These materials were prepared by Mindy Carr for a Snohomish County Bar Association CLE discussing the effects of two recent Division Three third party custody cases and their important effects on past, present, and future third party custody cases.

Disclaimer: These materials are meant for continuing legal education and should not be perceived as legal advice. If you are in need of legal advice on a third party custody matter, please contact a third party custody lawyer.

Background:

Before the December 2015 cases, modifications of Third Party Custody Orders were already less-than-intuitive for several reasons:

1. The third party custody statute (RCW 26.10) does not include its own provision for modifications;
2. The modification statute applied by the Courts in third party custody cases (RCW 26.09.260) makes no reference to the special requirements for third party custody cases under the 2011 T.L. case, (and still does not reference the requirements under the 2016 Z.C. case); and
3. Until the Washington court forms were updated in May 2016, the court forms for final orders on third party custody did not include sections addressing the case law requirements of establishing current parental unfitness and actual detriment.

RCW 26.09.260 (1)&(2) allow a major modification only upon proof of a substantial change in circumstances of the other party or child. So, for a parent involved in third party custody case to establish adequate cause for a modification, it is not enough under RCW 26.09.260 (1)&(2) to simply show that he or she has remedied the parental deficiencies that led to establishment of third party custody.

A way around this is if the parent can show that T.L. and/or Z.C. apply – in other words, that application of the high adequate cause standard under RCW 26.09.260 (1)&(2) is unconstitutional as applied to the facts of the case.

Holdings of Relevant Cases:

• In T.L. (2011), the mother had signed a joinder of a third party custody petition, but had not signed the final orders. Her alleged parental deficiency was substance abuse. Later, she petitioned for modification and the trial court found she did not establish adequate cause under RCW 26.09.260(1)&(2).
  • Division Three held: Where a nonparent has never proved the heightened standard required by the constitution to obtain custody from a parent (current unfitness and/or actual detriment), then, in the event a parent moves to dismiss or modify the custody decree, the nonparent can successfully resist the motion only by proving the constitutional requisites.
  • Because the trial court made no findings of unfitness or detriment, the mother’s parental rights remained unchanged. Therefore, the high adequate cause standard of RCW 26.09.260(1) & (2) on modification was unconstitutional as applied, as it would deprive the mother of her fundamental right to parent without giving her the benefit of the procedural protections of a contested hearing.
  • Instead, the mother was entitled to a hearing where she would be presumed a fit parent.
• In Z.C. (December 2015), the mother’s alleged deficiency was also substance abuse. After several hearings at the trial level, she signed agreed final orders, which did not include findings of current parental unfitness or actual detriment. Later, she petitioned for modification and the trial court concluded she did not establish adequate cause under RCW 26.09.260(1)&(2).
  • Division Three held: T.L. applies, and it is unconstitutional to apply the adequate cause standard of RCW 26.09.260(1)&(2), where a parent entered into final agreed orders that did not include findings regarding current parental unfitness or actual detriment.
  • Agreed findings re: best interest of the child were insufficient to deprive the mother of her constitutional rights to parent her child.
  • The mother was entitled to a hearing where she would be presumed a fit parent and the third party custodians would bear the burden of proving current parental unfitness or actual detriment.
• In A.L.D. (December 2015), Division Three emphasized that the burden of proof to show current parental unfitness and/or actual detriment is clear, cogent, and convincing evidence.

Effects of T.L. and Z.C. on established third party custody cases:

There are likely hundreds of Washington third party custody cases affected by these opinions. Even after T.L., the court forms failed to include a section requiring findings of current parental unfitness and/or actual detriment. And even after T.L., parties continued to rely on parents signing joinders to get to final orders.

In these cases, where there are no findings of unfitness or detriment, parents will be able to obtain hearings that will re-open the cases and require the third party custodians to prove these factors by clear, cogent, and convincing evidence.

