This publication gives general information about two methods which may be used under Washington law for a person to have custody of a child not their own. One method is a nonparental custody action filed in court under Ch. 26.10 RCW and the second method, available only in agreed cases, is a Temporary Parental Consent Agreement. The publication also briefly describes a 2005 law allowing medical providers to accept consent to medical treatment from kinship caregivers for a child left in their care.
This publication does not cover common law actions for co-parentage brought by a "de facto" parent [the publication Washington Parenting Law for Unmarried Couples Who are Separating contains a description of the developing law in this area], other ways a nonparent may obtain custody (for example through juvenile court processes), or actions brought by a nonparent for visitation with a child.
THIS PUBLICATION IS NOT A SUBSTITUTE FOR INDIVIDUAL LEGAL ADVICE. IT DOES NOT TELL YOU HOW THE LAW WILL BE APPLIED IN YOUR CASE.
I. Actions for Nonparental Custody under Ch. 26.10 RCW.
What is an action for nonparental custody?
An action for nonparental custody is a lawsuit brought under Ch. 26.10 RCW in which a person who is not the parent requests legal custody of the child (or children) named in the lawsuit. The person who files the case is called the petitioner.
How is an action for nonparental custody started?
The nonparent prepares a Petition for Nonparental Custody and related documents. The petition and related documents are filed in the superior court of the county where the child lives or is found, and the papers are served on the parents and anyone claiming a right to custody or guardianship of the child.
Under what circumstances may a nonparental custody action be brought?
An action may be brought under Ch. 26.10 RCW only if the child is not in the physical custody of either of its parents or if the petitioner states that neither parent is a suitable custodian. [RCW 26.10.030(1)].
Who must be included as parties in a nonparental custody action?
The nonparental person bringing the action must include as respondents (persons who have the right to respond to the petition) the parents (whether they have been involved in the child's life or not) and any other legal guardians or custodians, and people with court ordered visitation. [RCW 26.10.030(2)].
What different ways can the nonparental action be resolved?
A nonparental custody action can be resolved in one of four ways:
Dismissal or denial of the petition: the nonparent does not get custody through the action, or
Default: one or more of the respondents do not respond, and the court grants the petition of the nonparent against the defaulting respondent(s) , or
Agreed order: one or more of the respondents agree to the petition or to some negotiated order, and the court signs an agreed court order between the nonparent and the agreeing respondent(s), or
Court decision: in cases where a respondent(s) files a response that disagrees with the petition, the court usually will decide after a trial who will have permanent custody.
What legal rights are won in a successful court action for nonparental custody?
Nonparental custody actions, if successful for the nonparent, usually lead to permanent legal custody being awarded to the nonparent through a final custody order called a Nonparental Custody Decree. If the nonparent has custody, then s/he has the right to have the child live with him/her and can make educational, medical, and other major decisions about the child. [In some cases, the court may allow the parent(s) a role in some decision-making.]
I don't really want permanent legal custody. I have agreed to care for the child temporarily and just need a document showing that I have the parents' permission to care for the child and make decisions. The child's parents agree. Do we have options other than a court case?
What are my chances of gaining custody if I file a nonparental custody action and a parent objects?
If a parent objects, the court will award legal custody to a nonparent only if the nonparent proves that the parents are unfit or that the child's growth and development would be detrimentally affected by living with an otherwise fit parent. (See discussion about the legal standard later in this publication). If the court decides there are problems in the nonparent's background or the background of any adult in the nonparent's household, (such as a drug abuse problem), or if the court decides it is not in the child's best interest to live with the nonparent, the petition may also be denied.
What happens if there is a dependency case?
If Child Protective Services (CPS) or anyone else has started a dependency case in juvenile court, the superior court won't be able to hear the custody case until the juvenile court case ends or until the juvenile court judge agrees to share jurisdiction with the superior court.
What happens if the father is unknown or uncertain?
Because parents, even those who have had no real contact with the child, have legal claims to custody and visitation with their children, the nonparent who files for custody must make serious efforts to identify, locate, and serve the parents with the petition for nonparental custody.
How is paternity established?
