Last Will involving child custody

[THXFelicia]

To original poster- I am in similiar situation, only it is the biofather who has had supervised visitation going on 6 years now. I want to keep it supervised, and am encouraged to hear you have kept it supervised for 7 years. Extended supervised visits are relatively rare--Did the mother ever petition the courts to end the supervision? Any information would be welcome.

 

[Becki C.]

THXFelicia:

no, the bio mother has never petitioned the courts to have the supervised visitation lifted. she told me as long as she gets to see them, even if it is supervised, she is not interested in having it changed.

 

[fried eggs]

There was a case recently in Washington State (Oregon was involved as well, but Washington retained jurisdiction) where the step-mother retained custody of the child after the father's death despite the biological mother fighting it in court. If I can find the reference in the next few days, I will post it for you.

 

[Bloomer]

Thank you fried eggs. I would appreciate reading the courts opinion and findings for that case.

 

[fried eggs]

Court of Appeals Division III
State of Washington

Opinion Information Sheet

Docket Number: 21741-8-III
Title of Case: In re the matter of Christian S.
Jenny Shields v. Susan Harwood
File Date: 02/12/2004


SOURCE OF APPEAL
----------------
Date first document (petition, etc) was filed in Court of Appeals: 01/21/2003


JUDGES
------
Authored by Frank L. Kurtz
Concurring: Stephen M Brown
Dissenting: Dennis J. Sweeney


COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Gary R. Stenzel
Gary R. Stenzel PS
910 N Washington Ste 201
Spokane, WA 99201

Counsel for Respondent(s)
Lee Russell Jr McGuire
Attorney at Law
PO Box 249
Davenport, WA 99122-0249

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re the Custody of: ) No. 21741-8-III
Christian William Shields, )
)
JENNY SHIELDS, ) Division Three
) Panel Eight
Respondent, )
) PUBLISHED OPINION
and )
)
SUSAN HARWOOD, )
)
Appellant. )

KURTZ, J.--Chris Shields is the only child of Michael Shields and
Susan Harwood who divorced when Chris was three years old. Under the
parenting plan, Chris was placed with his father by agreement of the
parties and his mother was granted liberal visitation rights. When Chris
was five years old, his mother moved to Oregon and his father remarried.
Mr. Shields later adopted his wife's daughter, and the couple had a child
of their own. When Chris was 11 years old, Mr. Shields died as the result
of an accident. Upon learning of Mr. Shields's death, Ms. Harwood informed
the Shields family that she would be taking Chris back to Oregon; Ms.
Harwood, accompanied by a sheriff's deputy, took Chris from the Shields
home the day after his father's funeral. Four days later, Ms. Shields
filed this nonparent custody action. After a trial, the court granted
custody of Chris to Ms. Shields and reinstated Ms. Harwood's visitation
rights under the parenting plan.
Under RCW 26.10.030, a nonparent may commence an action seeking custody of
a child '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 issue before us is the appropriate standard to be applied
in custody litigation involving a parent and a nonparent. We hold the
appropriate standard is parental unfitness or detriment to the child as
stated in In re Marriage of Allen, 28 Wn. App. 637, 646-47, 626 P.2d 16
(1981). We further hold RCW 26.10.030 does not impose a standing
requirement that mandates the court to enter a finding of parental
unfitness before the case can proceed. Affirming the judgment of the trial
court, we hold the trial court did not err by awarding custody of Chris to
his stepmother.
FACTS

 

[fried eggs]

