Third-party custody and visitation of children in a divorce

All parents want a loving atmosphere for their children. And typically, when there are more people to provide support for the children, the better. “Third-parties” such as grandparents, aunts, uncles, siblings, and even family friends (“fictive kin”) often take part in caring for a child by babysitting, or sometimes providing long-term care. However, in some situations, a parent might not be fit to parent their children.

In those cases, these third-parties may want to pursue “non-parental custody” of a child. These cases are difficult, as a parent’s right to exercise control over his or her child is protected under the United States Constitution. If a grandparent or other third-party wants to obtain legal custody of a child, then the third-party must prove that a parent is unfit, or that placing the child with the parent would be detrimental to the child’s growth and development.

Also, even if obtaining non-parental custody is not feasible, when the relationship between the parents and the non-parents falls apart, the non-parents can pursue court-ordered visitation. This is referred to as “third-party visitation.”

These types of cases most frequently arise in the form of grandparents seeking visitation with their grandchildren (although nothing prevents someone who is not a grandparent from seeking visitation). Under Washington law, a third-party may request visitation with a child in the event that the parents are divorced, separated, or in the process of a divorce.

In order to be successful in this request, the third-party must demonstrate  — among other factors — that he or she already has a significant relationship with the child. The trial court will consider a list of other items in determining whether visitation is in the child’s best interest, including the reasons the parents object to visitation, the relationship between the third-party and the parents, the strength of the relationship between the child and the third-party, and the visitation schedule in place between the two parents.

If the third-party proves all of the factors associated with third-party custody, then it is presumed that visitation would be in the child’s best interest. A parent may produce evidence to rebut this presumption, and demonstrate that visitation would endanger the child’s physical or emotional well-being.

A third-party should be cautious about when to bring such an action. For one, there is the potential of forever alienating the parents of the child. Also, if a third-party cannot successfully prove a pre-existing significant relationship with the child, the third-party may be ordered to pay the attorney’s fees incurred by the parents.

Third-party custody and visitation cases can be complicated and challenging, with the odds in favor of the parents, no matter how wonderful the relationship between the third-parties and children may be. We at The Levey Law Group have extensive experience helping both parents and third-parties in these types of disputes. Call us today at (253) 272-9459 to set up a consultation to discuss your case and your options.