Since 1998, relatives of a child in Washington have had no right to visitation with that child over the objection of the child’s parents. (See Beating A Dead Horse: The Continuing Demise of Grandparent Visitation.) Effective June 7, 2018, Washington has a new relative-visitation statute.

Prior to 1998, Washington’s visitation statute provided for visitation of “any person” with the child if that visitation was in the child’s “best interest.” The Washington Supreme Court struck down the statute as unconstitutional in In Re Custody of Smith, stating that the statute did not give proper deference to the child’s parents in deciding with whom the child should visit. Smith was appealed to the United States Supreme Court, which affirmed the Washington Supreme Court in Marriage of Troxel, but on a narrower ground. The Washington legislature has taken 20 years to replace the old visitation statute with one that appears to comply with the United States Constitution.

However, before grandparents and other relatives rejoice, they should consider the statute’s restrictions. These restrictions are designed to comport with the constitutional mandate. In order to prevail, the relative petitioning for visitation must establish that:

1. The relative and the child have an “ongoing and substantial relationship.” A relative can do so if the relative and child have had a substantial relationship for at least two years, or one-half of the child’s life, whichever is less;
2. The child is likely to suffer harm or a risk of substantial harm if visitation is denied; and
3. The proposed visitation is in the best interest of the child.

The court is required to consider the reasons why the parent has denied visitation. The relative must prove “by clear and convincing evidence” that the child will likely suffer harm or a substantial risk of harm without the visitation before ordering visitation over the objection of a parent. A relative also must prove “by clear and convincing evidence” that the proposed visitation is in the child’s best interest. The statute lists several factors for the court to consider when determining what the child’s best interest is.

The “clear and convincing evidence” standard is a high standard similar to “beyond a reasonable doubt” in criminal cases. While many civil matters are decided by “a preponderance of the evidence,” which essentially means “more likely than not,” the “clear and convincing evidence” standard requires much more clarity. A judge would have to be clearly convinced of the harm or potential harm to the child and of the child’s best interest. This is a high bar for a relative to clear.

There are some questions that the statute has not answered. First, it is not clear how a court should consider the situation where a parent has stopped visitation with a relative some time ago. The relative must prove an ongoing and substantial relationship. Yet, the statute requires proof that the “ongoing and substantial relationship” existed or “existed before action by the respondent [parent].” In practice, there may be no continuing harm to a child due to a lack of visitation with a relative when no visitation with that relative has occurred for some time. So the exact interpretation of the “ongoing and substantial relationship” prong may not be interesting in practice.

Second, it is not clear whether an “ongoing and substantial relationship” requires the two-year period. The statute states that a relative “has established an ongoing and substantial relationship” if the two-year period exists, but does not say that the two-year period is required. This language leaves open the possibility that establishment of such a relationship might be possible without the full two-year period. I suspect, however, that courts will determine that the full two-year period (or one-half of the child’s life) is required.

Will this statute withstand a constitutional challenge? It tracks very closely to In Re Custody of Smith as if the drafter of this statute went through the Smith opinion as he or she wrote the new law. So this new law should satisfy the Washington Supreme Court.

Marriage of Troxel rested on the narrower ground of giving deference to a fit parent and declined to consider whether a showing of harm to the child is required. One could perhaps argue that the new statute does not give enough deference to a fit parent. Presumably a parent is not fit if the parent causes harm to his or her child by cutting off visitation with a relative. The statute’s requirement of clear and convincing evidence before visitation is ordered over a parent’s objection should satisfy the United States Supreme Court.

Overall, this statute places a high burden on the relative to show that the parents are harming a child by cutting off visitation with the relative. There may be only rare instances where a parent can satisfy this burden. While relatives, such as grandparents, finally have an avenue to seek visitation with a child, that avenue is of limited use.

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