Chris Shields is the only child of Michael Shields and Susan Harwood.
Chris's parents were married in 1989. Chris was born on November 14, 1990;
his parents divorced in September 1994, when Chris was three years old.
Under the parenting plan, Chris was placed with his father as the primary
residential parent by agreement of the parties. His mother was granted
liberal visitation.
In May 1995, Michael Shields and Jenny Wisecarver began dating. They were
married in July 1996, when Chris was five years old. Ms. Shields had a
daughter, Lea, who was eight years old at the time of the marriage. The
next year, Mr. Shields adopted Lea. Two years later, Michael and Jenny had
a son, Michael.
In 1996, Susan moved to Willamina, Oregon. She married Curt Harwood in
January 1997. A new parenting plan was entered a few months later. Under
the second plan, Susan's visitation was reduced from two full weeks each
month to one weekend each month and changes were made in the Christmas
schedule and the summer schedule. The court also entered an order of child
support. The net support obligation of $112.20 was reduced to $25 per
month in light of Susan's financial situation. From 1994 until this order
was entered in May 1997, Susan did not make child support payments or
contribute to Chris's expenses. Moreover, at the hearing she expressed
dissatisfaction with the court's decision to set the amount at $25 per
month.
Mr. Shields died as the result of an accident in August 2001, when Chris
was 11 years old. At the time of his father's death, Chris had lived in
the same house since 1991. This house was on a farm outside Lamont,
Washington. The trial court later found that Chris 'had extremely close
ties with his extended family, neighbors and friends in the Lamont area his
entire life.' Clerk's Papers (CP) at 236.
Ms. Harwood had not been involved with Chris's daily rearing. Her
visitation became sporadic soon after the couple divorced and telephone
contact was irregular with long periods of time between contacts. At
trial, Ms. Harwood estimated that she took advantage of 15 percent of the
weekend visitations, but, with one exception, 100 percent of the major
visitation weeks available during summer, spring break, and Christmas.
However, during this time she had never asked for, or seen, Chris's report
cards; she had attended one of Chris's teacher conferences, one of his ball
games, and one of his concerts.
When Ms. Harwood learned of Mr. Shields's death, she immediately contacted
the Shields family, asked them to pack Chris's belongings, and notified
them that she intended to pick up Chris immediately and take him to Oregon.
Ms. Harwood was eventually persuaded to wait a few days until after the
memorial service so that Chris would be able to attend the service. One
day after the memorial service, Ms. Harwood arrived to take Chris to
Oregon. A deputy sheriff was present at Ms. Harwood's request, further
traumatizing Chris. Chris did not want to go with Ms. Harwood, but was
persuaded that he should go.
Five days after the funeral, four days after Chris left for Oregon, Ms.
Shields filed this action, petitioning for nonparent custody of Chris.
Contrary to the assertions of Ms. Harwood, Ms. Shields did not wait until
spring 2001 to file her petition. The court appointed Dennis Cronin as
Guardian Ad Litem (GAL) and later entered an order clarifying the duties of
the GAL.1
Prior to Mr. Shields's funeral, Ms. Shields took Chris to a grief
counseling session with Dr. Frank Hamilton in Spokane. Dr. Hamilton also
saw Chris in February and March 2002. Dr. Hamilton concluded that Chris
was emotionally close to his stepmother and that there was a strong bond
between them. Dr. Hamilton also noted that Chris considers his home to be
in Lamont, Washington, and that his family consists of his stepmother and
his two siblings. Dr. Hamilton concluded that these bonds were stronger
than Chris's bonds to his mother.
Approximately six weeks after his moving to Oregon, Chris met with a social
worker, Jeri Merkle. Ms. Merkle spent 31 hours with Chris over a 14-month
period. Sixteen of those hours were sessions with Chris or various
combinations of Chris, his
mother, and his stepfather. The remaining sessions were with another
person through the Mother Oaks treatment program.
Ms. Harwood took Chris to Oregon in August 2001. Chris had no personal
contact with his stepmother or his siblings from September 2001 until April
2002. During December, Ms. Harwood restricted Chris's telephone contact
with his family in Lamont.
Trial in this matter was held in November 2002 at which time the court was
presented with the testimony of Ms. Shields, Ms. Harwood, Mr. Harwood, Mr.
Cronin, and Ms. Merkel. The court also interviewed Chris in chambers.
In his testimony, Mr. Cronin stated Chris was strongly bonded to Ms.
