Custody of Smith, In re

Decision Date24 December 1998
Docket Number65699-1,STILLWELL-S,Nos. 65605-3,66207-0,s. 65605-3
Citation137 Wn.2d 1,969 P.2d 21
CourtWashington Supreme Court
PartiesIn re the CUSTODY OF Sara Skyanne SMITH. Edison Smith, et al., Respondents, v. Kellymith, Appellant. In re Visitation Rights with Justin Ross Wolcott, David L. Clay, Petitioner, and Lisa Wolcott, Respondent. In re the Visitation of Natalie Anne Troxel, Isabelle Rose Troxel, Minors, Jenifer Troxel and Gary Troxel, Paternal Grandparents, Petitioners, and Tommie Granville, Mother, Respondent.

Weber & Gunn, Kenneth W. Weber, Vancouver, Amicus Curiae on behalf of Kenneth Weber.

Cathy J. Zavis, Patricia Novotny, Seattle, Amicus Curiae on behalf of Northwest Women's Law Center.

Christon Skinner, Oak Harbor, for Appellant.

Mark Olson, Seattle, David Metcalf, Everett, for Petitioner.

Catherine Smith, Howard Goodfriend, Seattle, Kenneth Masters, Bainbridge Island, for Appellant Stillwell-Smith and Respondent Granville.

Claire Reiner, Anacortes, Guardian Ad Litem.

Mark Theune, Oak Harbor, Grace Wagner, Everett, for Respondent.

MADSEN, J.

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 Wash.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 mother went to Brian's home and shot him. Brian fired back, and they were both killed. A dispute then developed between Stillwell and Brian's surviving family members (his parents, brother, and sister) regarding when and to what extent Sara should have contact with them. Consequently, the Smith family petitioned for visitation rights with Sara. Following a trial held in April 1997, the trial court granted the petition, under former RCW 26.09.240, and established a visitation schedule. Stillwell appealed the order to Division One of the Court of Appeals. The court granted the Smiths' motion to transfer the appeal to this court. All three cases were consolidated for review.

DISCUSSION

The parties in this case sought visitation rights pursuant to RCW 26.10.160(3) and former RCW 26.09.240, both of which address visitation rights of nonparents. RCW 26.10.160(3) provides:

Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.

Former RCW 26.09.240 (prior to 1996 amendments) provides:

The court may order visitation rights for a person other than a parent when visitation may serve the best interest of the child whether or not there has been any change of circumstances.

A person other than a parent may petition the court for visitation rights at any time.

The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child.

The question before this court is whether a nonparent petitioner has standing pursuant to RCW 26.10.160(3) or former RCW 26.09.240 to petition for visitation with a child outside the context of custody or dissolution proceedings. Even if the nonparent petitioners do have standing to sue, appellant, Kelly Stillwell, argues that the statutes impermissibly violate a parent's fundamental right to autonomy in child-rearing matters.

STANDING

At issue in each of these cases is whether RCW 26.10.160(3) and former RCW 26.09.240 permit a nonparent to seek visitation in the absence of a custody proceeding. The parents argue that the question should be answered in the negative and ask this court to find that the individuals who petitioned for visitation rights lack standing under the applicable statutes. The petitioners respond stating that the plain meaning of RCW 26.10.160(3) and former RCW 26.09.240 allow them to petition for visitation absent a custody proceeding noting that both statutes allow "any person" to petition for visitation at "any time." We hold that the plain language of the statutes gives Clay and the Troxels standing to petition for visitation rights under RCW 26.10.160(3) and the Smiths standing to petition for visitation under former RCW 26.09.240.

In answering the question before this court we must interpret the meaning of RCW 26.10.160(3) and former RCW 26.09.240. We review questions of statutory construction de novo. Our Lady of Lourdes Hosp. v. Franklin County, 120 Wash.2d 439, 443, 842 P.2d 956 (1993). The purpose of statutory interpretation is to determine and give effect to legislative intent. Duke v. Boyd, 133 Wash.2d 80, 87-88, 942 P.2d 351 (1997). Legislative intent is primarily determined from the statutory language. Id.

When the words in a statute are clear and unequivocal, this court is required to assume the Legislature meant exactly what it said and apply the statute as written. Although the court should not construe statutory language so as to result in absurd or strained consequences, neither should the court question the wisdom of a statute even though its results seem unduly harsh.

Id. at 87, 942 P.2d 351 (citations omitted). This court has emphasized that it will not construe unambiguous language and that it "assume [s] that the legislature means exactly what it says." State v. McCraw, 127 Wash.2d 281, 288, 898 P.2d 838 (1995) (quoting Sidis v. Brodie/Dohrmann, Inc., 117 Wash.2d 325, 329, 815 P.2d 781 (1991)).

Both RCW 26.10.160 and RCW 26.09.240 address the rights of nonparents to seek visitation with a child. Both statutes have been amended several times, most recently in 1996. As originally enacted in 1973, as part of a chapter having mainly to do with parenting plans in dissolution actions, former RCW 26.09.240 provided that a parent not granted custody of a child is entitled to reasonable visitation rights unless visitation would endanger the child's health. It also said, "[t]he court may order visitation rights for any person when visitation may serve the best interest of the child." Laws of 1973, 1st Ex.Sess., ch. 157, § 24. In 1976, the Court of Appeals held the phrase "any person" did not authorize trial courts to grant visitation rights to "third person," including grandparents, absent a change of circumstances, such as death of one or both parents or termination of the nuclear family unit. Carlson v. Carlson, 16 Wash.App. 595, 597, 558 P.2d 836 (1976).

The following year, the Legislature amended RCW 26.09.240 to read: "The court may order visitation rights for any person when visitation may serve the best interest of...

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