HOUSE BILL REPORT

                  HB 2750

                      As Passed House:

                      February 16, 1998

Title:  An act relating to visitation.

Brief Description:  Providing a procedure for persons other than parents to intervene in custody proceedings in order to obtain visitation.

Sponsors:  Representatives Wolfe, Kessler, Dickerson, Anderson, Gardner and Lambert.

Brief History:

  Committee Activity:

Law & Justice:  1/28/98, 2/5/98 [DP].

Floor Activity:

Passed House:  2/16/98, 98-0.

HOUSE COMMITTEE ON LAW & JUSTICE

Majority Report:  Do pass.  Signed by 13 members:  Representatives Sheahan, Chairman; McDonald, Vice Chairman; Sterk, Vice Chairman; Costa, Ranking Minority Member; Constantine, Assistant Ranking Minority Member; Carrell; Cody; Kenney; Lambert; Lantz; Mulliken; Robertson and Sherstad.

Staff:  Trudes Hutcheson (786-7384).

Background:  Under certain circumstances, a person other than a parent may bring an action to obtain custody of a child.  There is a specific chapter in the code, 26.10 RCW, governing nonparental actions for child custody.  Within that chapter, there is a statute addressing visitation and explicitly providing that:  "Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings."  RCW 26.10.160(3).

The court of appeals recently interpreted that provision to mean that a person other than a parent may petition for visitation only when a custody proceeding is pending, as opposed to "any time."  In the Matter of Visitation of Wolcott; In re the Visitation of Troxel.  The court based its interpretation on the parallel histories of the visitation statute in the third-party custody chapter (26.10 RCW) and the visitation statute in the dissolution of marriages chapter (26.09 RCW).

In the chapter governing dissolutions, a person other than a parent may petition for visitation when the parents have commenced a dissolution, legal separation, or modification of a parenting plan proceeding.  A petition will be dismissed unless the petitioner can demonstrate by clear and convincing evidence that a significant relationship exists with the child.  If the court dismisses a petition because the petitioner has failed to show such a relationship, the petitioner must pay reasonable costs and attorney fees to the respondent.

The court may order visitation if the evidence supports a finding that visitation would be in the child's best interests.  Visitation with a grandparent is presumed to be in the child's best interests.  This presumption may be rebutted by a preponderance of the evidence showing that visitation would endanger the child's physical, mental, or emotional health.  If visitation would be in the child's interests, but for hostilities between the parents and grandparent, the court may order mediation. 

The statute lists factors that the court may consider in determining whether to award visitation to a person other than a parent.  The visitation may be modified or terminated in any subsequent modification action if the court finds that the visitation is no longer in the child's best interest.

Summary of Bill:  The visitation statutes are clarified as to when a person other than a parent may petition or intervene in a pending proceeding to obtain visitation with a child.

A person other than a parent may intervene in a pending dissolution, legal separation, declaration concerning the validity of marriage, or modification of a parenting plan proceeding for the purposes of seeking visitation with a child.  A person other than a parent may petition for visitation only if a final order has been entered in a proceeding for dissolution, legal separation, or declaration concerning the validity of marriage.

The visitation provision in the third-party custody chapter is amended to be substantially identical  to the visitation provision in the dissolution statutes.  It includes the requirement that the petitioner demonstrate by clear and convincing evidence that a significant relationship exists with the child and includes the grandparent presumption.

Appropriation:  None.

Fiscal Note:  Not requested.

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

Testimony For:  Grandparents should be able to seek visitation with grandchildren anytime.  It is unfair for children to be denied the opportunities and history that grandparents provide.  Although relations may be fine in the beginning between grandparents and parents of the child, problems can arise later, and the grandparents should have the chance to still see the child.

Testimony Against:  Finality and stability are important for families that have gone through dissolution.  It will be disruptive to the family to allow a person to reopen proceedings to seek visitation after a final parenting plan has been entered.

Testified:  Representative Wolfe, prime sponsor; Doug Martin, citizen (pro); and Bill Harrington, citizen (con).