When is it Right to Take Custody of Someone Else’s Child?

                 Under Washington law, a person other than a parent (a non-parent) may petition for custody of a child “by filing a petition seeking custody of the child in the county where the child is permanently resident or where the child is found, but only if the child is not in the physical custody of one of its parents or if the petitioner alleges that neither parent is a suitable custodian.”

            The court has interpret this standard as meaning a court may award custody to a non-parent in an action against a parent only if the parent is unfit or if placement with an otherwise fit parent would cause actual detriment to the child’s growth and development. 

             Therefore, an “unsuitable” parent is one who is either “unfit” or poses an “actual detriment” to the growth and development of the children.     

            So what is an unfit parent?   It is a parent who cannot meet a child’s basic needs.  Examples of unfitness include the fault or omission by the parent seriously affecting the welfare of the child, preserving of the child’s right to freedom from harm, illness or death or the child’s right to an education. 

            Alternatively, the non-parent must show that the child will sustain an “actual detriment” to the child’s growth and development if she lives with her parent. This opens to the door to many possibilities.  There must be showing of actual detriment to the child, something greater than the comparative balancing analyses of the “best interests of the child” test.  Precisely what might outweigh parental rights must be determined on a case-by-case basis.  But unfitness of the parent need not be shown. 

            The child often has “special needs.”  For example, the child may be deaf or autistic.  The non-parent has often demonstrated a commitment to the child’s special needs that the parents have not demonstrated.  There is a close if not primary bond between the child and the non-parent.  Often, the child is or has been living in the non-parent’s house.  In these types of instances, too, the court, will often place the child in the care of the non-parent.

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