Court ordered Grandparent Visitation

I am often asked by grandparents about obtaining court-ordered visitation with their grandchildren.  This is most acute when the relationship between the grandparent and the parent of the grandchild are strained.  Based upon the precedent of court decisions, I have to respond that this is not possible under present law.

A U.S. Supreme Court case in 2000 interpreting a Washington statute at the time ruled that statute unconstitutional as it infringed on the Due Process Clause of the Fourteenth Amendment.  The U.S. Supreme Court determined that the statute presented a substantial burden on the traditional parent-child relationship. In analyzing the statute, the Court asserted that the liberty interest of parents in the care, custody and control of their children is perhaps the oldest fundamental liberty interests recognized by the Court, and this should not be disturbed so long as the parents are fit to care for their children.   A subsequent decision issued by the Washington Supreme Court struck down a different grandparent visitation statute, also finding it unconstitutional.

According to this Washington Supreme Court decision, parents have a fundamental right to autonomy in child-rearing decisions.  State interference with this interest is justified only if the state can show that it has a compelling interest and such interference is narrowly drawn to meet only the compelling state interest involved.  This is a very difficult standard to meet.  Moreover, there is a constitutionally required presumption that a fit parent acts in the child’s best interests.

A recent Washington Supreme Court case issued on July 7, 2016, In re Custody of M.W., affirmed that a third party cannot petition for visitation rights through a custody proceeding.  The court opined that “[a]llowing any third party to petition for visitation rights (in this case, a step-grandparent) poses a serious threat to the stability of … nontraditional families.”   The Court flatly stated that there “is no statutory right to third-party visitation under our laws, and we decline to exercise our equitable powers to create such a right.”  Consequently, grandparent visitation cannot be ordered by a Washington state court.  Alternatively, the law permits a grandparent or other third party to seek non-parental custody by demonstrating that the parent is not a “suitable custodian” for the child.  Chapter 26.10 RCW.