Pitfalls to avoid moving forward with third party custody cases (again, this is not legal advice):

• Reliance on the parent’s joinder risks later modification under T.L. and Z.C. Parents can stipulate to a finding of unfitness or actual detriment through final orders. It is risky to try to rely on joinder even if the petition includes those allegations.
• This is one of those obvious things that I shouldn’t have to say but I need to because it happens all the time: Joinder obtained through fraudulent means is even more risky. It may seem easier at the time to get someone to sign the last page of a joinder without showing them the entire petition, but dealing with a full hearing on modification with a parent who feels she has been deceived and betrayed will be more of a hassle than trying to get agreed orders in the first place.
• If the parties agree third party custody is appropriate, they can address the concerns in Z.C. by checking the boxes on the new court forms for findings of unfitness/detriment AND including enough facts to sufficiently establish those factors. Case law on these factors give an idea of what facts are sufficient. For example:
  • Unfitness means the parent is unable to meet the child’s basic needs. Substance abuse and a need for treatment is not in itself enough. There must be something more. See e.g., A.D.L., 191 Wn.App. 474 (2015).
  • Actual detriment is a standard that applies in “extraordinary circumstances” and usually where a child has special needs that the parent is unable to fulfill. The fact that a child has been living with the third party custodian all her life, even if the parent has not had any visits until after filing for modification, does not establish actual detriment. See e.g., A.D.L., 191 Wn.App. 474 (2015) (citing M.H., 179 Wn.2d 224 (2013), C.C.M., 149 Wn.App. 184 (2009), Shields, 157 Wn.2d 126 (2006)).

Other Issues

What kind of hearing does Z.C. require?

Z.C. is a bit vague about what kind of hearing is required, but it seems to require a full, live hearing with witness testimony and cannot be based solely on affidavits. Z.C. clearly requires the parent to be presumed fit, and the third party custodian(s) have the burden to prove current unfitness and/or detriment by clear, cogent, and convincing evidence. If they fail, the case should be dismissed.

In a recent case, Judge Cook in Skagit County concluded it is an evidentiary hearing and requested the parties obtain a trial date through the clerk’s office. Opposing counsel requested the Court first set an adequate cause hearing on the third party custody petition to be determined based on affidavits only, and Judge Cook denied that request.

How can I obtain an evidentiary hearing under Z.C.?

Z.C. explains that the threshold issue for a modification of a third party custody order is whether the final orders contain sufficient findings of unfitness or detriment. A party may file a petition for modification and note a motion asking the Court to determine this threshold issue and to schedule the evidentiary hearing.

At the evidentiary hearing, does the third party custodian have to prove unfitness and detriment for both parents?

Yes, both parents have constitutional rights. If one is fit, there cannot be third party custody.

Will the Legislature amend the third party custody statute to incorporate these new requirements?

Probably. Division Three’s Z.C. opinion encourages the Legislature to amend the statute to reflect the case law so that parties may be able to rely on the statute. Division Three also encouraged the Legislature to consider Amici’s concerns (see next issue below). However, it will take some time and motivated people to make these changes a reality.

Is the Legislature likely to amend the third party custody statute to allow for parents to more easily modify third party custody orders when they have remedied their parental deficiencies – even where there has been a finding of unfitness or detriment in the final orders?

Maybe. Amici Legal Voice and Northwest Justice Project argued in Z.C. (and continue to argue this in other cases; click here to read their amazing Amicus brief) that the high adequate cause standard of RCW 26.09.260 was intended for cases where both parties are parents, and that a different standard should exist for third party custody cases in order to (1) create an incentive for parents to remedy their deficiencies so they can get there kids back, and (2) to avoid allowing the State and third party custodians to use third party custody actions as an end-run around the rights parents would otherwise have in a dependency cases.

Amici are always looking for test cases to take on appeal, so attorneys please contact Mindy Carr, Legal Voice, or Northwest Justice Project if you think you have a good test case.

 

I’ll post more after the CLE. Feel free to contact me with questions or comments at Mindy.Carr@CarrFamilyLaw.com