In thе Matter of the Visitation of NATALIE ANNE TROXEL, ET AL., JENIFER TROXEL, ET AL., Respondents, and TOMMIE GRANVILLE, Appellant.
No. 36737-4-I
Division One
July 28, 1997
131-144
Affirmed.
The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accоrdance with the rules governing unpublished opinions.
COLEMAN and COX, JJ., concur.
Review denied at 134 Wn.2d 1002 (1998).
Donald J. Bisagna, for appellant.
Mary H. McIntosh and Law Office of Mary H. McIntosh; and Mark D. Olson and Law Office of Mark D. Olson, for respondents.
Brad Troxel and Tommie Wynn had a relationship that ended in June 1991. Natalie and Isabelle are their daughters and the granddaughters of Jenifer and Gary Troxel. After the separation, Brad lived with the Troxels and regularly brought Natalie and Isabelle to the Troxels’ house for weekend visitation. Brad committed suicide in May 1993. After Brad‘s death, the Trоxels saw Natalie and Isabelle regularly, though the girls did not stay overnight at the Troxel residence. In October 1993, Wynn informed the Troxels that she wished to limit visitation to one short visit per month. The Troxels declined Wynn‘s offer. Between October and December 1993, they did not see Natalie and Isabelle. They did not resume regular visitation with the girls until April 1994, when a court commissioner entered a temporary visitation order.
In Decеmber 1993, Jenifer and Gary Troxel commenced this action, seeking court-ordered visitation with their granddaughters. At the time of trial in December 1994, Natalie and Isabelle were five and almost three years old, respectively.
At trial, the Troxels requested two weekends of overnight visitation per month and two weeks of visitation during the summer. Based on the recommendation of her counselor, Dr. Nora Young, Wynn asked thе court to order one day of visitation each month with no overnight stay. Dr. Young also suggested that the grandparents participate in the Wynns’ holiday celebrations. The court heard testimony from the Troxels, their son-in-law, and two expert witnesses that Wynn hired. Based on the evidence, the trial court issued its oral ruling and entered a visitation decree ordering visitation of one weekend per
Wynn sought review. We remanded the case for entry of findings of fact and conclusions of law. We later directed the parties to file additional briefs.
Standing
Wynn argues that the Troxels lack standing to petition for visitation. The Troxels counter that the plain meaning of
At issue is the meaning of
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.5
This court stated in dicta in In re Custody of B.S.Z.-S.6 that the third-party visitation provision in
Our reading of the limitations of
Aside from some renumbering,9 the portion of
In its 1996 session, the Legislature amended
In 1987, the Legislature enacted virtually identical provisions that have subsequently proceeded on parallel tracks. We сan see no plausible reason why the Legislature would amend
For all of the reasons discussed above, whether or not the Legislature overlooked amending
Accordingly, we hold that a petition for visitation under
The Troxels argue that they have standing under
Wynn makes several other challenges to the visitation decree. She argues that her husband‘s adoption of both girls eliminates the Troxels’ right to petition for visitation. She also claims that the trial court abused its discretion by failing to follow the recommendations of her expert witnesses. In addition, Wynn argues that the visitation statute impermissibly interferes with parents’ constitutionally protected interest in child-rearing. She also claims that, in determining the best interests of the child in a nonparental visitation proceeding, a court‘s inquiry should be whether fаilure to order visitation would be detrimental to the child‘s development. Alternatively, she suggests that a court should apply the standards of the recently revised statute governing nonparental visitation in dissolution proceedings to the question of the child‘s best interests. Finally, she argues that, under either test, the findings of fact and conclusions of law in this case were inadequate to support the award. We do not reach these questions because of our disposition based on a lack of standing.
We reverse the visitation decree and dismiss the Troxels’ petition for visitation.
GROSSE, J. (concurring) — I write separately to underscore the salient fact behind the majority opinion: The Legislature has rejected the approach advocated by the dissent,17 and an appeal to the people by initiаtive failed to gain the requisite signatures.18 So, while the legislative approach may lack logic and common sense, it is the approach chosen by the policy makers with plenary authority over this subject.
ELLINGTON, J. (dissenting) — I must respectfully dis-
Petitioners commenced this action under
As the majority notes, from 1987 to 1996,
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 modifiсation would serve the best interests of the child.