Shields as his primary psychological parent and, by contrast, he perceived
Ms. Harwood as 'uncaring for his needs, unfair, hostile to his family in
Washington, cruel, and punitive.' CP at 207. Mr. Cronin also reported
that Chris considered his true home to be Lamont, Washington, and his
family unit as comprising of his stepmother, his half brother, and his half
sister. Mr. Cronin noted that while Chris did not dislike Ms. Harwood, he
was very frustrated by her perceived failure to appreciate his needs and
desires. Mr. Cronin concluded that Chris strongly desired to reside in
Washington with his stepmother and siblings.
Furthermore, Mr. Cronin expressed surprise that, when he met with Chris in
January 2002, Chris had not had any physical contact with Ms. Shields and
his siblings since August 2001. Chris told Mr. Cronin that Ms. Harwood had
taken away all telephone contact with his relatives in Washington for the
month of December. Mr. Cronin concluded that Ms. Harwood had arbitrarily
restricted contact between Chris and his stepmother and siblings. In his
report, Mr. Cronin also noted that Dr. Hamilton expressed concern that
Chris, as he entered adolescence, would be more likely to act out in anger
and frustration in the home in Oregon as opposed to the home in Washington.
At trial, Mr. Cronin testified that both he and Dr. Hamilton felt that
actual detriment would occur if Chris was required to live away from his
psychological parent, Ms. Shields, and his siblings. Mr. Cronin
recommended that Chris be allowed to reside with his stepmother and
siblings in Washington with reasonable visitation with his mother and
stepfather in Oregon.
Ms. Merkle testified that she met with Chris from September 2001 until June
2002. She further stated that the sessions were cancelled after Chris
returned from his visitation to Washington because 'things were going along
well.' Report of Proceedings (RP) at 146. Ms. Merkel had another session
with Chris shortly before the trial because he had a 'slump' that she
attributed to the court case. RP at 154.
Ms. Merkle testified that when she first met Chris, he held his mother in
disdain. Ms. Merkle stated that while Chris was adamant then that he did
not want to be with his mother, this feeling had diminished over time. She
believed Chris was now beginning to view Oregon as his home and, if asked
for a decision about where he wanted to live, he would now respond that he
did not know. According to Ms. Merkle, Chris had made progress during the
year he had resided in Oregon. She saw evidence that he had progressed to
the point where he was able to formulate a life of his own.
Although Ms. Merkle met with Chris for 16 sessions, Chris never mentioned
his siblings to her. Ms. Merkle attributed this omission to the fact that
issues concerning his family constellation were overwhelming to him. Ms.
Merkle noted that Chris had an emotional attachment with his stepmother and
that he talked about her in a way of 'close emotional attachment.' RP at
126. Ms. Merkle encouraged Ms. Harwood to keep the channels of
communication open between Chris and his Washington family. However, Ms.
Merkle acknowledged that physical visitation did not happen for some time
and that Ms. Harwood made 'not the best choice' by grounding Chris from the
use of the phone. RP at 143.
Ms. Merkel testified as to her impression that Chris was 'incredibly bonded
and attached to his father' and that he perceived his father as a 'hero.'
RP at 92, 110. She explained that Chris would have a 'tremendous
confrontation of disillusionment' when he was finally confronted with the
circumstances of his father's death. RP at 111. According to Ms. Merkel,
this confrontation would probably occur in mid-adolescence and would affect
his development. Ms. Merkel believes that this process is going to be
'horrendous' for Chris depending on his age and the stage of his
developmental process when this confrontation occurred. RP at 112.
According to Ms. Merkle, there might be 'issues' if Chris lived with his
stepmother in Washington. RP at 137. Specifically, Ms. Merkle expressed
concerns about parental alienation, emotional enmeshment, bereavement
issues, and problems Chris might have being a middle child with a sibling
who is the namesake child. Although Ms. Merkle testified at length about
parental alienation, she conceded in cross-examination that she could not
say that parental alienation existed here.
Ms. Harwood testified that she always intended for Chris to attend his
father's funeral. Ms. Harwood also testified that she never grounded Chris
from contacting his stepmother but that she did ground him from using the
phone. She found it 'obnoxious' that when Chris was first with her, he
raced her to the phone and would try to pull it away from her. RP at 218.

