On June 5, 2000, the Washington Supreme Court held that Section 26.10.160(3) of the Revised Code of Washington unconstitutionally interferes with the fundamental right of parents to rear their children. Troxel v. Granville (2005). Therefore, at this time, non-parents do not have the right to ask for court-ordered visitation over the objection of a fit parent.
However, if you are a non-biological parent that helped raise the child, the situation may be different. It is both unfair and harmful to a child when someone acts as a parent for the child for an extended period of time and then loses access to the child because the relationship with the biological parent failed. To prevent this harm, Washington State has created different avenues for non-biological parents to gain custody or visitation in this type of situation.
The law on this particular issue is still developing and can change very fast. As of right now, if a parent is not a biological or adoptive parent, he or she may still be able to gain parental rights and duties with the child in question if he or she can prove that they are the child’s “de facto parent.”
Under RCW 26.26A.440, for non-biological parents to qualify as a de facto parents, they must prove all of the following: (1) they have an actual “parent-like” relationship with the child; (2) the relationship was formed with a biological or adoptive parent’s consent or encouragement; (3) the non-biological parent lived with the child in the same household; (4) the non-biological parent took on responsibilities of parenting without any expectation of renumeration; (5) the person acted as a parent long enough to have developed a bonded, dependent, parent-like relationship with the child; and (6) the person fully and completely undertook a permanent, unequivocal, committed, and responsible parental role in the child’s life.
Although the concept of a de facto parent is pleasant to think about because of the unjustness it seeks to avoid, it can be very hard to prove. The reason for this is because the non-biological parent attempting to establish him or herself as a de facto parent must prove all of the factors set out in RCW 26.26A.440. This is an extreme hurdle to cross for non-biological parents.
Fortunately, if a non-biological parent does not meet the criteria of a de facto parent, they can still potentially gain custody or visitation of the child in question. To do this, a non-biological parent must prove that (1) the child is not in the biological parent’s physical custody; (2) the biological parent is unfit; or (3) that living with an otherwise fit parent would detrimentally affect the child’s growth and development, and that the non-biological parent is fit to be a parent. This last prong is often easier to prove if the child and the non-biological parent have a strong, loving and genuine relationship. This is especially true if the child is young because he or she is still developing emotionally and physically.
It is unfair for innocent children to be harmed when they are still maturing. Children often form strong “parent-like” relationships with their biological parent’s partner, and it is devastating when children lose access to these parent-like figures just because their parents’ relationship did not work out. Therefore, Washington has created the concept of “de facto” parent in order to overcome this type of unjustness. If the non-biological parent cannot prove that they are a de facto parent, they still have hope if they can prove one of the three factors listed above.
Karan's Family Law Blog 