In 1996,
A person other than a parent may petition the court for visitation with a child at any time or may intervene in a pending dissolution, legal separation, or modification of parenting plan proceeding. A person other than a parent may not petition for visitation under this section unless the child‘s parent or parents have commencеd an action under this chapter.
The limiting language underscored above states a legislative intent to confine the new limitation, requirement of a pending action, to nonparent visitation petitions filed under
The majority concludes the Legislature simply overlooked amending
The majority also relies on dicta from In re Custody of B.S.Z.-S., 74 Wn. App. at 731, stating that the third-party custody provision in
The imposition of strict requirements for third-party custody petitions does not lead inexorably to the conclusion that the same requirements were intended to apply to visitation petitions. On the contrary, custody and visitation are vastly different matters. A petition for custody amounts to an attempt to wrest one‘s child permanently from one‘s care and control. A petition for visitation, on
Previously, this court attempted to construe the governing statute to include “change of circumstances” threshold requirements for third-party petitions. This construction was immediately rejected by the Legislature. In 1976,
In the absence of a threshold situation so affecting the interests of the child with regard to the continuity of the family unit, the welfare of the child will seldom, if ever, be served by a judicially imposed overriding of parental discretion to determine whether a third person, distinct from the basic family unit, shall be permitted the privilege of visitation with the child.
Carlson, 16 Wn. App. at 597-98.
Wise as these considerations may have appeared, the Lеgislature promptly rejected them, amending the statute in 1977 to permit third-party visitation petitions “whether or not there has been any change of circumstances.” In Marriage of Klouse, 30 Wn. App. 492, 494, 635 P.2d 773 (1981), the court characterized the amendment bluntly: “the impact of the 1977 amendment was to negate the requirement of showing a material change in circumstances.”
Many considerations could explain a legislative decision to leave
The limitations which public policy may place on such petitions are fertile grounds for debate. One may ask whether such petitions should be available at all in cases where both parents live with the children and oppose the petition, whether death or divorce or separation should affect, and, if so, how; whether adoption by a step-parent should affect, and so on.20 But these are matters for the Legislature, and for now, the current statute expresses one policy approach: any person may petition at any time, so long as the child‘s best interests are served. It cannot
I must thus respectfully dissent from the reasoning and result of the majority, and from its holding that under
I would not simply affirm, however. The trial court here was not presented with any guidance as to the proper test to be applied in a case such as this. The findings necessary to order visitation over the objections of a parent are thus not in the record, and I would rеmand for further proceedings. And while I believe
One final issue remains. These children have been adopted by their stepfather, or so the briefs advise us. Under Mitchell v. John Doe, 41 Wn. App. 846, 706 P.2d 1100 (1985), and Bond v. Yount, 47 Wn. App. 181, 734 P.2d 39 (1987), adoption — by strangers or relatives — terminates standing to petition for visitation. These holdings are premised on a privacy rationale:
There is no policy stronger or more consistently followed in this state thаn that protecting the sanctity and privacy of
adoptions. When an adoption has become final, previous ties to natural parents are completely severed and a wholly new relationship is created. The confidentiality of the new, as well as the defunct, relationship becomes virtually inviolate. The legislative policy concerning this transformation is reflected not only in thе adoption statute, but in the probate code as well. This policy has been affirmed consistently by the courts. “The legislative policy of providing a ‘clean slate’ to the adopted child permeates our scheme of adoption.” The strength of this policy is illustrated by the reaction of our courts to the latter day attempt, buttressed by a wealth of arguments, to strip the mantle of confidеntiality from adoption records. That attempt has been firmly rejected.
Mitchell, 41 Wn. App. at 849-50 (citations and footnote omitted) (quoting In re Estates of Donnelly, 81 Wn.2d 430, 437, 502 P.2d 1163, 60 A.L.R.3d 620 (1972)).
Not only has the legislative concern for privacy lessened somewhat since Mitchell,23 the rationale is inapplicable here in any event. Where a stepparent adopts, ties to one natural parent remain intact, and virtually no confidentiality concerns exist. I would therefore be cautious about applying the Mitchell rationale to these facts. Nor have the parties fully briefed the issues. I thus would not hold standing terminated upon the adoption.
In sum, I would remand. I therefore dissent.
Review granted at 133 Wn.2d 1028 (1998).