 

[fried eggs]

As she explained:

It's pretty pathetic, when every time the phone rang, after he was first
there, that he would race you to it, because he always knew it would be for
him, whether it was for somebody else. He would ignore the beep, because
we have call waiting. If I had a phone call come in, he would say, 'Well,
I'll have you call her back,' while he--while he used the phone.

RP at 218. When Ms. Harwood reported this behavior to Ms. Merkle, Ms.
Merkle suggested that Ms. Harwood should not keep Chris from contacting his
relatives in Washington. Ms. Harwood testified that she had not thought
about this when she grounded Chris from use of the phone. During this
time, Ms. Harwood did permit Chris to use e-mail.
Ms. Harwood felt that Chris had done well during the period he spent at her
house even though he had experienced 'ups and downs.' RP at 215. Ms.
Harwood found Chris to be 'kind of clingy' when he first arrived at her
house and that he was 'still clingy.' RP at 227. However, she pointed out
that Chris had been elected class president, that he was doing fairly well
in school, and that he was in a program for the talented and gifted. Ms.
Harwood believed that Chris's difficult times coincided with telephone
calls from Washington relatives.
The trial court interviewed Chris in chambers.2 Chris told the court that
while things were 'okay'3 and going better in Oregon, he wanted to go
'home' to Lamont, where his brother and sister lived. ICRP at 9. The
court questioned Chris to determine whether Chris wanted to go to Lamont
because he thought he needed to help his stepmother. Chris responded that
he wanted to go back 'because that's where it feels like home.' ICRP at
13.
Chris told the court that his stepmother was 'like my mom,' and that he got
along better with his stepmother than his mother because they had been
together longer.
ICRP at 13. Chris acknowledged that he called both his mother and his
stepmother 'Mom.' ICRP at 15. When asked what he would do if he went back
to Lamont, Chris stated: 'I would probably go to school at Lamont, and I
would help my mom, and I--would--I would really help out on the farm, and--
I would be really happy.' ICRP at 15. Chris told the court that if he
went back to Lamont he would like to have visitation with his mother
'{j}ust as it was before.' ICRP at 24. The court emphasized the impact of
this interview, noting the boy's demeanor and body language.
On December 28, 2002, the court entered a lengthy memorandum opinion,
followed later by a nonparent custody decree. The court granted custody of
Chris to Ms. Shields and ordered that visitation should continue in
accordance with the prior parenting plan. The court concluded that Ms.
Shields was still Chris's primary psychological parent and that, despite
living with his mother for over a year, Chris was not strongly bonded to
his mother, but remained strongly bonded to his stepmother and his siblings-
-and that it was 'highly doubtful this situation will change.' CP at 242.
The court expressed grave concern over Ms. Harwood's conduct following Mr.
Shields's death and her arbitrary restriction of Chris's contact with his
family in Lamont, despite contrary advice from Chris's counselors. The
court repeated Ms. Merkle's concern that Chris would eventually have
problems dealing with his father's death. The court noted that Chris had
reported to the GAL that Ms. Harwood and her mother speak ill of his
deceased father and his stepmother and that, on at least one occasion,
Chris hid in a closet to avoid hearing the criticism. The court stated:
'Based upon {Ms. Harwood's} conduct and that of her mother as reported by
Chris to the guardian ad litem, the Court is much more concerned that this
information will be presented to Chris in an inappropriate way thus causing
more harm to him.' CP at 238.
In a similar vein, the court questioned Ms. Harwood's conduct following Mr.
Shields's death, particularly her arbitrary restriction of Chris's contact
with Ms. Shields and his siblings, despite contrary advice from Chris's
counselors. The court noted that the GAL's conclusion that the manner in
which Chris was removed from the house after his father's death was
'psychologically and emotionally abusive'4 and that the separation of Chris
from his siblings and stepmother over the following Thanksgiving and
Christmas ''was a most difficult continuation of the abuse.'' CP at 241.
And, the court noted the GAL's conclusion regarding Ms. Harwood's
''complete failure at such a critical time to put her needs second to those
of her son.'' CP at 241. Overall, the trial court found that Ms. Harwood
treated Chris 'more as an object to be possessed than a person who has
desires and needs which must be dealt with.' CP at 241. While the court
concluded that Ms. Harwood was 'not unfit in the usual sense,' the court
noted that Ms. Harwood had 'certain unfit characteristics which in the
GAL's estimation makes her unfit for placement consideration.' CP at 247.
The court concluded that the psychological relationship between Chris, his
stepmother, and his siblings was the factual equivalent of a natural family
entity. The court noted that both Dr. Hamilton and the GAL concluded that
breaking up this family by allowing Chris to remain in Oregon 'is presently
causing and will continue to cause actual detriment to Chris which will
adversely affect his growth and development.'
CP at 241. The court also concluded that '{t}he overwhelming weight of
evidence suggests that Chris' mental health and his future development in
adolescence is at risk if he remains in Oregon.' CP at 246-47. The court
also concluded that Chris had rights of association and that he was of
sufficient age and maturity to express a preference as to his placement.
Ms. Harwood appeals, contending that the court erred by (1) permitting the
case to proceed absent a finding that she was unfit, (2) applying a best
interests standard or a detriment to the child standard, (3) awarding
custody based on Chris's wishes and/or an assessment of the 'totality of
the circumstances,' (4) granting custody based on a New York case
recognizing a constitutional right of a child to association with a person
with whom the child had developed a parent-like relationship, and (5)
finding sufficient evidence to support a showing of detriment to Chris if
he remained with his mother and was separated from his psychological parent
and his de facto family in Washington. The commissioner granted
accelerated review.

ANALYSIS

Standard of Review. A trial court's custody disposition will not be
disturbed on appeal absent a manifest abuse of discretion. Schuster v.
Schuster, 90 Wn.2d 626, 632, 585 P.2d 130 (1978). 'A trial court abuses
its discretion when its decision is manifestly unreasonable or based on
untenable grounds.' In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d
629 (1993). This court reviews a trial court's findings of fact to
determine whether they are supported by substantial evidence. In re
Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993).
What standard applies in a nonparent custody action under chapter 26.10 RCW
when the court is asked to determine custody as between a parent and a
nonparent?

 

[fried eggs]

A parent's right to rear his or her children without state interference has
been viewed as a fundamental liberty interest protected by the Fourteenth
Amendment and a fundamental right derived from privacy rights inherent in
the constitution. In re Custody of Smith, 137 Wn.2d 1, 15, 969 P.2d 21
(1998), aff'd sub nom., Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054,
147 L. Ed. 2d 49 (2000). Accordingly, state interference with this
fundamental right is not permitted unless the state demonstrates both a
compelling interest and narrowly tailors the interference to meet only that
interest. Id.

