The Transition from Non-Parental Custody to Minor Guardianship

By Commissioner Craig Adams, Pierce County Superior Court.  

The Washington state legislature affected a wholesale change in the law when it enacted the Uniform Guardianship Act (UGA), RCW 11.130 et seq.

One of the most significant changes was the adoption of Article 2 of that Uniform Act. Article 2 has forever changed the landscape of how the parties and courts are to deal with the “care, custody and control” of minor children who may not be, or perhaps should not be, in the custodial care of a parent.

Heretofore, Washington had RCW 26.10 which directed how such actions were to proceed, both as original actions or in modification of those actions. There was a fairly good body of case law and the processes and substantive law were well defined. That statute was revoked and has been supplanted by the UGA. One of the problems is that Washington is the only state to have adopted the UGA so there is no case law to guide us.

As a consequence, this article is not designed to be a complete synopsis or “how to” manual. Rather this is to provide a series of signposts that hopefully will guide you to a more successful presentation of your case.

THIS IS NO LONGER CUSTODY:

These actions are not designed to grant “custody”. Disabuse yourself of the concept of custody. This is guardianship. These are no longer family law matters as defined by RCW 26.26.172. As a result, programs such as seminars like “Impact on Children” are no longer required. But it might be a good idea to send a client to such a seminar in spite of it no longer being required!

FILING FEE WAIVER:

If the Petitioner is related by blood or marriage to the minor child the filing fee is waived.

FILING A CONFIDENTIAL INFORMATION FORM:

When you file a family law type action you are required to file a Confidential Information sheet with the clerk. That form has important identifying information that is of great assistance to the court. While the filing of that form is not mandated, it is greatly appreciated by the court and helps streamline the process.

FILING OF PETITION:

You no longer have to make a threshold finding of adequate cause but you must establish that there is no parent who is willing or able to exercise the parenting functions set forth in RCW 26.09.004 and that it is in the best interest of the minor child to be under the guardianship of Petitioner. The legal question that must be answered is: this tests the functional equivalent of the test approved in Troxel v. Granville, 530 U.S. 57 (2000)(saying that parents had a fundamental right to parent their child absent findings of unfitness). So you must show that the unwillingness or inability of a parent to perform parenting functions (all? some? Which ones?) is tantamount to unfitness as indicated by the Supreme Court.

SUMMONS:

Yes, you have to file and serve a Summons. This is different from the regular practice under Guardianship law but does comply with CR 4.

SUPPLEMENTAL DECLARATION:

The statute sets out that you must file and serve (in some cases) a Supplemental Declaration setting forth the factual reasons advanced for how and why no parent is willing or able to perform parenting functions and why the guardianship is in the best interest of the minor child. This is your chance to clearly articulate the factual reasons for the guardianship and should be an exercise in advancing every available fact about “unfitness”. You must clearly establish unfitness before even getting to the issue of “best interest” but you must address both.

NOTICE OF HEARING:

This might be unknown to those who practice primarily family law, but the concept of Notice of Hearing is a vestige of guardianship practice. The Notice of Hearing must be served (long list of parties to serve is set out in the statute) no sooner than 14 days of filing but is silent on how long out after filing it may or must be served. The Notice of Hearing may be used as a tool to get the parties before the court and to frame the issues to be determined and resolve issues such as appointment of Visitors, Attorneys, etc.

SERVICE:

The statute is not a model of clarity on service or the giving of notice. Interestingly the statute seems to give the court the power to excuse service on a parent if the parent cannot reasonably be located. This concept seems to squarely violate the doctrine of jurisdiction over the person and should not seriously be considered without authority from the Supreme Court. Note that RCW 4.28.100 was not changed and ostensibly does not allow for service by mail or publication of these kinds of actions but RCW 11.130.195(1)(b)(i) seeming would allow for service by mail or other action reasonably calculated to give notice (could that include delivery by electronic means? Publication? Other?).

PARENTAGE CASES:

It has been said that maternity is a matter of fact and paternity a matter of surmise. Trying to rely on surmise will not get your client the relief they want! If you are representing a “father” make sure that you have filed a copy of the birth certificate or order adjudicating paternity, otherwise your client is not a “parent” and may not be entitled to service or notice.

EMERGENCY:

An emergency petition may be filed as a “stand alone” petition without any other petition being filed or may be filed in conjunction with a regular petition. You may file under a separate cause number but best practice, at least in Pierce County, is to file both Petitions in same action. If you file a standalone Petition and it is denied it will be both a denial and dismissal. You must then refile the whole thing again if it was your intent to continue.