There are several ways paternity is established or presumed. In these cases the man must be named in the nonparental custody petition and served with the Petition:
Paternity by presumption (a man married to the mother near the time the child was born) [The presumption of paternity can be rebutted by (1) a court order or by (2) a valid denial of paternity if the mother and the biological father have signed a paternity affidavit and the presumed father has not signed an affidavit of paternity or been legally determined by a court to be the father.]
Paternity by affidavit (a man and the mother signed an acknowledgment of paternity after July 1, 1997)
Paternity by adoption (a man who adopted a child)
Paternity by court order (a man determined to be the father by court order in a paternity case)
Paternity in certain surrogate parenting or assisted reproduction circumstances.
If paternity has not been established, the nonparent petitioner must try to determine the father's identity and serve the possible father(s) with the Petition. The child's mother may be willing to work with the nonparent petitioner to identify possible fathers, and, if she is unwilling to do so, the nonparent petitioner may be able to use court or discovery procedures to identify possible fathers once the case for nonparental custody has been filed. The Family Support Division of the Prosecutor's Office can also sometimes help investigate and establish paternity.
A filing fee of $110 - $130 must be paid to the clerk when the case is filed. Very low income people may be able to get the filing fee waived. Other costs involved in filing a court action are money to cover copying and possibly fees for serving papers on the respondents. If a guardian ad litem is appointed, the petitioner may be responsible for all or part of the guardian ad litem fees. If the petitioner needs to hire an attorney, the costs will be considerably more.
Where should the case be filed?
Before filing, it is important to be sure that Washington has jurisdiction over the child and, if so, to file the case in the Superior Court of the county which has proper venue. The next three questions discuss these items.
Does Washington have jurisdiction over the child (the legal authority to decide custody)?
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) [The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), RCW 26.27 et. Seq., and the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. §1738A, determine whether Washington has jurisdiction over children], and, for Indian children, the Indian Child Welfare Act [25 USC §1901] determine if Washington has jurisdiction over the child. (The next question and answer describe the Indian Child Welfare Act).
The parties to the case cannot give Washington jurisdiction to decide custody of a child by agreement. [Campbell v. Campbell, 180 Ind. App. 351, 388 N.E.2d 607 (1979).]
If the child has always lived in Washington and no other state [RCW 26.27.041 requires a state court to treat an Indian Tribe like a state when applying the general purposes and jurisdictional rules of this law.] has made a custody order about the child, then Washington has jurisdiction. However, if this is not true, then jurisdiction becomes more complicated to determine. The following are some basic guidelines about jurisdiction. However, if you have questions about whether Washington has jurisdiction over the child, you should talk with an attorney.
1.If there is already a court order about custody of the children, and one of the parties to that case or the child still lives in the state that entered the court order, that state will continue to have jurisdiction over the child, and the custody action should be filed there (this is called continuing jurisdiction). [RCW 26.27.211]. If Washington has continuing jurisdiction, the case can be filed here.
2. If no court has ever entered an order about custody of the child, Washington has jurisdiction over the child to make an initial child custody decision[Initial child custody determination means the first child custody order concerning a particular child. See RCW 26.27.021(8)] if:
a. The child has lived in Washington with a parent or a person acting as a parent for at least the six consecutive months (six months in a row) before your court case is filed. Washington is the child's home state; OR
b. The child is less than six months old and has lived in Washington with a parent or a person acting as a parent [See RCW 26.27.021(13) for the definition of "person acting as a parent."] since birth at the time your court case is filed. Washington is the child's home state; OR
c. Washington was the child's home state (either a. or b. were true) within six months before your court case is filed and one parent or person acting as a parent has continued to live in Washington since the child left the state.
3. If Washington does not have continuing jurisdiction (under 1. above) or home state jurisdiction to make an initial child custody decision (2. above) over the child, a person may still be able to obtain a custody order in Washington.
A Washington court may have jurisdiction to enter an initial or subsequent custody order if the child is located in Washington and there is an emergency. See the question below.
A Washington court may enter a subsequent custody order if the child lives in Washington and none of the parties or the child continues to live in the state where the prior custody order was entered.
A Washington court may enter an initial custody order if no other state is the child's home state (under the requirements of 2.a., 2.b., or 2.c. above) or if the home state decides not to exercise jurisdiction and
Washington is the more appropriate forum to decide custody
The child and at least one parent (or person acting as a parent) have a significant connection with Washington (more than a mere physical presence) and
There is substantial evidence in Washington regarding the child's care, protection, training, and personal relationships.[RCW 26.27.201; RCW 26.27.021.]
