Grandparent and Third Party Visitation Eliminated

On December 24, 1998, the Washington State Supreme Court found that RCW 26.09.240 (Grandparent visitation) and RCW 26.10.160(3) (Third Party Visitation) were unconstitutional in the following consolidated case, In re Custody of Sara Skyanne Smith, Docket No. 65605-3.

Justice Madsen, in writing for the majority, stated that RCW 26.09.240 and RCW 26.10.160(3) impermissibly interfere with a parent's fundamental interest in the care, custody and companionship of the child. The deficiency in the statutes that she saw was that the statutory standard of best interests of the child, was "insufficient to serve as a compelling state interest overruling a parent's fundamental rights."

Justice Talmadge, in writing for the minority, argued that the best interest of the child standard was sufficient to govern grandparent and third party visitation. He noted:

By eliminating the limited right these statutes provides for nonparents to seek visitation with children, the majority opinion will have cruel and far- reaching effects on loving relatives, particularly grandparents of children, depriving them in many instances of any contact with their grandchildren. (reference omitted)

No matter which opinion one may find agreeable, whether it be Justice Madsen or Justice Talmadge, the practical effect of the court's decision is to deprive nonparties to dissolution custody actions from any opportunity to have visitation without consideration of the significance of the relationship between the nonparty and the child, and, more importantly, without an assessment of the best interests of the child.