Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, August 11, 2006

Case Law Development: Third-Party Visitation in Washington State Survives Even Without Statutory Basis

The Washington Court of Appeals determines that, while Washington statutes no longer provide third-party visitation rights, right awarded under the statute prior to the Supreme Court's decision in Troxel could still be enforced.  In this case, step-father was awarded visitation with his stepdaughter in a 1998 parenting plan incorporated into a divorce decree.  When he sought to enforce those rights, the trial court ruled that he had no rights given a 2005 Washington Supreme Court opinion declaring that the third-party visitation statute was frought with too many constitutional problems to be enforceable without legislative action to correct its constitutional defects. (In re Parentage of C.A.M.A., 154 Wn.2d 52, 109 P.3d 405 (2005)).  The Court of Appeal reversed, holding that a retroactive application of the C.A.M.A. case was improper given the the US Supreme Court's had held that the statute was not per se unconstitutional. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).  Moreover, the court held that even if no third-party visitation rights existed under Washington statutes,  equity principles provided an alternative ground for enforcing the stepfather's visitation rights. "It is well recognized, both in Washington and nationally, that child custody and visitation orders may be established by reliance on courts' equity powers and the common law."   The court referenced a recent Washington Supreme Court statement that a child's "fundamental right to a stable and healthy family life . . . include[s] independently valued protections of a child's relationship with siblings and with adults other than his or her biological parents with whom the child has formed a critical bond." In re Custody of Shields, 157 Wn.2d 126, 2006 Wash. LEXIS 495, (Wash. June 2006) (Bridge, J., concurring).

Anderson v Anderson, 2006 Wash. App. LEXIS 1691 (Div 2 August 8, 2006)
Opinion on the web (last visited August 10, 2006 bgf)

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