OVERVIEW OF NON-PARENTAL CUSTODY
Thank you for your interest in our office and our legal services. It is our goal to provide you with professional and efficient legal services. In order to make you more fully aware of the future course of your non-parental custody proceeding it is important that you have full and complete information regarding the process through which your case will continue until its final conclusion.
Disclaimer: The following overview of the non-parental custody process is intended for information only and is not intended as a substitute for meeting personally with Gregory L. Davies and getting legal advice regarding your specific matter.
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A non-parental custody proceeding can be complex and confusing. Whether you decide to process your non-parental custody case yourself or hire our office to work with you there is no substitute for proper legal advice to ensure your probate is properly prepared, filed, negotiated and finalized.
What is Non-Parental Custody?
Non-Parental or Third Party Custody is a legal proceeding in which a non-parent seeks the legal custody of a minor child from that child’s natural or adoptive parents due to the parent’s unfitness as a custodian of the child or because the child is not in the physical custody of the parent.
A custody dispute between a parent and a nonparent requires a court "to apply a heightened legal standard; more than the 'best interests of the child' standard is required." A parent's rights may be outweighed in two situations: (1) if the parent is unfit or (2) "when actual detriment to the child's growth and development would result from placement with an otherwise fit parent."
How to Start a Non-Parental Custody case:
A child custody proceeding is started in the superior court by a person other than a parent, by filing a petition seeking custody of the child in the county where the child is a permanent resident or where the child is found, but only if the child is not in the physical custody of one of its parents or if the petitioner alleges that neither parent is a suitable custodian.
Washington State has adopted pattern forms that are required to be used in non-parental custody proceedings. The pattern forms can be found online or purchased from the Snohomish County Superior Court Clerk. If you choose to prepare your own non-parental custody case you will need to obtain the proper forms. Please refer to our website in “Services” under “Resources” for links to the Washington State forms website and the Snohomish County Superior Court Clerk’s website.
If you choose to hire our office to assist you with your non-parental custody case our office will provide the appropriate pattern forms.
Notice of a child custody proceeding shall be given to the child's parent, guardian, and custodian, who may appear and be heard and may file a responsive pleading. The court may, upon a showing of good cause, permit the intervention of other interested parties.
Current Filing Fee for a Non-Parental Custody:
The filing fee currently charged by Snohomish County Superior Court Clerk for a Non-Parental Custody case is $260.00.
Show Cause Motion for Temporary Custody:
A party seeking a custody order shall submit, along with his or her motion, an affidavit declaring that the child is not in the physical custody of one of its parents, or that neither parent is a suitable custodian, and setting forth facts supporting the requested order. The party seeking custody shall give notice, along with a copy of the affidavit, to other parties to the proceedings, who may file opposing affidavits.
The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for a hearing to allow a parent to provide the court with evidence why the requested order for custody should not be granted.
What is adequate cause?
The purpose of “adequate cause” is to impose a heavy burden on the noncustodial parent to show good reason why custody of a child should be removed from a parent so that the noncustodial parent will not file this type of motion to harass the custodial parent.
Adequate cause in a Non-Parental Custody case exists if the affidavits or declarations supporting the motion show the child is not in the custody of either parent or that one or both parents is not a suitable custodian.
Once adequate cause has been established, a show cause hearing is held to determine if the motion for custody should be granted. It is then that the nonparent must show that the parent is unfit, or that placement with an otherwise fit parent would detrimentally affect the child's growth and development.
What Other Issues Does the Court Consider in a Non-Parental Custody Matter?
1. Child custody and visitation – adopting a parenting plan.
The court shall determine custody in accordance with the best interests of the child. A custody dispute between a parent and a nonparent requires this court "to apply a heightened legal standard; more than the 'best interests of the child' standard is required." A parent's rights may be outweighed in two situations: (1) if the parent is unfit or (2) "when actual detriment to the child's growth and development would result from placement with an otherwise fit parent."
2. Child support pursuant to the Washington State child support schedules (the same as child support in dissolutions of marriage.)
In a non-parental custody action, the court makes child support provisions. The determination of child support is based upon the schedule and standards set forth by law.
In a custody proceeding, the court may order either or both parents to pay a reasonable amount for the child's support.
In entering or modifying a custody order under this chapter, the court shall require either or both parents to provide health insurance coverage for any dependent child
The allocation of the children as a federal tax exemption;
3. Any necessary continuing restraining orders preventing a party from:
(a) Molesting or disturbing the peace of the other party or of any child;
(b) Entering the family home or the home of the other party upon a showing of the necessity therefor; (c) Knowingly coming within, or knowingly remaining within, a specified distance from a specified location; and
(d) Removing a child from the jurisdiction of the court.
The court requires all parents with minor children to participate in a mandatory parenting class. There is a fee for the class which is based upon a sliding scale tied to a parent’s income. Upon completion of the class, a Certificate of Completion is issued which must be filed with the court clerk.
Guardian ad Litem:
In contested custody proceedings, and in other custody proceedings if a parent or the child's custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child, or may appoint a guardian ad litem, or both. The investigation and report may be made by the guardian ad litem, the staff of the juvenile court, or other professional social service organization experienced in counseling children and families.
Criminal History Required:
Before granting any order regarding the custody of a child, the court shall consult the judicial information system, if available, to determine the existence of any information and proceedings that are relevant to the placement of the child.
The court will require the petitioner to provide the results of an examination of state and national criminal identification data provided by the Washington State Patrol criminal identification system for the petitioner and adult members of the petitioner's household.
