Grandparents' Rights in Washington State

Category of De Facto Parents Of Little Help to Grandparents

Grandmother holding her baby grandson on a beach in Washington State
Grandparents in Washington State have been without a working visitation statute for many years. sarahwolfephotography / Getty Images

Washington State currently has no operational statute for grandparent visitation. The Washington statute is still on the books, but it was found unconstitutional by the Washington Supreme Court in 2005. Efforts to pass statutes governing grandparent visitation failed in 2006. 

It was Washington State's visitation law that the U.S. Supreme Court struck down as "breathtakingly broad" in the 2000 landmark case of Troxel v. Granville, casting doubt on the visitation laws of almost every state.

In that case the court found that reasonable parents are presumed to make decisions that are in the best interests of their children. This presumption applies even when parents deny their children contact with grandparents. Thus the burden of proof is on the grandparents.

Washington State amended its laws, but the revised law was found unconstitutional by the Washington Supreme Court in 2005 in the case In re Parentage of C.A.M.A. The root of the problem is 5a of the revised law, which reads, "Visitation with a grandparent shall be presumed to be in the child's best interests when a significant relationship has been shown to exist." This presumption can be rebutted by a showing that visitation would harm the child physically, emotionally or mentally. 

This statute puts the presumption on the wrong foot, so to speak. It is a parent's decision that is presumed correct. In its decision, the Washington Supreme Court stated that the statute "unconstitutionally infringes on a fit parent's right to control visitation."

Many websites state that grandparents in Washington State have visitation rights and cite the laws that are still on the books, RCW 26.09.240. Those laws, however, are followed by a notation that they have been found unconstitutional and are invalid. 

Grandparents as De Facto Parents

In another 2005 case, In re Parentage of L.B.

, the Washington Supreme Court created the category of "de facto" parents. To show that one is a de facto parent requires the following:

  • The natural or legal parent consented to and fostered the parent-like relationship.
  • The petitioner and the child lived together in the same household.
  • The petitioner assumed obligations of parenthood without expectation of financial compensation.
  • The petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature.

One might speculate that a number of grandparents seeking visitation would fit these descriptors. In actuality, the category of "de facto parents" has been of little use to grandparents seeking visitation rights. Several factors have combined to reduce the impact of the ruling:

  • Because the case of "In re Parentage of L.B." involved a lesbian couple, some judges are reluctant to apply the principle of "de facto parents" to grandparents seeking visitation.
  • The courts clearly want a legislative solution, as indicated by the Washington Supreme Court's statement: "As such, based on our holdings in Smith and C.A.M.A., until the legislature amends the relevant statutes, there exists no statutory right to third  party visitation in Washington."

    Another case, In re Parentage of M.F., is widely considered to have weakened the concept of de facto parents. The person suing for de facto status was a stepfather. The court rejected his petition, basically saying that the child in question already had two parents, a ruling which will certainly hurt many Washington State grandparents suing for visitation rights.

    Current Situation Unacceptable for Grandparents

    As long as this situation in Washington remains unresolved, grandparents seeking visitation rights are in a position that some characterize as extremely difficult, while others say the difficulties are insurmountable.

    Washington State has an active support group working to remedy this situation. Grandparents' Rights of Washington State (GROWS) has monthly meetings, maintains a website and has a Facebook page.

    Repairing Relationships With Parents

    At this time, grandparents whose grandchildren live in Washington State must rely on the parents to provide access. The following pieces may be helpful in this effort: