IN RE CUSTODY OF EATW

• Decision Date: 25 February 2010
• Docket Number: No. 81945-9.,81945-9.
• Citation: 168 Wash.2d 335,227 P.3d 1284
• Court: Washington Supreme Court
• Parties: In re CUSTODY OF E.A.T.W. and E.Y.W., Children, Vito A. and Yasuko Grieco, Petitioners, v. Sachi Wilson, Respondent.

227 P.3d 1284
168 Wash.2d 335

In re CUSTODY OF E.A.T.W. and E.Y.W., Children,
Vito A. and Yasuko Grieco, Petitioners,
v.
Sachi Wilson, Respondent.

No. 81945-9.

Supreme Court of Washington, En Banc.

February 25, 2010.

227 P.3d 1285

Catherine Wright Smith, Valerie a Villacin, Edwards Sieh Smith & Goodfriend P.S., Cynthia

227 P.3d 1286

B. Whitaker, Law Offices of Cynthia B. Whitaker, Seattle, WA, for Petitioners

Patricia S. Novotny, Nancy Hawkins, Attorneys at Law, Seattle, WA, for Respondent.

J.M. JOHNSON, J.

¶ 1 Vito and Yasuko Grieco brought a nonparental custody action for permanent custody of their two grandsons, E.A.T.W. and E.Y.W., under chapter 26.10 RCW. The superior court found adequate cause to proceed to a hearing on the Griecos' petition based solely on the boys being in the Griecos' custody for several years. Sachi Wilson, the boys' father, argues RCW 26.10.032 also requires the Griecos to set forth facts establishing cause for an order on the merits before any hearing may occur.

¶ 2 We hold that RCW 26.10.032 requires a superior court judge to deny a hearing on a motion for a third party custody order unless the nonparent submits an affidavit (1) declaring the child is not in the physical custody of one of its parents or neither parent is a suitable custodian and (2) setting forth facts supporting the requested custody order. The facts supporting the requested custody order must show adequate cause that the parent is unfit or that placing the child with the parent would result in actual detriment to the child's growth and development. We remand to the superior court for an adequate cause determination based on the correct legal standard.

FACTS AND PROCEDURAL HISTORY

¶ 3 JoAnn Grieco and Sachi Wilson (formerly known as Thornton Arnold Wilson) married and had two children. E.A.T.W. was born in 1990 and E.Y.W. was born in 1995. JoAnn was diagnosed with breast cancer in 1995, and by 2000 her cancer had metastasized. The couple separated in August 2002, and JoAnn and the children remained in the family residence. Wilson continued to have contact with the boys and stayed involved in their lives.

¶ 4 During the summer of 2003, JoAnn's illness became disabling and her parents, the Griecos, moved in with JoAnn to help take care of her and the boys. Wilson claims he was rarely able to spend time with his sons after the Griecos moved in with JoAnn. However, after JoAnn temporarily recovered, her parents moved out. JoAnn and Wilson reached an agreement allowing him to spend more time with his sons. In September 2003, Wilson moved to San Diego, California, with a woman he had known for a number of years.

¶ 5 In 2004, Wilson filed for dissolution of marriage. However, he decided not to pursue the dissolution after JoAnn had another recurrence of cancer. Accordingly, no parenting plan was ever established. The Griecos moved back in with their daughter and grandsons in 2004 and remained with them until JoAnn's death in October 2004.

¶ 6 After JoAnn's death, Wilson consented to allow the boys to continue to live in the family home with the Griecos in order to provide stability and minimal disruption. In November 2004, Wilson prepared and signed a notarized authorization allowing the Griecos to make all medical care decisions regarding his sons.¹ Clerk's Papers (CP) at 10. In February 2005, Wilson signed an authorization giving the Griecos authority over school and activities matters. CP at 13. However, the authorization specifically stated it should not be construed as a relinquishment of the father's rights as a parent. Id.