This is a nonparent custody proceeding under chapter 26.10 RCW.
Prior to 1987, parent and nonparent custody actions were governed by
chapter 26.09 RCW, which required courts to determine custody based on the
best interests of the child. Former RCW 26.09.190 (1973). However, courts
determining nonparent custody cases were reluctant to apply the best
interests standard when determining custody as between a parent and a
nonparent. See In re Marriage of Allen, 28 Wn. App. 637, 626 P.2d 16
(1981).
The Allen court concluded that courts determining custody between a
parent and nonparent must apply a more stringent balancing test to protect
both the parents' constitutional rights to privacy and the family entity.
Id. at 645-46. Allen held that the state may interfere with the parents'
constitutional rights only if (1) the parent was unfit, or (2) 'the child's
growth and development would be detrimentally affected by placement with an
otherwise fit parent.' Id. at 647. Significantly, the Allen court
proposed the detriment to the child standard as a 'middle ground' requiring
a showing more than best interests, but less than parental unfitness. Id.
at 649. The Allen court concluded that a finding of unfitness was not
required in a nonparent custody proceeding because the neglect and
termination provisions served a different purpose and resulted in the
drastic consequence of depriving the parent of all rights to the child.
Id.
In 1987, the Washington legislature adopted chapter 26.10 RCW, which deals
exclusively with nonparent custody actions. Under RCW 26.10.100, the
courts are required to 'determine custody in accordance with the best
interests of the child.' However, the legislature's purpose in adopting
chapter 26.10 RCW was 'to reenact and continue the law relating to third-
party actions involving custody of minor children.' RCW 26.10.010. As a
result, the court in In re Custody of Stell, 56 Wn. App. 356, 365, 783 P.2d
615 (1989) held that the legislature, in adopting chapter 26.10 RCW,
intended to incorporate Allen's judicial interpretation of the earlier
statute. Like Allen, Stell determined that in a custody proceeding between
a parent and a nonparent, the nonparent must show that the parents are
unfit or that placement with an otherwise fit parent would detrimentally
affect the child's growth and development. Stell, 56 Wn. App. at 365.
In a recent nonparent custody case, In re Custody of R.R.B., 108 Wn. App.
602, 31 P.3d 1212 (2001), Division Two considered the constitutionality of
the best interests standard set forth in RCW 26.10.100. In R.R.B., the
trial court granted a nonparent custody concluding that while the parents
were fit, placing R.R.B. in their custody would detrimentally affect her
growth and development. Id. at 606. In upholding the court's decision,
the R.R.B. court was guided by the Supreme Court's reasoning in Smith and
Troxel.
In Smith, the court decided Washington's nonparent visitation statutes were
unconstitutional because the statutes impermissibly interfered with a
parent's fundamental rights by authorizing the court to grant third party
visitation after a determination that such visitation was in the best
interests of the child. The nonparent visitation statutes were
unconstitutional, the court reasoned, because the statutes lacked a
threshold requirement of a finding of harm to the child if the third party
visitation was not permitted. Smith, 137 Wn.2d at 20-21. The United
States Supreme Court affirmed, with a plurality of the court concluding,
that the Washington nonparent visitation statute was unconstitutional as
applied because the trial court failed to presume that the mother was a fit
parent and that she acted in her children's best interests. Troxel, 530
U.S. at 68.
In examining the constitutionality of the nonparent custody statute, the
R.R.B. court examined Smith, Troxel, Allen, and Stell. The court noted
that Washington courts have consistently applied Allen's two-part test in
nonparent custody cases. Hence, the court in R.R.B. concluded that RCW
26.10.100 was constitutional as construed because the two-part Allen
standard recognizes the presumption that a fit parent will act in the best
interests of his or her child. R.R.B., 108 Wn. App. at 614-15.
Significantly, the court in R.R.B. concluded that this statute is not
facially unconstitutional because the statute 'recognizes the presumption
of parental fitness, and the remedy is narrowly tailored to further the
state's interest,' which the court identified as 'protecting children's
welfare.' Id. at 615. Finally, the court also determined that the statute
was not unconstitutional as applied because the evidence supported the
trial court's determination that R.R.B.'s growth and development would be
detrimentally affected by placement with her parents. Id. at 615.
In summary, we reaffirm our agreement with Allen which concluded that
'where placing the child with an otherwise fit parent would be detrimental
to the child, the parent's right to custody is outweighed by the State's
interest in the child's welfare.' Allen, 28 Wn. App. at 649. Allen
considered the detriment standard to be a 'middle ground' requiring a
showing more than best interests, but less than parental unfitness.
Id. Nevertheless, the requisite showing under Allen is substantial. While
the detriment standard does not require a showing of parental unfitness, it
does require a showing of actual detriment to the child's growth and
development.
The detriment standard evolved in the nonparent custody context because
this standard accomplishes the balancing that must occur in this setting.
'{I}n a nonparental custody proceeding, the child's safety, welfare, growth
or development is always at issue; otherwise, there is no basis for
awarding custody to a nonparent.' R.R.B., 108 Wn. App. at 616. In
nonparent custody cases, a standard must be applied that balances the
interests of the state in protecting the child with the important privacy
interests of the parents.
We agree with R.R.B. that in custody proceedings between a parent and a
nonparent
RCW 26.10.100 and Allen recognize the presumption of parental fitness,
while providing a remedy narrowly tailored to further the state's interest
in protecting children's welfare. See R.R.B., 108 Wn. App. at 615.
Does the Nunn case impose a standing requirement that precluded the court
from awarding custody to Ms. Harwood?

