IN RE CUSTODY OF SHIELDS, 21741-8-III.

• Decision Date: 12 February 2004
• Docket Number: No. 21741-8-III.,21741-8-III.
• Citation: 120 Wash.App. 108,84 P.3d 905
• Court: Washington Court of Appeals
• Parties: In re the CUSTODY OF Christian William SHIELDS, Jenny Shields, Respondent, and Susan Harwood, Appellant.

84 P.3d 905

120 Wash.App. 108

In re the CUSTODY OF Christian William SHIELDS, Jenny Shields, Respondent, and

Susan Harwood, Appellant.

No. 21741-8-III.

Court of Appeals of Washington, Division 3, Panel Eight.

February 12, 2004.

Gary R. Stenzel, Gary R. Stenzel PS, Spokane, WA, for Appellant.

Lee R. McGuire, Attorney at Law, Davenport, WA, for Respondent.

KURTZ, J.

Chris Shields is the only child of Michael Shields and Susan Harwood who divorced when Chris was three years old. Under the parenting plan, Chris was placed with his father by agreement of the parties and his mother was granted liberal visitation rights. When Chris was five years old, his mother moved to Oregon and his father remarried. Mr. Shields later adopted his wife's daughter, and the couple had a child of their own. When Chris was 11 years old, Mr. Shields died as the result of an accident. Upon learning of Mr. Shields's death, Ms. Harwood informed the Shields family that she would be taking Chris back to Oregon; Ms. Harwood, accompanied by a sheriff's deputy, took Chris from the Shields home the day after his father's funeral. Four days later, Ms. Shields filed this nonparent custody action. After a trial, the court granted custody of Chris to Ms. Shields and reinstated Ms. Harwood's visitation rights under the parenting plan.

Under RCW 26.10.030, a nonparent may commence an action seeking custody of a child "but only if the child is not in the physical custody of one of its parents or if the petitioner alleges that neither parent is a suitable custodian." The issue before us is the appropriate standard to be applied in custody litigation involving a parent and a nonparent. We hold the appropriate standard is parental unfitness or detriment to the child as stated in In re Marriage of Allen, 28 Wash.App. 637, 646-47, 626 P.2d 16 (1981). We further hold RCW 26.10.030 does not impose a standing requirement that mandates the court to enter a finding of parental unfitness before the case can proceed. Affirming the judgment of the trial court, we hold the trial court did not err by awarding custody of Chris to his stepmother.

FACTS

Chris Shields is the only child of Michael Shields and Susan Harwood. Chris's parents were married in 1989. Chris was born on November 14, 1990; his parents divorced in September 1994, when Chris was three years old. Under the parenting plan, Chris was placed with his father as the primary residential parent by agreement of the parties. His mother was granted liberal visitation.

In May 1995, Michael Shields and Jenny Wisecarver began dating. They were married in July 1996, when Chris was five years old. Ms. Shields had a daughter, Lea, who was eight years old at the time of the marriage. The next year, Mr. Shields adopted Lea. Two years later, Michael and Jenny had a son, Michael.

In 1996, Susan moved to Willamina, Oregon. She married Curt Harwood in January 1997. A new parenting plan was entered a few months later. Under the second plan, Susan's visitation was reduced from two full weeks each month to one weekend each month and changes were made in the Christmas schedule and the summer schedule. The court also entered an order of child support. The net support obligation of $112.20 was reduced to $25 per month in light of Susan's financial situation. From 1994 until this order was entered in May 1997, Susan did not make child support payments or contribute to Chris's expenses. Moreover, at the hearing she expressed dissatisfaction with the court's decision to set the amount at $25 per month.

Mr. Shields died as the result of an accident in August 2001, when Chris was 11 years old. At the time of his father's death, Chris had lived in the same house since 1991. This house was on a farm outside Lamont, Washington. The trial court later found that Chris "had extremely close ties with his extended family, neighbors and friends in the Lamont area his entire life." Clerk's Papers (CP) at 236.

Ms. Harwood had not been involved with Chris's daily rearing. Her visitation became sporadic soon after the couple divorced and telephone contact was irregular with long periods of time between contacts. At trial, Ms. Harwood estimated that she took advantage of 15 percent of the weekend visitations, but, with one exception, 100 percent of the major visitation weeks available during summer, spring break, and Christmas. However, during this time she had never asked for, or seen, Chris's report cards; she had attended one of Chris's teacher conferences, one of his ball games, and one of his concerts.

