Non-Parental Custody

Over the last year, Judges and commissioners have been taking a closer look at Non-Parental Custody cases and applying a strict standard when determining if they should separate a child from their biological parents.  The standards in these cases reflect the constitutional right of parents to parent their own children without interference.  The Washington State Court of Appeals held that “Due process demands that a parent receive custody of a child unless the parent is unfit or custody of the parent would cause actual detriment to the child’s growth and development.” In re Custody of ALD, 191 Wash.App. 474 (2015).  Because of the constitutional rights involved, it can be difficult for a person without an attorney to know what those standards are and when the court is likely to act on the petition.

What is an “unfit” parent?

The court held that “a parent is unfit if he or she cannot meet a child’s basic needs.” In re Custody of B.M.H., 179 Wash.2d at 236, 315 P.3d 470 (2013).  RCW 26.44.010 provides some basic examples of unfitness;

  • Non-accidental injury
  • Neglect
  • Death
  • Sexual Abuse
  • Cruelty by Parents
  • Depriving a child of minimal nurture, health and safety.

This list is not the only conditions under which a parent can be found unfit, but provides a general idea of the types of conditions that should be present for a parent to be found unfit.

What is an “actual detriment” to a child’s growth and development?

When determining if there is actual detriment the courts have held the following;

“Whether placement with a parent will result in actual detriment to a child’s growth and development is a highly fact-specific inquiry, and precisely what might constitute actual detriment to outweigh parental rights must be determined on a case-by-case basis.  In Shields, we noted that when this heightened standard is properly applied, the requisite showing required by the nonparent is substantial and a nonparent will be able to meet this substantial standard in only ‘extraordinary circumstances’.”  Id., citing, In re Shields, 157 Wn.2d at 145.

Specific case examples of actual detriment begin found include the following;

  • A deaf child needed a caregiver who could effectively communicate with the child and the father was unable to do so, see Allen, 28 Wn. App. At 640-41,
  • A suicidal child that required extensive therapy and stability at a level the parents could not provide, see In re Custody of R.R.B., 108 Wn. App. 602, 31 P.3d 1212 (2001),
  • A child who had been physically and sexually abused required extensive therapy and stability at a level the parent could not provide, see In re Custody of Stell, 56 Wn. App. 356, 783 P.2d 615 (1989).

The court of appeals has routinely overturned trial court rulings in Non-Parental custody cases when the burden of proof regarding the fitness of the parents or actual detriment to the child has not been met.  Every case is unique due to the circumstances of the parents, child and person seeking custody.  Understanding when that burden will be met or when the courts will find insufficient evidence to interfere with the constitutional rights of a parent can be difficult to anticipate.  Anyone facing these issues should seek the guidance of an experience family law attorney.