SENATE BILL REPORT

SB 5029

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As of January 11, 2001

Title:  An act relating to nonparental visitation rights.

Brief Description:  Regarding nonparental visitation rights.

Sponsors:  Senators Franklin and Carlson.

Brief History:

Committee Activity:  Judiciary:  1/16/01.

______________________________________________________________________________SENATE COMMITTEE ON JUDICIARY

Staff:  Aldo Melchiori (786‑7439)

Background:  Washington's non-parental visitation statute states that "Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings.  The court may order visitation rights for any person when visitation may serve the best interests of the child whether or not there has been a change in circumstances."  The Washington Supreme Court, in In re Custody of Smith, held that the non-parental visitation statute is unconstitutional because it impermissibly interferes with a parent's fundamental interest in the care, custody and companionship of their children.  Troxel v. Granville, one of the consolidated cases, was subsequently appealed to the United States Supreme Court.  In affirming the Washington decision, the court found that the statute, as applied in the Troxel case, violated the mother's due process right to make parental decisions.  There is disagreement regarding what the two decisions mean when they are read together.  Some believe that the non-parental visitation statute is currently unenforceable, while others believe that it may be enforceable because the United States Supreme Court only found it unconstitutional as applied when it affirmed the Washington court.

Summary of Bill:  Any person may  petition for visitation if there has been a substantial change in circumstances relating to the parent or minor child that justifies the action.  The petitioner must then show that a substantial relationship exists with the child.  The action must be dismissed by the court if the petitioner fails to show such a relationship.  If the petitioner is a grandparent, there is a rebuttable presumption that a significant relationship exists.  Once the petitioner has successfully shown the existence of a significant relationship, the court may order visitation if it additionally finds that visitation is in the best interests of the child and that denial would result in a likelihood of substantial harm to the child's physical, mental or emotional well-being.  The factors that the court may consider when determining whether visitation is in the child's best interests are enumerated.  If the petition is not granted, the petitioner is ordered to pay the opposing party's reasonable attorney's fees and costs.

A person other than a parent may intervene in a pending dissolution, legal separation, or modification of a parenting plan proceeding.  The burdens of proof and standards are the same as in non-parental petitions.  Reasonable attorney's fees and costs are awarded to the parents or representatives if the intervener fails to prove a significant relationship with the child.

Appropriation:  None.

Fiscal Note:  Not requested.

Effective Date:  Ninety days after adjournment of session in which bill is passed.