Parent’s Access to Child’s Education and Medical Records:
Each parent shall have full and equal access to the education and medical records of the child absent a court order to the contrary.
Parent’s Residential or Visitation Rights:
A parent not granted custody of the child is entitled to reasonable visitation rights unless there are limitations.
The limitations imposed by the court shall be reasonably calculated to protect the child from physical, sexual, or emotional abuse or harm, that could result if the child has contact with the parent requesting visitation. If the court expressly finds that limitations on visitation with the child will not adequately protect the child from the harm or abuse that could result if the child has contact with the parent requesting visitation, the court shall restrain the person seeking visitation from all contact with the child.
Visitation with the child shall be limited if it is found that the parent seeking visitation has engaged in any of the following conduct:
(i) Willful abandonment that continues for an extended period of time, or substantial refusal to perform parenting functions;
(ii) physical, sexual, or a pattern of emotional abuse of a child;
(iii) a history of acts of domestic violence or an assault or sexual assault which causes grievous bodily harm or the fear of such harm; or
(iv) a parent has been convicted as an adult of a sex offense.
Visitation of a parent may be limited if it is found that the parent resides with a person who has engaged in any of the following conduct:
(i) Physical, sexual, or a pattern of emotional abuse of a child;
(ii) a history of acts of domestic violence or an assault or sexual assault that causes grievous bodily harm or the fear of such harm; or
(iii) the person has been convicted as an adult or as a juvenile of a sex offense.
What Can a Non-Parental Custodian Do?
The custodian may determine the child's upbringing, including education, health care, and religious training.
Agreement, Settlement or Mandatory Mediation:
Agreement or settlement is the preferred way to resolve a non-parental custody case. Parties have more control over the final outcome, it is generally less expensive and quicker to reach an agreement or settlement. If the non-parental custody case proceeds to trial the parties have lost control over the outcome and the expenses are greater. Parties may reach an agreement or settlement between themselves; parties may reach an agreement or settlement with the assistance of attorneys; or parties will be required to attend a mandatory mediation session with a neutral third-party mediator to try to reach an agreement or settlement.
If the parties have not reached an agreement or settlement either on their own or with the assistance of their attorneys, they are then required to attend mandatory mediation as a precondition for trial. Professional mediators generally charge between $250.00 to $300.00 per hour. Parties generally split this fee equally. Mediators expect to be paid before or at the mediation session. Parties engaging in mediation are expected to participate in good faith and make a reasonable effort to reach an agreement or settlement on any disputed issues.
Parties are not required to reach an agreement or settlement and mediators have no authority to impose any decision on the parties regarding disputed issues. Mediation sessions are confidential and neither party may disclose any discussions engaged in at mediation in any court proceeding. Mediators cannot be called as witnesses.
A trial will be necessary to resolve and finalize a non-parental custody case if the parties are not successful in reaching an agreement or settlement. In Snohomish County a trial is assigned generally 4 to 5 months out and there is no pre-assignment of a judge for the custody case. A non-parental custody case only goes to trial if the parties have engaged in mandatory mediation but were not successful.
At trial a judge will listen to both sides testify and present evidence regarding their respective positions and at the conclusion of the trial will render a decision detailing how the children are provided for both physically and financially.
The final custody documents are then prepared by either the parties or their attorneys and then presented to the court for approval. Once the final documents are approved the non-parental custody case is final.
Can a Non-Parental Custody Order be Modified? The court shall hear and review petitions for modifications of a parenting plan, custody order, visitation order, or other order governing the residence of a child, and conduct any proceedings concerning a relocation of the residence where the child resides a majority of the time.
If the court finds that a motion to modify a prior custody decree has been brought in bad faith, the court shall assess the attorney's fees and court costs of the custodian against the petitioner.
Every action or proceeding to change, modify, or enforce any final order, judgment, or decree in relation to the care, custody, control, or support of the minor children may be brought in the county where the minor children are then residing, or in the court in which the final order, judgment, or decree was entered, or in the county where the parent or other person who has the care, custody, or control of the children is then residing.
Attorney’s Fees and Costs
Our attorney’s fees are based on an hourly rate along with an estimate of the amount of time we believe it will take to finalize your non-parental custody case. Our current fees are listed on our website in “Services” under “Fees.” Non-parental custody cases that are resolved by agreement or settlement will cost less than ones that are contested and must be resolved by the court or arbitrator.
Note to Do-It-Yourselfers:
If you choose to do your own non-parental custody case, we always recommend you have our office review your paperwork before you file it with the court. We do charge a minimal fee for this review or any other services you request. We also encourage you to consult with our office during the non-parental custody process as you feel the need. If, at any time, you feel overwhelmed with the non-parental custody process and doing it yourself we will be ready to take over your representation.
Our office keeps itemized billing records that are created at the same time as specific services provided for your case. This itemized billing statement is provided to you at the end of each month. You should review this billing statement carefully as it is not only a record of our time and charges for your case but also a record of our services provided.
Our office also prepares a written attorney fee agreement for each case. The agreement is signed by you and Gregory L. Davies. The original is kept in our client file and a copy is provided to you.
Thank you for your interest in our office and our legal services. If you have any questions concerning your non-parental custody case (or any other legal matter), whether you hire our office to work with you or you are processing your non-parental custody case yourself, please contact our office to set up an appointment to meet with Gregory L. Davies.
To find our find out more about how our law firm can help you with your non-parental custody needs, contact Gregory L. Davies, Attorney at Law, in Everett, Washington. Call (425) 259-2755 or email us.