Third-Party Visitation

Whether grandparents have a right to visitation of their grandchild whenever visitation may serve the best interests of the child?

Section 26.10.160(3) of the Revised Code of Washington permits “any person” to petition a superior court for visitation rights “at any time,” and authorizes that court to grant such visitation rights whenever “visitation may serve the best interest of the child. However, on June 5, 2000, the Washington Supreme Court held that §26.10.160(3) unconstitutionally interferes with the fundamental right of parents to rear their children. Troxel v. Granville (2005).

            Parents have a fundamental right in the care, custody, and control of their children. Troxel. Furthermore, the Washington State Supreme Court based its decision on two additional reasons. First, the Court held that a state can constitutionally interfere with the right of parents to rear their children only to prevent harm or potential harm to a child. Troxel. The statute at issue failed that standard because it requires no proof of harm to the child. Therefore, grandparents do not have a right to visitation simply because visitation will serve the best interests of the child. In addition, the Court held that the statute was too broad because it allows “any person to petition a superior court for visitation rights at any time.” This is unconstitutional because this means that the person requesting visitation might not be related to the child in any way.

            Therefore, rather than proving visitation is in the best interests of the child, a third-party must show that the child is likely to suffer harm or a substantial risk of harm if visitation is denied. My recommendation is that the Washington Legislature look to other jurisdictions to see how they have implemented their third-party visitation statutes and evaluate how effective they are. The reason for this is because there are certain circumstances where third-parties should have a right to visitation because they will be able to promote a child’s welfare by involving themselves in the child’s life. However, this will be impossible until the legislature formulates a new rule. For now, grandparents have no right to visitation solely because visitation will serve the best interests of the child.