¶ 7 According to Wilson, the Griecos marginalized him in the boys' lives and tried to withhold his sons from him. The Griecos contend Wilson would demand to see the boys without giving them sufficient notice. In order to address these and other problems, Wilson and the Griecos entered into an "Agreement Regarding the Welfare and Residential Placement of E.A.T.W. and E.Y.W." in February 2006. CP at 16-19. They agreed that under the existing circumstances, the boys should continue to stay in the family home with the Griecos. They also agreed that it was in the boys' best interests to have regular contact and liberal communication with Wilson. It was agreed that Wilson's contact information should appear in,

227 P.3d 1287

and that he should have access to, all medical and school records, and that the Griecos would seek his input before making any major decisions about the boys. However, this agreement did little to alleviate the earlier problems, and the parties continued to disagree over Wilson's communication and contact rights

¶ 8 In October 2006, the Griecos filed a petition to establish de facto parentage or nonparental custody under chapter 26.10 RCW. In regard to nonparental custody, the petition alleged the boys were not in the physical custody of either parent and had been in the sole custody of the Griecos since the death of JoAnn in 2004. The petition cited the February 2006 agreement and noted that the parties had agreed the children should live with the grandparents. The petition requested an order finding adequate cause to proceed with the nonparental custody action.

¶ 9 The Griecos filed a motion and declaration asking the court to find adequate cause to proceed with the nonparental custody action. The declaration in support of the motion noted Wilson's move to California in 2002 and that the Griecos had cared for the boys since 2003 (exclusively since JoAnn's death in 2004). The Griecos also relied on the medical and school authorizations, as well as the 2006 agreement. In response, Wilson argued that although he had agreed the boys should continue to live with their grandparents after JoAnn's death, the situation was not permanent.

¶ 10 A superior court commissioner found adequate cause for a hearing on the nonparental custody petition. The commissioner's order stated that adequate cause was established "based on the fact that the children are in the physical custody of the grandparents and have been for a few years and it would be detrimental to remove them from the grandparents sic care." CP at 53. Wilson sought revision of this order but the court denied the motion, concluding that the "court only needs to find, under chapter 26.10RCW, that the children are not in the custody of parents to find adequate cause." CP at 61. The order also stated that because the "court cannot determine issues based on written materials, trial is necessary." Id.

¶ 11 Wilson sought discretionary review of the commissioner's order and the superior court's denial of the motion to revise. The Court of Appeals granted discretionary review and denied the Griecos' motion to modify the ruling granting review. The Griecos then moved to supplement the adequate cause findings in the nonparental custody action. Wilson filed a motion to strike the Griecos' request, and the superior court commissioner granted Wilson's motion. CP at 226-27. The Griecos filed a motion to revise the commissioner's decision, which was denied by the superior court. The court reiterated that it had found adequate cause based on the boys' being in the Griecos' custody, which it said was legally sufficient under the statute. The court stated it could not make a finding regarding actual detriment based on the parties' affidavits. See Verbatim Report of Proceedings (Aug. 9, 2007) at 20-21.

¶ 12 On review, the Court of Appeals determined the trial court erroneously interpreted the requirements of RCW 26.10.032 by determining the Griecos established adequate cause based solely on the fact that the children were not in the physical custody of a parent. The court reversed the superior court's order finding adequate cause to proceed with the nonparental custody action under chapter 26.10 RCW and dismissed that claim.² Grieco v. Wilson, 144 Wash.App. 865, 184 P.3d 668 (2008). The Griecos appealed and we granted review. In re Custody of Wilson, 165 Wash.2d 1015, 199 P.3d 411 (2009). We agree with Division One of the Court of Appeals that RCW 26.10.032 cannot be satisfied solely by lack of the parent's physical custody of the children and remand to the superior court for an adequate cause determination based on the appropriate standard.

ANALYSIS

¶ 13 In 2003, the legislature amended the nonparental custody statute, requiring a threshold determination of adequate cause

227 P.3d 1288

prior to a hearing on a third party nonparental custody petition. Under RCW 26.10.032:

(1) A party seeking a custody order shall submit, along with his or her motion, an affidavit declaring that the child is not in the physical custody of one of its parents or that neither parent is a suitable custodian and setting forth facts supporting the requested order. The party seeking custody shall give notice, along with a copy of the affidavit, to other parties to the proceedings, who may file opposing affidavits.

(2) The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order should not be granted.

(Emphasis added.) We must determine what requirement is imposed on third party petitioners by this statute. Wilson argues, and Division One of the Court of Appeals held, that under RCW 26.10.032 the nonparent "must set forth factual allegations that, if proved, would establish that the parent is unfit or the child would suffer actual...