Do Grandparents Have Visitation Rights in Washington?

In some families, grandparents play a unique role in their grandchildren's lives, but a grandparent's visitation and custody rights are almost always secondary to the parent's. However, in certain circumstances, a court may award a grandparent visitation privileges or even custody.

Each state has its own rules governing grandparent visitation. It's important to understand the laws in your state. This article provides an overview of grandparent visitation rights in Washington. If after reading this article you have questions, contact a local family law attorney for advice.

Overview of Grandparent Visitation Under Troxel

Parents have constitutionally-protected rights when it comes to raising their own children. As much as a grandparent may want to intervene, a parent typically gets the final say on where the child goes and who the child will spend time with. However, in certain limited cases, grandparents may be able to secure visitation time over a parent's objections.

There isn't a federal law governing grandparent visitation. However, a Washington case that made it all the way to the Supreme Court has become the standard rule for grandparent visitation rights across the country. In the landmark case Troxel v. Granville, paternal grandparents petitioned for visitation rights with their grandchildren after the child's father committed suicide. The grandparents had a strong bond with their grandchildren, but the children's mother prevented visitation just a few months after the father's death. Washington's grandparent visitation statute is permissive and broad, allowing grandparent visitation even if a child's parent objects, but only if the court finds that visitation will serve the child's best interests.

The Washington trial court granted the grandparents' request, although it was less visitation than they originally sought, it was more than the child's mother wanted. The case was appealed to the Washington Supreme Court and finally the U.S. Supreme court where the statute was upheld. The Supreme Court said the Washington grandparent visitation statute was constitutional, but a judge must give "special weight" to a parent's objections to grandparent visitation. Ultimately, a child's best interests will determine how much visitation is appropriate, if any.

Grandparent Visitation in Washington

Washington law recognizes a grandparent's right to maintain a relationship with a grandchild. However, a grandparent can't petition for visitation rights unless the child's parents are divorced, separated, are in the process of divorce, or some other breakdown of the nuclear family unit has occurred. It's presumed that grandparent visitation is in a child's best interests when the child and grandparent have a strong relationship. A court will consider the following factors to determine a child's best interests:

• the child's relationship with the grandparent (is there a strong bond between the child and the grandparent?)
• the grandparent's relationship with each of the child's parents
• the nature and reason for either parent's objection to grandparent visitation
• the effects grandparent visitation will have on the parent-child relationship
• the parents' custody arrangement
• any past criminal history or history of emotional, physical or sexual abuse or neglect by the grandparent, and
• any other factor the court deems relevant.

A court may consider all or a few of the above factors when deciding whether grandparent visitation is appropriate. The individual circumstances of your case will determine the amount and frequency of visitation ordered.

When Can a Grandparent Obtain Custody of a Grandchild?

A grandparent can't obtain custody of a grandchild unless the child's parents are unfit. Washington courts have stated that the preference for parental custody can only be overcome if a change of custody is in the child's best interests.

Notably, even when a parent gives custody of a child to a grandparent, the grandparent still isn't treated as a parent in a custody proceeding involving the grandparent and a third party. For example, in one Washington case, a set of parents placed their child in the custody of the child's grandmother. The child spent the next four years in her grandmother's care and custody. Washington state instituted a custody action after the child's mother was arrested for drug use and production. In determining a custody award, the court used a best interests of the child test – not a parental presumption of fitness test. This means the court compared whether the child's best interests would be met in the cousin's care or the grandparents' care. If the case had been between the parents and grandparents, a change of custody wouldn't have been considered unless the parents were unfit. In this case, the grandparents weren't unfit, but the court awarded custody to the cousin because she could better meet the child's best interests.

The above case highlights the fact that grandparents don't enjoy the same rights and privileges as parents. Grandparent rights always come in second. A grandparent can only obtain custody of a grandchild if the child's parents are unfit and it's in the child's best interests.

Can a Biological Grandparent Obtain Visitation With a Child That was Placed for Adoption?

Placing a child for adoption permanently severs the child's legal ties to parents and grandparents. Following a child's adoption, a biological grandparent can't ask a court to order visitation with the child, even if a relative adopted the child.

For example, in one Washington case, a grandmother lost her petition for grandparent visitation of an adopted grandchild. The child's parents never married, and the child's mother and her boyfriend (not the child's father) cared for the child. Following the child's mother's death, the grandfather (the petitioning grandmother's former husband) and his new wife, adopted the child. The grandmother objected, but only after the adoption was finalized; she didn't file an objection during the adoption proceedings. Ultimately, the court held that a grandchild's adoption, even by a family member, terminated the grandmother's rights to seek visitation.

Grandparents enrich their grandchildren's lives. Moreover, grandparents can offer a certain amount of stability and support to grandchildren and their parents. However, when parents divorce or separate, efforts to encourage grandparent visitation are one of the first things to go. In Washington, grandparents may have legal recourse to obtain visitation rights with grandchildren, as long as it serves the child's best interests. If you have additional questions about pursuing grandparent visitation or custody rights in Washington, contact a local family law attorney for advice.