Of v. Holt

• Decision Date: 27 November 2013
• Docket Number: No. 86895–6.,86895–6.
• Citation: 179 Wash.2d 224,315 P.3d 470
• Court: Washington Supreme Court
• Parties: In the Matter of the CUSTODY OF B.M.H. Michaelholt, Respondent, v. Laurie Holt, Petitioner.

179 Wash.2d 224

315 P.3d 470

In the Matter of the CUSTODY OF B.M.H.Michaelholt, Respondent,

v.Laurie Holt, Petitioner.

No. 86895–6.

Supreme Court of Washington, En Banc.

Nov. 27, 2013.

Catherine Wright Smith, Valerie A. Villacin, Smith Goodfriend PS, Robert M. Vukanovich, Attorney at Law, Vancouver, WA, Seattle, WA, for Petitioner.

Carolyn Marie Drew, Attorney at Law, Vancouver, WA, Patricia S. Novotny, Attorney at Law, Seattle, WA, for Respondent.

Jean Weil Waller, Family Matters PLLC, Longview, WA, Sarah Elizabeth Lysons, Perkins Coie, Katherine Deweese Bennett, Perkins Coie LLP, Seattle, WA, Bobbe Jean Bridge, Center for Children & Youth Justice, Seattle, WA, David J. Ward, Legal Voice, Seattle, WA, Christine J. Kim, Perkins Coie LLP, Seattle, WA, Amicus Curiae on behalf of Center for Children & Youth Justice & Jean Waller Legal Voice.

Sarah A. Dunne, ACLU of Washington Foundation, Seattle, WA, Nancy Lynn Talner, Attorney at Law, Seattle, WA, Cheryl Kleiman, Attorney at Law, Pittsburgh, PA, Amicus Curiae on behalf of Aclu.

GONZÁLEZ, J.

¶ 1 B.M.H.'s natural father died six months before he was born. His mother's former boyfriend, Michael Holt, was present at B.M.H.'s birth and, shortly afterward, married his mother, Laurie Holt. Mr. Holt has petitioned for third party custody under chapter 26.10 RCW or, alternatively, an adjudication of de facto parentage. The primary question for review is whether, under In re Parentage of M.F., 168 Wash.2d 528, 228 P.3d 1270 (2010), no former stepparent may bring a de facto parentage petition. We are also asked to decide whether there was adequate cause to support Mr. Holt's nonparental custody petition.

¶ 2 We find Mr. Holt has not met the high burden imposed on those seeking third party custody. However, we find he is entitled to maintain his de facto parentage action. The Court of Appeals correctly concluded that our holding in M.F. does not bar Mr. Holt from petitioning for de facto parentage The legislature inevitably did not contemplate every conceivable family constellation, and drawing an arbitrary categorical bar based on an individual's status as a stepparent or a former stepparent would preclude legitimate parent-child relationships from being adjudicated. Unlike the specific factual scenario in M.F., the circumstances claimed by Mr. Holt have not been contemplated by the legislature and addressed in Washington's statutory scheme. Mr. Holt alleges that Ms. Holt, B.M.H.'s only other parent, consented to and fostered his parent-child relationship with B.M.H., and we have already held that by requiring consent to be proved, the de facto parentage test adequately protects parents' fundamental rights. See In re Parentage of L.B., 155 Wash.2d 679, 701, 712, 122 P.3d 161 (2005). We affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶ 3 Ms. Holt and Mr. Holt began a romantic relationship in 1993 and had a son, C.H., in 1995. The couple separated in 1998, without having married, and Ms. Holt soon became engaged to another man. Unfortunately, her fiance died in an industrial accident in 1999 while she was three months pregnant with his biological child, B.M.H.

¶ 4 Mr. Holt provided significant emotional support to Ms. Holt during the pregnancy, was present at B.M.H.'s birth, and even cut B.M.H.'s umbilical cord. Mr. Holt and Ms. Holt married shortly after B.M.H.'s birth but divorced in 2001. The resulting parenting plan designated Ms. Holt as C.H.'s primary residential parent and gave Mr. Holt residential time every other weekend. The parenting plan did not include provisions for B.M.H., but the parties do not dispute that B.M.H. essentially followed the same visitation schedule as C.H.

¶ 5 Mr. Holt was actively involved in B.M.H.'s life. In 2002, Ms. Holt changed B.M.H.'s last name from the biological father's last name to Mr. Holt's last name. Ms. Holt and Mr. Holt discussed Mr. Holt's adopting B.M.H. in 2007, but according to the guardian ad litem (GAL), adoption was not pursued because of the effect it might have on the survivor benefits that B.M.H. receives by virtue of his biological father's death.

¶ 6 Ms. Holt married another man in 2007 but divorced in 2008. During that relationship, Mr. Holt claims that Ms. Holt started to separate B.M.H. from Mr. Holt's visitations with C.H. In the summer of 2009, C.H. moved in with Mr. Holt. The parties dispute the reason for the move.