Under RCW 26.10.030,5 a nonparent may commence an action seeking custody of
a child '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.' (Emphasis added.) Relying on In re Custody of Nunn, 103 Wn.
App. 871, 14 P.3d 175 (2000), Ms. Harwood contends that RCW 26.10.030
imposes a standing requirement that mandates dismissal of a nonparent
custody petition in the absence of substantial evidence that the parent is
unfit. In other words, Ms. Harwood contends that Nunn establishes that a
nonparent lacks standing to petition for custody against a fit parent who
has physical custody of the child.
In Nunn, the child's aunt sought nonparent custody as against the
child's mother. The parents had divorced and the parenting plan regarding
their son Chance granted both parents legal custody, but the plan granted
residential time disproportionately to the father and gave him the
discretion to require the mother's time to be supervised due to her
drinking problem. Several years after the parenting plan was entered, the
mother completed a treatment plan and, at the time of trial, had remained
sober for five years. From 1988 until 1991, the father's sister
occasionally cared for Chance and this aunt moved into the father's house
one month before he died of leukemia. Nunn, 103 Wn. App. at 874-75.

 

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Two days before the father died, the aunt filed a nonparent custody
proceeding alleging that the mother was unfit because she was a severe
alcoholic who continued to abuse alcohol and who also worked as a
prostitute. The court granted temporary custody to the aunt while the GAL
completed his report. The GAL's report concluded that the aunt was the
more stable of the caretakers, but that the mother and son had a bonded
relationship and that the son consistently expressed his desire to live
with his mother. The GAL also reported that the mother's psychotherapist
stated that the mother worked hard to address her problems and that she was
competent to care for Chance. Likewise, the son's psychotherapist reported
that there was a strong bond between mother and son and, at this point in
the son's development, that bond likely outweighed any of the mother's
probable deficits as a parent. Id. at 876. The GAL recommended that the
mother be granted temporary custody of Chance pending the entry of a
permanent parenting plan. Id.
Based on the GAL's recommendation, the court returned Chance to his
mother until the trial. At trial, the court found that the mother was an
unsuitable custodian because she was unfit. Significantly, the aunt
admitted at trial that when she filed the nonparent custody petition
alleging that the mother was unfit, the aunt had no idea that the mother
had successfully completed a treatment plan and had been sober for five
years. Id. at 879-80.
The Nunn court reversed the custody order and returned Chance to his
mother's custody without restrictions. Id. at 888. In making this
decision, the court framed the issue as one of standing. The court stated
that 'a threshold inquiry for any nonparental child custody action under
Ch. 26.10 RCW is whether the nonparent petitioner has standing to bring the
action, that is, whether the nonparent petitioner can produce substantial
evidence to support the allegation of parental unfitness by which he or she
gained entry to the courthouse in order to file the petition.' Id. at 883.
The court concluded: 'Without substantial evidence of parental unfitness, a
nonparent petitioner lacks standing to bring the action, and it should be
dismissed.' Id.
We believe the holding in Nunn is limited. The case arose from
unfounded allegations of parental unfitness that commenced a process that
intruded on the integrity of the family unit. In the words of the court,
'There can be no other conclusion from the evidence in this record but that
Lauren Arneson lost custody of her child because she tried to defend the
integrity of her family unit against State intervention that was unfounded
in the first place because it was based on a petition containing
allegations of parental unfitness that ultimately proved to be false.'
Nunn, 103 Wn. App. at 888. As a result, the Nunn court described its
standing requirement in terms of unfitness, not detriment. Significantly,
the Nunn court relied on In re Marriage of Allen, 28 Wn. App. 637, 626 P.2d
16 (1981), but did not address the detriment standard.
We further note that a reading of the statute does not support the
standing requirement purportedly enunciated in Nunn. Under RCW 26.10.030,
a nonparent may commence an action seeking custody of a child '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.' (Emphasis
added.) The statute requires that the petitioner allege that the parent is
not a 'suitable custodian,' a term that encompasses an inquiry into either
unfitness or detriment. Simply put, the language in the statute does not
require proof of unfitness or imply that allegations based on the detriment
standard are insufficient to establish standing.
In conclusion, we hold a nonparent can establish standing against a
parent who has physical custody of the child without demonstrating that the
parent is unfit. Here, the trial court's finding that Ms. Harwood was 'not
unfit in the usual sense'6 did not deprive Ms. Shields of standing to bring
this nonparent custody action.
Did the court here err by awarding custody of Chris to his stepmother?
The trial court made several findings to support its decision to award
custody to Chris's stepmother. The court concluded that while Ms. Harwood
was 'not unfit in the usual sense,' and noted that the GAL asserted that
'she has certain unfit characteristics which in the GAL's estimation makes
her unfit for placement consideration.' CP at 247. The court also
discussed the concept of de facto family and concluded that here, as in
Allen, the child was so well integrated into the nonparent's family as to
constitute an established fact. The court also concluded that Ms. Shields
'was and still is Chris' psychological parent' and that 'the psychological
relationship between {Ms. Shields}, her family, and Chris, is equivalent to
that of a natural family entity.' CP at 247.
Of greatest significance, the court made determinations as to
detriment to Chris. The court concluded that: 'The overwhelming weight of
evidence suggests that Chris' mental health and his future development in
adolescence is at risk if he remains in Oregon. On the contrary, the
evidence suggests that his mental health will prosper if he is returned to
Lamont.' CP at 246-47. The court concluded that it would be detrimental
to Chris's well-being to be separated from his siblings and that the
reasons for separating Chris from his siblings did not 'appear to be
compelling in light of the totality of the circumstances.' CP at 248. The
court concluded that 'there has been a showing of actual detriment to Chris
should he be allowed to continue to reside in Oregon in a situation which
is, in effect, against his will.' CP at 248. And that '{t}he totality of
the circumstances dictate that Chris should be returned to his de facto
family.' CP at 248.

