Washington Supreme Court clarifies standard for nonparental custody petitions

In re Custody of: E.A.T.W. and E.Y.W., No. No. 81945-9 (Wash. Feb. 25, 2010)

J.M. JOHNSON, J. — Vito and Yasuko Grieco brought a nonparental custody action for permanent custody of their two grandsons, E.A.T.W. and E.Y.W., under chapter 26.10 RCW. The superior court found adequate cause to proceed to a hearing on the Griecos’ petition based solely on the boys In re Custody of Wilson, No. 81945-9 being in the Griecos’ custody for several years. Sachi Wilson, the boys’ father, argues RCW 26.10.032 also requires the Griecos to set forth facts establishing cause for an order on the merits before any hearing may occur.

We hold that RCW 26.10.032 requires a superior court judge to deny a hearing on a motion for a third party custody order unless the nonparent submits an affidavit (1) declaring the child is not in the physical custody of one of its parents or neither parent is a suitable custodian and (2) setting forth facts supporting the requested custody order. The facts supporting the requested custody order must show adequate cause that the parent is unfit or that placing the child with the parent would result in actual detriment to the child’s growth and development. We remand to the superior court for an adequate cause determination based on the correct legal standard.