Under certain circumstances grandparents and other relatives can seek custody or visitation rights, but should tread carefully before doing so as there is also great potential for making things worse and ending up with even less contact with the children than before.
The standards for custody and visitation are different, but in neither case are the relatives on equal footing with the parents. Under Washington law relatives are not entitled to custody or visitation without unusual circumstances.
How Can a Grandparent or Relative File for Custody or Visitation in Washington?
To file for custody, the grandparent or other family member must show either that the child is not living with a parent (for instance, the child has been living with the relative seeking custody), or that neither parent is a fit parent. Fitness is not an easy standard to overcome, there is a presumption that a parent is fit unless the court is convinced otherwise. Also, even under the living with the relative standard, the court will additionally evaluate whether the change of custody is in the child’s best interests, which will likely still involve assessing parental fitness.
To file for visitation, the relative has to show that they have a substantial relationship with the child, and that the child is likely to suffer harm if the visitation is denied. Also, there is a presumption in favor of following a fit parent’s choice to deny visitation.
What are Other Options Family Members Can Pursue?
The risk in filing such an action is that the parents will take it as a personal attack and retaliate by reducing or cutting off contact between the relative and child. At the very least, it is very likely to have a significant negative impact on the relative’s relationship with the parents.
Because of the high risk of both failing to prevail in the case, and of making things worth, we strongly encourage anyone facing these issues to first consider taking a non-litigation approach to working things out. This could start out as simple as asking the parents whether they would allow the child to live with or visit them. This could include asking whether they would to a legal agreement establishing the rights of all parties, which could be important for being able to deal with daycares, schools, and medical care providers.
If there is some willingness on the part of the parents to discuss arrangements, but coming to actual agreement on the terms of the arrangements is proving difficult, then it may be time to bring in outside help, such as a mediator or family therapist with experience in family legal matters (we can suggest names of people we work with), or even a collaborative team to work with the whole family.
Tips for Discussing Custody and Visitation
When approaching the parents for this kind of discussion, it is important to talk in terms of assisting them, rather than criticizing their parenting. Criticism of parenting will almost certainly cause them to feel attacked and to react defensively. This further decreases the odds of cooperation in working out solutions. It may also be important in custody cases to leave doors open to the parents having the children come back to them when their situation improves (granted that in some cases that may mean specifying that serious issues like addiction have been treated, with a period of sobriety afterwards). It is far less scary to parents to let their children go if it does not feel like it is necessarily permanent, that they still have some control to change the situation.
The discussion itself should revolve around developing mutually agreeable solutions to whatever the specific issues are. This means taking the time to genuinely listen to whatever concerns the parents have, so that those concerns can be addressed in any proposed solutions. Do not start out with a proposal at the start as that is by its nature one sided, the proposal needs to grow out of the discussion with input from all parties if it is going to be acceptable to all parties.
It is a very good idea to talk to a family law lawyer early in this process to make sure that you have a good understanding of the legal issues involved and to discuss how to approach the parents initially to best pave the way to voluntary agreement. If you would like to discuss possible custody or visitation arrangements with one of our family law lawyers, please call us at 206-784-3049, or use our contact form.