 

[fried eggs]

Ms. Harwood first contends that the court incorrectly applied the best
interests standard when making its decision to grant custody to a
nonparent. Ms. Harwood is mistaken. Although the court briefly addressed
the best interests standard, the court applied the Allen standard.
Ms. Harwood next argues that Allen is distinguishable based upon the
following factual differences. First, Allen involved a custody dispute
between the stepmother and the father that took place during a dissolution
proceeding. Second, the child was living with the stepmother when she
commenced the action. Third, the child was disabled. Finally, the
stepmother had provided a therapeutic environment for him. Despite these
factual distinctions, we are persuaded by the Allen court's decision.
In Allen, the stepmother petitioned for custody of Joshua, her husband's
child from an earlier marriage. Joshua was with the stepmother when she
filed the petition and remained with her during the pendency of the action,
including the appeal. Allen, 28 Wn. App. at 640. Joshua was deaf and, at
age three, his intellectual functioning was already lagging, when the
stepmother entered his life. Over the next four years, the stepmother
helped Joshua learn sign language, took special classes herself, had her
own three children learn sign language, and worked diligently to see that
Joshua received special training. At the time of trial, Joshua was
functioning at a level of intellectual development equivalent to that of
hearing children his age. Id. at 641.
The Allen court established that parental rights may be outweighed where
the parent is found to be unfit or where 'circumstances are such that the
child's growth and development would be detrimentally affected by placement
with an otherwise fit parent.' Id. at 647. The Allen court then affirmed
the award of custody to the nonparent on two grounds. First, the court
concluded that there was evidence to support the trial court's conclusion
that Joshua's future would be detrimentally affected by placement with his
father whose sign language capability was inadequate. Id. Second, the
court determined that Joshua had become integrated into the nonparent's
family and that the de facto family relationship did not include the
father. Id. at 648. The court also found that there was a psychological
relationship between the stepmother, her family, and Joshua that was the
equivalent of a natural family. Id.
Ms. Harwood's attempts to limit the court's holding miss the mark. First,
the fact that the nonparent custody action in Allen was litigated as part
of a divorce proceeding has no affect on the standard applied by the court.
Second, the fact that Joshua was living in the stepmother's home during the
pendency of the action was not mentioned or considered by the court.
Third, the fact that Joshua was deaf clearly affected the court's
determination that placement with the father would be detrimental, but was
not specifically mentioned in the court's discussion of the existence of a
'de facto' family and the psychological relationship that had formed
between the stepmother, her family, and Joshua. In other words, nothing in
the Allen court's decision attempts to limit the application of these
concepts to nonparent custody actions involving the disabled. In fact, to
the contrary, the court concluded that custody may lie with a nonparent
where a child is integrated into the nonparent's family and the de facto
family relationship does not include the biological parent. Id. at 648.
In addition to her arguments related directly to the application of the
Allen decision, Ms. Harwood also contends that the trial court failed to
apply the proper standard because the court based its decision primarily on
Chris's wishes, an assessment of the 'totality of the circumstances,' and
the application of a New York case--Webster v. Ryan, 189 Misc. 2d 86, 729
N.Y.S.2d 315 (2001). We shall address these arguments in turn, but this
discussion will take us back to Allen.
To support her argument that the trial court based its decision primarily
on Chris's wishes, Ms. Harwood points to the court's statement that 'the
Court has determined that there has been a showing of actual detriment to
Chris should he be allowed to continue to reside in Oregon in a situation
which is, in effect, against his will.' CP at 248.
Did the court base its decision primarily on Chris's wishes? No, this
statement has been taken out of context. In conducting its inquiry into
the question of detriment, the court had to examine the extent of Chris's
psychological bond to his mother and his stepmother, and Chris's feelings
about his two families and the two home environments. In making its
decision, the trial court carefully examined the evidence and applied the
Allen standard; the court's decision was not based solely on a
determination of which house 12-year-old Chris liked better.
Ms. Harwood also contends that the court applied a 'totality of the
circumstances' standard that, like the 'best interests' standard, is
improper in a nonparent custody action. This argument is without merit.
Certainly, when the court stated that the 'totality of the circumstances
dictate that Chris should be returned to his de facto family,'7 the court
was not applying a new standard, but, rather was summarizing the reasons
for the court's decision under the Allen standard. The need for a careful
case-by-case examination of all of the relevant facts was recognized in In
re Marriage of Allen, 28 Wn. App. 637, 626 P.2d 16 (1981). When discussing
the showing required to meet the detriment standard, the Allen court
explained: 'Precisely what might outweigh parental rights must be
determined on a case-by-case basis. But unfitness of the parent need not
be shown.' Allen, 28 Wn. App. at 649.
Additionally, Ms. Harwood contends that the trial court based its decision
on Webster and the mistaken belief that Webster stood for the proposition
that a child has a constitutional right to have input in his or her custody
determination. Ms. Harwood also points out that Webster is a visitation
case, not a custody case.
In Webster, a foster mother sought the continuation of contact with her
foster child after the biological father had obtained custody. Webster,
189 Misc. 2d at 89-90. The Webster court, a family court in Albany County,
New York, found that the child had been denied equal protection of the laws
under the Fourteenth Amendment and the New York Constitution because the
State of New York had failed to provide a statutory basis for a child to
assert his right to associate with a person with whom the child has
developed a parent-like relationship. Id. at 87-88. Ms. Harwood is
mistaken in her assertion that the trial court based its decision solely on
Webster. While the trial court acknowledged Chris's right of association
and that he was of sufficient age and maturity to discuss a preference as
to his custody placement, the trial court did not base its decision solely
on Webster or a child's constitutional right to remain in contact with a
psychological parent. Here, the trial court applied the Allen standard and
based its decision on the determination that harm would result to Chris
unless he was placed in the home of his psychological parent with his de
facto family.
Lastly, Ms. Harwood suggests that the court abused its discretion because
the court's award of custody is based on speculation. Throughout the
record here, the adults associated with Chris expressed great concern over
the difficulties he would encounter in adolescence as he dealt with
circumstances surrounding his father's death. Ms. Merkel, Chris's grief
counselor, believed that this process was going to be 'horrendous'8 for
Chris depending on his age and the stage of development when this process
occurred. Based on the record here, the court did not abuse its discretion
by awarding custody of Chris to his stepmother.
In sum, we affirm the decision of the trial court because the court
properly applied the Allen standard. The court's finding of detriment to
Chris if he was placed with his mother is supported by evidence of actual
detriment including the showing that Ms. Shields was Chris's psychological
parent and that Chris was integrated into her family.

