“Third party custody,” or nonparental custody, was changed to minor guardianship in 2021. To gain custody of someone else’s child in Washington, you must file a lawsuit with the court asking to be appointed as the guardian for the child or children.
To be appointed a guardian for a minor child, RCW 11.130.185 requires that you must prove:
- The minor does not already have a guardian,
- The appointment is in the child’s best interest,
- And (one of the following three things is true),
- Each parent consents (after being fully informed of the consequences), or,
- All parental rights have been terminated, or
- Neither parent is willing or able to exercise parenting functions as defined in RCW 26.09.004.
Parenting functions and the Best Interest of the Child (BIOTC) are defined in RCW 26.09.004, and other statutes, which are listed here.
Who can be a guardian?
Anyone can be a guardian for a minor. In other words, to obtain custody of a child who is not yours, you could be a grandparent, a relative, a friend, or anyone else.
The minor guardianship law does not identify a priority schedule for who may be a guardian, but other laws and Washington’s past history may offer some guidelines for judges. Under the so called “grandparent’s rights” law, RCW 26.11 allows visitation (not custody) rights in certain situations, but only to relatives who have had an ongoing and substantial relationship with the child over the last two years. (Click here for information about visitation rights for family members.)
In addition, the minor guardianship law requires that notice be provided to any person who has had physical custody or was the primary caretaker for 1) 60 days in the last two years, or 2) for two years in any of the last five years. Presumably, anyone who has been providing actual primary care for a child would normally be preferred as a guardian.
From a psychological, bonding, attachment, and developmental perspective, adults who a child has depended on to protect and provide for them would presumably be a preferred guardian.
Can I appoint a guardian in my will?
Yes. The court is not bound to follow that direction, but will consider it strongly if the other parent is unfit.
Can a child chose a guardian?
Yes, especially if the child is over 12. The law allows parents to nominate a guardian in a Last Will and Testament, and the court will also ask living parents if they have a preference. The child’s preference prioritized below the parent’s wishes. However, the court can make it’s own decision if it believes a different guardian is in the best interests of the child.
How do I prove neither parent is able to parent?
Proving a parent is unfit and that a guardian needs to be appointed is the big issue. If you can clearly prove a parent is using drugs, abusing or causing serious harm, seriously neglecting a child, or abandoning their child, your case may be easier to prove. Sometimes finding evidence of parental unfitness takes some work, and is something you may need to talk about with your attorney.
If the court grants a guardianship petition, the court must still do everything it can to preserve the parent’s contact with their children, unless the court finds the relationship should be limited or restricted under RCW 26.09.191. That statute sets out all the reasons a court can limit or restrict a parents contact with their children, such as drug use and physical abuse.
What are the technical requirements needed in a petition to establish a guardianship?
There a number of technical requirements to file a petition to establish a guardianship. The requirements for what must be put in a petition is described in RCW 11.130.190. (The requirements should be consolidated into the petition form which the state will publish in the forms section of courts.wa.gov.)
How do I set up a hearing to appoint myself as a guardian?
First, you file a petition to establish a minor guardianship, and then set up a hearing for the court to consider the request. With the petition you will need to file a statement explaining why you think a minor guardianship should be established and you should be the guardian. You will want to work with your lawyer on drafting this statement. It is important to do a thorough job.
Washington has published free forms for minor guardianship cases.
Who do I have give notice to?
Because you are seeking to take or limit a parent’s fundamental and constitutional right to parent, giving notice to all the relevant people is a critical step. The statute lays out a complex set of rules about notice. Generally, you need to give notice to the biological parents. You also need to inform any adult who has has provided a significant amount of caretaking to the child, specifically caretaking of at least 60 days over the last two years, or for two years over the last five years. You may also need to give notice to family members. Notice to the child is generally required if the child is 12 or older.
Failure to comply with the notice, and other initial technical requirements, can result in your lawsuit being immediately dismissed.
What is the burden of proof in a minor guardianship case?
Burden of proof refers to the quality of evidence you need to establish in a particular type of case. To prove that no parent is able to exercise parenting functions, you must prove your case by “clear and convincing evidence.” This is a legal standard which is lower than the “beyond a reasonable doubt” standard, but higher than a “more probable than not” standard. The more probable than not standard is generally thought to mean that you only have to show by a 51% likelihood. This is the standard in a divorce case and most civil cases.
There are no technical guidelines for what percentage of proof the other two common standard require. Beyond a reasonable doubt is often thought to be proof that the claim is more than 90-95% likely true. The clear and convincing standard might be something like 75% likely, but again, that is an estimate just to illustrate this standard is higher than in a divorce case.
What is the UGA, and are the guardianship laws clear?
Washington’s Uniform Guardianship Act for minor children is based on the Uniform Guardianship Act developed by the Uniform Law Commission. Such “uniform” laws are intended to create a consistent set of rules for all or most states. Washington is the first state in the U.S. to adopt the UGA, which went into effect on January 1, 2021. While this is admirable, it creates a situation where some of the law is unclear and untested. When you speak to your lawyer, be prepared for the lawyer to inform you about UGA issues for which there may be no answer, at least until a judge makes a ruling on the issue. It is likely Washington’s UGA will be modified throughout the 2020’s.
Part of the reason why this law is new, and may change, is that all states have struggled to enact nonparental custody laws which are consistent with the U.S. Supreme Court rulings. Parenting is a fundamental right. Like the right to free speech, own property, and own firearms, the right to parent is a strong right. Taking any such right away can only be done with appropriate legal procedures.
Please note, this article is not offering legal advice. This article is a summary of the portion of Washington’s Uniform Guardianship Act which addressed minor guardianship. The Act is complicated and there are many exceptions and nuances not covered in this article. This article is intended as a simplification of the law to help people who are just starting to ask questions about whether or not they might be able to obtain custody of a child who is not biologically their own.