Legal Question in Family Law in Washington

Re: Child Emotional Abuse

This is a tough area, especially for grandparents, given that their rights in this area are minimal. The backdrop to all this is Washington State's 3rd party custody statute, which has been gutted by the U.S. Supreme Court. One would think that with a Democratic governor, and a Democratically controlled legislature that this problem would have been dealt with, but the "800 pound gorilla" in the room is the issue of same sex marriage and gay parents and what rights they have.

My position on this is irrelevant, but your state representatives and governor have failed to produce legislation that deals with what the non-biological gay parent can do, and thus, everyone else, including grandparents are left on the sidelines.

Under current law, a grandparent must convince a court that both biological parents are unfit to do the job, and then they have a shot at custody.

In your situation, you should call CPS if you feel abuse is happening. If CPS finds in your favor then yes, I think you might wind up with at least temporary custody, depending on where mom is. If mom is otherwise capable and willing, she will be the first pick to take custody.

As for the child having a say, the answer is no. However, the child will have an indirect say at age 11, through a guardian ad litem ("GAL"). The GAL represents the child in the court proceedings and communicates to the court the child's wishes, rather than having the child attend hearings and be put in a difficult position to sometimes have to choose or criticize one parent over another.

Courts and the legislature have made is clear that no one wants to put a kid in a position to make choices between parents, in front of the whole world, in a public setting. That is too damaging to children, who already have it tough enough in divorce or other custody proceedings.

When the child expresses a preference for living with one parent over another, the GAL will consider this in making their recommendations for residential placement and visitation. The more articulate and mature the child, the more likely the GAL is to follow the child's wishes in making their recommendation. On the other hand, a 1 year old will not be asked or interviewed on such an issue.

There is no magic age at when to consider the child's opinion. Each situation should be taken on it's own. You may have an incredibly immature 11 year old who talks zero sense, in which case their opinion will be largely disregarded. On the other hand, you may have an incredibly mature and wise 8 year old whose opinion will be taken seriously because of the manner and basis for the child's preference.

I hope this helps at least explain things. If you need further professional consultation, please feel free to click on my name to call my office or click on the e-mail address below to request a consultation.