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In re Smith12/24/1998
Oral Argument Date: 03/11/98
Ad Litem EN BANC
The issues presented in these three consolidated cases are whether petitioners had standing to petition for visitation under either RCW 26.10.160(3) or former RCW 26.09.240 and whether these statutes violate the parents' constitutionally protected interest in raising their children without state interference. We conclude petitioners have standing but, as written, the statutes violate the parents' constitutionally protected interests. These statutes allow any person, at any time, to petition for visitation without regard to relationship to the child, without regard to changed circumstances, and without regard to harm.
STATEMENT OF THE CASE
Wolcott. Justin Wolcott was born April 10, 1986. After Justin was born, Justin's mother, Lisa, began a relationship with David Clay. The three lived together from May 1988 until 1992. After Wolcott and Clay separated, Clay continued to see Justin. However, relations between Wolcott and Clay deteriorated and, in November, Clay petitioned pursuant to RCW 26.10.160(3) to establish visitation rights with Justin. A court commissioner entered a temporary order allowing visitation every other weekend. On motion for revision, Judge Wilson reduced visitation to one Saturday per month. Wolcott appealed that order to Division One, arguing that Clay lacked standing to seek visitation. Commissioner Ellis dismissed the appeal because no final appealable order had been entered. He also found no obvious or probable error and denied discretionary review.
Following a trial in October 1995, Judge Hansen dismissed Clay's petition for visitation holding that Clay lacked standing to seek visitation because he is not related to Justin and no custody action was pending. The court awarded Wolcott her attorneys fees. The Court of Appeals affirmed and awarded Wolcott additional attorneys fees for the appeal. In re Visitation of Wolcott, No. 37883-0-I, slip op. at 11 (Wash. Ct. App. Mar. 24, 1997). Clay sought and was granted review by this court.
Troxel. Natalie and Isabelle Troxel are the daughters of Brad Troxel and Tommie Granville, who never married. After their separation, Brad lived with his parents, Jenifer and Gary Troxel, and the girls visited their father at their grandparents' home on occasion. Brad committed suicide in May, 1993. At first the girls continued to visit the Troxels regularly, but their mother soon decided to limit visitation. In December 1993, the Troxels filed a petition pursuant to RCW 26.10.160(3) and former RCW 26.09.240 to obtain visitation rights with their grandchildren. In 1995, the trial court entered a visitation decree ordering visitation one weekend per month, one week during the summer, and four hours on each of the Troxels' birthdays. Granville appealed, during which time she married Kelly Wynn, who adopted the girls in February 1996. The Court of Appeals remanded for entry of findings of fact and Conclusions of law, which were entered in January 1996.
The Court of Appeals subsequently reversed the visitation order and dismissed the Troxels' petition for visitation holding that nonparents lack standing to seek visitation unless a custody action is pending. In re Visitation of Troxel, 87 Wn. App. 131, 940 P.2d 698 (1997). The Troxels sought and were granted review by this court.
Smith. Brian Smith and Kelly Stillwell were married in 1989. In 1992, Stillwell gave birth to daughter, Sara, conceived through artificial insemination (Brian was not the donor). In 1995, Stillwell petitioned for dissolution of the couple's marriage. Both parties sought custody of Sara. On February 25, 1996, Stillwell's
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