The Difficult Case of Non-Parental Visitation

In many circumstances, parents may not be best suited to have custody or full custody of their own child. In other circumstances, non-parental figures – grandparents, aunts, uncles, etc. – may have rights to visitation despite parental objections. However, under Washington law, these circumstances are unfortunately rare. Washington has specific law dealing with situations involving requests for non-parental visitation.

RCW Chapter 26.11 discusses petitions for relative visitation and the requirements for courts to grant relief to non-parents. Specifically, RCW 26.11.020 provides that a relative is entitled to visitation even if not a parent if specific circumstances are met. The individual must (1) have an ongoing and substantial relationship with the child, (2) be a relative of the child, and (3) prove that the child is likely to suffer harm or a substantial risk of harm if visitation is denied. It is this third requirement that proves to be the trickiest in cases of non-parental visitation.

Alternatively, in lieu of substantial harm, the person must have established an ongoing relationship with the child and sustained a relationship of interaction, companionship, and mutuality of interest with the child without expectation of financial compensation with substantial continuity for at least two years.

Under RCW 26.11.040, the court will consider several factors to make this determination. However, there is always a presumption that a fit parent’s decision is in the best interests of the child. In other words, unless the parent is unfit – for whatever reason – the courts will typically follow whatever the parent wants. Some factors the court will consider include:

• The love, affection, and strength of the current relationship between the child and the petitioner and how the relationship is beneficial to the child;
• The length and quality of the prior relationship between the child and the petitioner before the respondent denied visitation, including the role performed by the petitioner and the emotional ties that existed between the child and the petitioner;
• The relationship between the petitioner and the respondent;
• The love, affection, and strength of the current relationship between the child and the respondent;
• The nature and reason for the respondent's objection to granting the petitioner visitation;
• The effect that granting visitation will have on the relationship between the child and the respondent;
• The residential time-sharing arrangements between the parties having residential time with the child;
• The good faith of the petitioner and respondent;
• Any history of physical, emotional, or sexual abuse or neglect by the petitioner, or any history of physical, emotional, or sexual abuse or neglect by a person residing with the petitioner if visitation would involve contact between the child and the person with such history;
• The child's reasonable preference, if the court considers the child to be of sufficient age to express a preference;
• Any other factor relevant to the child's best interest; and
• The fact that the respondent has not lost his or her parental rights by being adjudicated as an unfit parent.

If you’re interested in obtaining visitation for a child that isn’t your own, call the experienced litigators at Magnuson Lowell PS. Our qualified attorneys offer complimentary telephone consultations to answer general questions and provide basic insight into your situation. Call Magnuson Lowell PS today at (425)885-7500 for a free case evaluation.

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