Kurtz, J.

I CONCUR:

Brown, C.J.

1 Ms. Harwood's counsel objected both to the duties assigned to the GAL and
to the manner in which he performed those duties. But Ms. Harwood has not
assigned error to these orders and the issue of the GAL's credibility is a
matter for the trial court, not this court.
2 The Report of Proceedings for the November 21, 2002 in chambers
interview with Chris Shields shall be referred to as 'ICRP.'
3 ICRP at 14.
4 CP at 242.
5 In 2003, the legislature amended chapter 26.10 RCW by adding section
6, which now requires an 'adequate cause' hearing to be decided on
affidavits and provides for the denial of the motion for a custody order
unless adequate cause is established. See
Laws of 2003, ch. 105, sec. 6.
6 CP at 247.
7 CP at 248.
8 RP at 112.

 

[fried eggs]

Obviously I spoke incorrectly when I said the step-mother retained custody when the father died. She did get it eventually, but I want to caution you that this is not a common occurence, but rather a rare one, even when there is significant cause and the step-parent fights for custody.

 

[Becki C.]

thank you for the info. that makes me feel somewhat better about my position should the situation ever arise that i have to engage in a court battle with my step-kid's bio mom.

i began dating my husband when my step-daughter was 18 months old and my step-son was 3 years old. we married 2 years later. i consider them my children, even though the proper legal term is "step-children". we also had a child of our own together who is now 5 years old and my husband adopted my daughter i had in a previous mariage. i feel that if anything happened to my husband, i could at least give a fair shot to attempt to retain custody since they have been with me so long (and other factors involved) and because i am the bio mom to their 2 siblings. at the very least, i would certainly fight for visitation. losing my husband would be traumatic enough without losing two of my kids as well.