It MUST be a real emergency! The statute says that you must show a substantial harm to the minor’s health, safety or welfare AND no other person has the authority and willingness to act. What if you have one parent who is incapable by virtue of drug addiction and mental illness and the other parent, who has not seen the child in more than 10 years says: “hey, I am a parent and I am willing and able to care for my child”. You must be very cautious in bringing emergency actions or you may wind up with something you had not contemplated.

An emergency order may be good for 60 days and may be extended for another 60 days or in some cases may be good for the pendency of the case, RCW 11.130.225(7).

VISITORS, GALS AND ATTORNEYS:

Family law practitioners should be familiar with the concept of appointing a GAL to do a separate “investigation”. Under this statute it has largely been supplanted by a Court Visitor (also called a Visitor). The Visitor MUST be appointed in certain situations (minor child over 12, parent cannot be located, etc.) and they have very defined duties. A GAL is only appointed rarely and for a specifically defined purpose. Attorneys may be appointed for the minor and may be appointed for a parent but are required to be appointed for a parent if the parent is indigent and objects to the appointment of a guardian.

TEMPORARY ORDERS:

This is a complete change from Family Law Practice. A typical family law order with children will have a designation of “custodian” and, more often than not, a Temporary Parenting Plan. Under the UGA there is no custodian or custody determination and the court cannot enter temporary orders providing for custody. Likewise, there is no provision for a Temporary Parenting Plan or Residential Schedule. The statute does allow for standard “restraining” type orders, temporary child support and the like, but not custody!

CLOSED HEARINGS/SEALED RECORDS

There are some provisions which seemingly mandate closed hearings and sealed records. Be very wary of these sections and refer to GR 15 and case law such as Seattle Times v. Ishikawa or Bone-Club before advancing arguments to close hearings or filing sealed records.

FINAL ORDERS:

In making a final order the court is to enter an order preserving the parent-child relationship (does not say how—does the court enter a Parenting Plan or Residential Schedule?).

LETTERS OF OFFICE:

If the court grants guardianship the Clerk is directed to issue Letters of Office (used to be called Letters of Guardianship!). Note that if there is less than full guardianship and are limitations on the authority of the Guardian that these “restrictions” are not on the Letters of Office; rather, they are on the order.

MODIFICATION PROCESS:

In a family law case everyone knows that you must establish adequate cause with a showing of substantial change in circumstances. Under the UGA there is no statutory direction to RCW 26.09.260–.270. There is no set template or direction to follow. The burden of proof is also not articulated. All the statute effectively says is that the reason for the Guardianship has ended. That may be ended in law (minor turns 18) or by fact (parent goes through drug treatment and is now clean and sober with housing). The problem arises from the cases that are not that easy or clear cut. Moreover, they are confounded by the nature of the original order: was it done by default? By stipulation? Or did the case go to trial? You should likely consider the case law under RCW 26.10 as helpful to the analysis of how to proceed.

ENFORCEMENT:

Attorneys who do family law matters are well acquainted with contempt and the requirements of RCW 26.09.160. Under the UGA you would have to use RCW 7.21 which has different proof and no longer has the requirement of showing “bad faith”.

OTHER LAWS:

The statute expressly sets out that ICWA, and the UCCJEA apply, as well as the Relocation Act. It is not clear if the Hague Convention has application. Many cases under the Hague Convention indicate that it is not “abduction” if the order does not confer custodial rights because there can be no wrongful removal if not violating someone’s custodial rights. Care should be taken to carefully draft in language relative to habitual residence of minor child and other hallmarks of “custodial rights” even though this is not a custody order!

THE ODD BALL STATUTE, RCW 11.130.910(2).

(2) A guardianship, conservatorship, or protective arrangement instead of a guardianship or conservatorship in existence on January 1, 2022, unless the court finds application of a particular provision of chapter 437, Laws of 2019 would substantially interfere with the effective conduct of the proceeding or prejudice the rights of a party, in which case the particular provision of chapter 437, Laws of 2019 does not apply and the superseded law applies.

Seemingly this statute may allow the court to apply a “superseded law” if the application of the new law would prejudice a party or interfere with the effective conduct of a proceeding. Does this allow a Judge to “pick and choose” parts of the law to apply and part to ignore? And, how do you use “superseded law” as viable substantive law?

CONCLUSION:

This article only sought to provide you some “guardrails” and to highlight key issues for keeping you on track for these kinds of cases. The reality is that you must read the entire statute carefully, make sure you have sufficient facts to support a guardianship and think analytically before filing and proceeding. There are ample pitfalls in this new law and prudent counsel should carefully evaluate their case and approach to resolution on behalf of their client.