¶ 7 In late 2009 or early 2010, Mr. Holt learned that Ms. Holt planned to move with B.M.H. from Vancouver, Washington, to her new boyfriend's home in Castle Rock, about 50 miles away. On February 23, 2010, Mr. Holt filed a nonparental custody petition, alleging that Ms. Holt was not a suitable custodian for B.M.H. He explained that Ms. Holt “is threatening to move [B.M.H.] out of the area and thus disrupt the close relationship that [he] and [B.M.H.] have together.” Clerk's Papers (CP) at 4. Mr. Holt also asked the court to find that he was B.M.H.'s de facto parent. Mr. Holt alleged that “[Ms. Holt] held [him] out as the child's father in all respects”; that he and B.M.H. are “extremely bonded”; and that “[B.M.H.] refers to [him] as his father.” CP at 4.

¶ 8 Mr. Holt submitted a declaration with his petition. Mr. Holt's declaration recounted his visitation history with B.M.H. after he and Ms. Holt divorced:

Since the time of our divorce when Laurie does not have a boyfriend or husband in her life we communicate fabulously and we don't have issues with regard to our residential time with the children. However, Laurie also has a disturbing pattern of getting into multiple and very short-term relationships with other men and frequently during those times she has on occasion tried to limit my involvement with our son, [B.M.H.].

CP at 20. Mr. Holt's declaration stated that during Ms. Holt's first subsequent marriage she “made some minimal efforts to reduce my time with B.M.H.” Id. Mr. Holt described an occasion when Ms. Holt told him that he could no longer see B.M.H. because he had given B.M.H. a birthday card from B.M.H.'s maternal grandparents against her wishes. Mr. Holt stated that in August 2007, when Ms. Holt started to date the man she married in December 2007, “she began to pull [B.M.H.] away from seeing me. For the first time in [B.M.H.]'s 8 year life[, she] began splitting [B.M.H.] and [C.H.] up during visitation.” Id. Ms. Holt divorced that husband in 2008, and according to Mr. Holt, “Laurie has had a number of relationships since her divorce in 2008.... However, fortunately until now Laurie has not allowed these relationships [to] interfere[ ] with my relationship with [B.M.H.]” CP at 21. He further stated that after Ms. Holt's 2008 divorce, she has “started relationships and moved several different men in and out of her home in Vancouver. These relationships have been confusing and disruptive to [B.M.H.].” CP at 22.

¶ 9 Along with his declaration, Mr. Holt submitted copies of a photograph album that Ms. Holt made him for Father's Day, which contained handwritten captions such as, “The first time you met your son, [B.M.H.]” and “There was no doubt he is your son,” as well as a photograph of the order changing B.M.H.'s last name to Mr. Holt's last name. CP at 49–52.

¶ 10 Mr. Holt also submitted declarations from a co-worker and from his wife before Ms. Holt, describing him as a dedicated father. Mr. Holt's former wife stated:

Over the 10 years I have known [B.M.H.], Michael has never treated him any differently than any of his other children. [B.M.H.] is as loved and as nurtured as his brother [C.H.].... I can say state unequivocally that [B.M.H.] sees Michael as his one and only father and he is as loved and bonded with Michael as any boy to his father.

CP at 29. Her declaration also states:

Over the years I've watched as ... Laurie[ ] has attempted to bring other boyfriends, of often transitory and short term relationships, into [B.M.H.]'s life. On some of those occasions Laurie has tried to limit Michael's involvement with [B.M.H.] for short periods of time when she has a new boyfriend and wants him to be involved in [B.M.H.]'s life.

CP at 30.

¶ 11 The court ordered a GAL at Mr. Holt's request and ordered Ms. Holt to keep B.M.H. in his Vancouver school pending the GAL's report and to continue to allow Mr. Holt regular residential visitation with B.M.H.

¶ 12 On March 24, after a hearing, the court found that Mr. Holt had established a prima facie case for de facto parentage. Ms. Holt moved for revision, and before the revision hearing this court issued M.F., 168 Wash.2d 528, 228 P.3d 1270. The parties debated M.F.'s effect on Mr. Holt's de facto parentage action, and after two hearings, the trial court granted Ms. Holt's revision motion and dismissed Mr. Holt's de facto parentage action, finding that “M.F. ... excludes [Mr. Holt from asserting a de facto parentage cause of action] based on his former marriage to [Ms. Holt] and on the filing of a nonparental custody action.” CP at 299–300.

¶ 13 On May 19, the GAL submitted a report stating that B.M.H. viewed Mr. Holt as a father and that it would be detrimental for B.M.H. to terminate contact with Mr. Holt.

¶ 14 Before the adequate cause hearing on the nonparental custody action, Mr. Holt submitted two more declarations—one by his mother and one by Ms. Holt's father, stating that B.M.H. viewed Mr. Holt as his father. At the adequate cause hearing, Mr. Holt informed the trial court that “removing [him] from [B.M.H.]'s life as his father” would be detrimental to B.M.H.'s growth and development.

¶ 15 On August 20, the trial court found that adequate cause existed to proceed to a show cause hearing. The adequate cause finding reads:

The Guardian Ad Litem has testified that it is in the child's best interest to have a continued relationship with the petitioner, [Mr. Holt]. Based upon all the affidavits, declarations and guardian...