When Ms. Harwood learned of Mr. Shields's death, she immediately contacted the Shields family, asked them to pack Chris's belongings, and notified them that she intended to pick up Chris immediately and take him to Oregon. Ms. Harwood was eventually persuaded to wait a few days until after the memorial service so that Chris would be able to attend the service. One day after the memorial service, Ms. Harwood arrived to take Chris to Oregon. A deputy sheriff was present at Ms. Harwood's request, further traumatizing Chris. Chris did not want to go with Ms. Harwood, but was persuaded that he should go.

Five days after the funeral, four days after Chris left for Oregon, Ms. Shields filed this action, petitioning for nonparent custody of Chris. Contrary to the assertions of Ms. Harwood, Ms. Shields did not wait until spring 2001 to file her petition. The court appointed Dennis Cronin as Guardian Ad Litem (GAL) and later entered an order clarifying the duties of the GAL.¹

Prior to Mr. Shields's funeral, Ms. Shields took Chris to a grief counseling session with Dr. Frank Hamilton in Spokane. Dr. Hamilton also saw Chris in February and March 2002. Dr. Hamilton concluded that Chris was emotionally close to his stepmother and that there was a strong bond between them. Dr. Hamilton also noted that Chris considers his home to be in Lamont, Washington, and that his family consists of his stepmother and his two siblings. Dr. Hamilton concluded that these bonds were stronger than Chris's bonds to his mother.

Approximately six weeks after his moving to Oregon, Chris met with a social worker, Jeri Merkle. Ms. Merkle spent 31 hours with Chris over a 14-month period. Sixteen of those hours were sessions with Chris or various combinations of Chris, his mother, and his stepfather. The remaining sessions were with another person through the Mother Oaks treatment program.

Ms. Harwood took Chris to Oregon in August 2001. Chris had no personal contact with his stepmother or his siblings from September 2001 until April 2002. During December, Ms. Harwood restricted Chris's telephone contact with his family in Lamont.

Trial in this matter was held in November 2002 at which time the court was presented with the testimony of Ms. Shields, Ms. Harwood, Mr. Harwood, Mr. Cronin, and Ms. Merkle. The court also interviewed Chris in chambers.

In his testimony, Mr. Cronin stated Chris was strongly bonded to Ms. Shields as his primary psychological parent and, by contrast, he perceived Ms. Harwood as "uncaring for his needs, unfair, hostile to his family in Washington, cruel, and punitive." CP at 207. Mr. Cronin also reported that Chris considered his true home to be Lamont, Washington, and his family unit as comprising of his stepmother, his half brother, and his half sister. Mr. Cronin noted that while Chris did not dislike Ms. Harwood, he was very frustrated by her perceived failure to appreciate his needs and desires. Mr. Cronin concluded that Chris strongly desired to reside in Washington with his stepmother and siblings.

Furthermore, Mr. Cronin expressed surprise that, when he met with Chris in January 2002, Chris had not had any physical contact with Ms. Shields and his siblings since August 2001. Chris told Mr. Cronin that Ms. Harwood had taken away all telephone contact with his relatives in Washington for the month of December. Mr. Cronin concluded that Ms. Harwood had arbitrarily restricted contact between Chris and his stepmother and siblings. In his report, Mr. Cronin also noted that Dr. Hamilton expressed concern that Chris, as he entered adolescence, would be more likely to act out in anger and frustration in the home in Oregon as opposed to the home in Washington. At trial, Mr. Cronin testified that both he and Dr. Hamilton felt that actual detriment would occur if Chris was required to live away from his psychological parent, Ms. Shields, and his siblings. Mr. Cronin recommended that Chris be allowed to reside with his stepmother and siblings in Washington with reasonable visitation with his mother and stepfather in Oregon.

Ms. Merkle testified that she met with Chris from September 2001 until June 2002. She further stated that the sessions were cancelled after Chris returned from his visitation to Washington because "things were going along well." Report of Proceedings (RP) at 146. Ms. Merkle had another session with Chris shortly before the trial because he had a "slump" that she attributed to the court case. RP at 154.

Ms. Merkle testified that when she first met Chris, he held his mother in disdain. Ms. Merkle stated that while Chris was adamant then that he did not want to be with his mother, this feeling had diminished over time. She believed Chris was now beginning to view Oregon as his home and, if asked for a decision about where he wanted to live, he would now respond that he did not know. According to Ms. Merkle, Chris had made progress during the year he had resided in Oregon. She saw evidence that he had progressed to the point where he was able to formulate a life of his own.

Although Ms. Merkle met with Chris for 16 sessions, Chris never mentioned his siblings to her. Ms. Merkle attributed this omission to the fact that issues concerning his family constellation were overwhelming to him. Ms. Merkle noted that Chris had an emotional attachment with his stepmother and that he talked about her in a way of "close emotional...