Question

My younger sister has a seven year old daughter. The dad’s been out of the picture for years, and lately my sister has too. While I don’t know for sure, I suspect that my sister is abusing drugs.  She lost her job about a year ago, and since then she’s been relying on me for “baby-sitting” more and more – even though she hasn’t gone back to work. More often than not, I end up taking care of my niece for days at a time, with no word from my sister. My niece seems exhausted whenever she’s dropped off at my house, and I’ve noticed that her clothes are often dirty and stained.

Recently, my niece told me that she and her mommy were going to move in with “mommy’s new friend” because they couldn’t live in their apartment anymore. I’m very worried about my sister, but even more so about my niece. Is there any way I can get custody of her?

Answer

Washington law permits courts to award custody of a child to someone other than her parents, but only in certain, narrow circumstances.

RCW 26.10 governs all third party or “non-parental” custody proceedings, and there are a number of legal and procedural requirements that you must fulfill in order to succeed.

The governing standard for an award of non-parental custody is parental unfitness or actual detriment to the child in her present circumstances.  That is, it is not enough to show that the child would have a better environment with you; the non-parent must show that the child will be harmed if she continues to live with her legal parent(s)—not just that a different custody arrangement would be in her best interests.

You are required to give notice of your petition to both parents, even if you do not know where one, or either of them, is living.  In those cases, you may have to serve the parent(s) by alternate means, such as by publishing a legal notice in a newspaper.  Otherwise, you have to arrange for personal service of your petition, and a summons, on both parents.

And, when you file a petition for non-parental custody you must allege, and be able to prove, that your niece is either (1) not in the custody of either of her parents or (2) that neither of her parents is a “suitable custodian” for her, before the court will allow your case to proceed to trial. You must also give the court and the parents the names of any other adults who live in your house.

You must also schedule an initial hearing (referred to as a “show cause” hearing) so that the court can determine whether you have enough evidence to meet the standards for non-parental custody. You need to allege specific facts about your sister’s problems, the father’s failure to parent your niece, and the negative effect that both parents’ conduct has on your niece’s development, well-being, and safety.

The court will dismiss the case unless you can show that you have sufficient evidence to prove that both parents are unfit, or that living with either of them would be detrimental to your niece. If you are successful at the show cause hearing, your case will then proceed to a trial.

If you are ultimately successful in your claim for custody, the court will enter a final custody order called a Non-parental Custody Decree.  That decree will give you the right to have the child live with you, and to make all educational, medical, and other major decisions about the child.

The decree may also give one or both of the legal parents the right to limited contact or visitation with the child, usually on the condition that the parent comply with certain services such as drug/alcohol treatment or mental health counseling. The court may also order the parents to pay child support.

While the decree will give a non-parent most of the powers and duties of a legal parent, it does not actually make the non-parent the child’s legal parent; nor does it strip the legal parents of their inherent parental rights. That can only be achieved through termination of the parents’ legal rights, and an adoption of the child by the non-parent.  The standards for termination of parental rights are even stricter than that those for non-parental custody.

These are just some of the major requirements and aspects of a non-parental custody case; there are many other requirements and procedures that you must follow in order to comply with the law of third party custody.  For this, and other reasons, non-parental custody cases are usually fact intensive, legally complex, stressful, and emotionally charged.  Whether you should undertake a non-parental custody case is something that you should determine only after some personal reflection, and consultation with an experienced family law attorney.