for visitation or custody.
Petitioning for Visitation
Typically, grandparents’ rights of visitation are sought after there has been a breakdown of the immediate family circle (divorce, separation, or death of one of the parents). There is usually a parent objecting to time spent with the grandchildren. As a result, the grandparent will need court intervention to establish visitation rights.
Applicable Washington Law
In a Washington landmark case that made its way into our United States Supreme Court, the Supreme Court upheld our state statute which allowed visitation if a court finds that visitation will serve the child’s best interests, with “special weight” given to a parent’s objections.
Although parents have constitutionally protected rights to the manner they raise their children, grandparents do have a right to establish visitation rights under RCW 26.11, which applies to non-parents related by blood or marriage.
When a parent objects to a grandparent or other non-parent’s petition for visitation, the Court presumes the non-parent’s reasons are made in the child’s best interests.
The grandparent then has the burden to prove by clear and convincing evidence:
- That they are entitled to petition for visitation rights as a “Relative” defined in RCW 26.11.010(2)(a)
- That they have an “ongoing & substantial relationship with the child” which means the relationship existed for at least two years (or at least half the child’s life if the child is under age 2), has involved interaction, companionship, mutuality of interest and affection, has been without expectation of financial compensation, and there has been a shared expectation of and desire for an ongoing relationship,
- That the child is likely to suffer harm or a substantial risk of harm if visitation is denied, and
- That visitation is in the child’s “best interests.”
When evaluating the child’s best interests, a court will consider 12 factors listed in the statute. A partial list includes:
- The strength of relationship the child has with the grandparent
- The grandparent’s relationship with each of the child’s parents
- The nature and reason for each parent’s objection to grandparent visitation
- The impact grandparent visitation will have on the child’s relationship with each parent
- The parents’ Parenting Plan in place
- Any past criminal record, history of physical, sexual, or emotional abuse or neglect by the grandparent, and
- Any other factor the court deems relevant
Petitioning for Custody
Today, the process in which grandparents may seek to establish custody over their grandchild is very different. A recent law from January 2021 mandates that grandparents must file a petition with the court to request appointment as the guardian for the child(ren). The requirements of what must be included in the petition to establish guardianship are described in RCW 11.130.190.
Applicable Washington Law
To succeed in a guardianship action, the applicable statute, RCW 11.130.185, requires proof of the following:
- The minor doesn’t already have a guardian,
- The guardianship is in the child’s best interest, and
- One of the following must be true: a) After being fully informed of the consequences of guardianship each parent gives their consent, b) all parental rights have been terminated, or c) Neither parent is willing or able to exercise the necessary parenting functions as described in RCW 26.09.004, as shown by clear and convincing evidence.
If the Court grants a guardianship petition, the parent’s contact with their children must be a priority of the Court to preserve, unless there is a valid reason the parent’s relationship should be restricted under RCW 26.09.191 (for example, findings of continued drug/alcohol abuse).
Ultimately the unique circumstances of your case will determine the frequency and amount of visitation the court orders, or whether custody is granted.
With the recent law enacted for grandparents to petition for guardianship and the high burden of proof for both custody and visitation, we recommend contacting an experienced family law attorney to chart a plan for how to best maintain your relationship with your grandchild(ren).