If Washington does not have jurisdiction, what action can the nonparent take?
If Washington does not have jurisdiction over the child under the UCCJEA, then the nonparent petitioner has a few options:
(a) S/he can file for custody in the state that has jurisdiction over the child.
(b) S/he can ask the other state to decline jurisdiction and allow Washington to take jurisdiction. In an emergency s/he may be able to obtain a Washington custody order protecting the child while long-term jurisdiction is decided. (See also the next question). If you want to ask another state to decline jurisdiction, you should talk with an attorney.
(c) If s/he is seeking an initial custody decision, s/he can wait until the child has been in Washington six months so that Washington becomes the child's home state (if no custody proceeding is started in another state in the meantime).
What emergency jurisdiction is available?
In certain limited cases to protect a child located in Washington from abandonment or abuse, Washington may be able to take emergency jurisdiction over the child. [RCW 26.27.231(1)].
However, emergency jurisdiction is limited, and Washington's orders typically will last only until someone files a case in the state with jurisdiction, unless that state declines jurisdiction.
Emergency jurisdiction requirements are different, depending upon whether or not another state has already made a custody determination concerning this child.
If Washington takes emergency jurisdiction and there is no earlier custody order in another state, the Washington order stays in effect until the state with home state or significant connection jurisdiction issues a custody order. If no custody case is started in that other state, the emergency order issued in Washington may become final if the order allows for this and if Washington becomes the child's home state.
If Washington takes emergency jurisdiction over the child and you want custody to be decided by the state with proper jurisdiction to enter an initial custody decision, you must quickly file a custody action in the other state and have the Washington court communicate with the other state. If you wait too long and Washington becomes the child's home state for making an initial custody decision, the other state can lose jurisdiction to Washington. [RCW 26.27.231(2)].
However, if there is an earlier custody order in another state and that state has continuing jurisdiction (see #1 above), the emergency order in Washington must contain a date on which it ends, and, unless the other state declines jurisdiction, Washington's jurisdiction will continue only until 1) the court with continuing jurisdiction enters an order or 2) the Washington emergency order expires, whichever comes first. [RCW 26.27.231(3)].
What law applies if the child is an Indian child?
If the child is an Indian child, the Indian Child Welfare Act (ICWA) applies to nonparental custody actions. [25 USC §1901]. An Indian child is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.[25 USC §1903(4)] ". Membership with a tribe is decided by the tribe.
Enrollment and membership are not always the same thing. If a child has a connection with an Indian tribe, it is better to give notice and later find the ICWA does not apply than to fail to give notice only to have a court order turn out to be invalid. If the Indian child lives within the boundaries of an Indian reservation, the tribe has jurisdiction. And if the child is a ward of the tribal court, the tribal court has jurisdiction, even if the child lives outside the reservation boundaries. If the child is not a ward of the tribal court and lives outside the reservation boundaries, the state court must still transfer jurisdiction to the tribal court in some circumstances.
If the petitioner seeks custody of an Indian child, the petitioner must serve the petition and other documents on the child's tribe, in addition to serving the parents. [25 USC §1912(a)]. ICWA sets specific standards for services that must be provided before a child can be removed from the parents or Indian custodian, and also sets the level of proof a nonparent petitioner must make to obtain custody. For example, culturally relevant services to remedy the problems must be offered. In addition, the parents or Indian custodians are entitled to court- appointed attorneys to represent them in the case if they cannot afford to hire an attorney themselves.
A description of the ICWA requirements can be found in a case called In re the Interest of Mahaney, 146 Wn. 2d 878 (2002). See also the publication Indian Child Welfare Act, available at www.washingtonlawhelp.org.
In what county should the case be filed (what is the proper venue)?
If Washington has jurisdiction over the child under the UCCJEA and ICWA, the case should be filed in the Superior Court of the county where the child is domiciled (permanently resides) or can be found. [RCW 26.10.030].
If the mother or father has never had contact with Washington State, can the case be filed here?
Yes, if Washington has jurisdiction over the child. [RCW 26.27.201(3)]. The person filing the case will need to locate and serve the parents. However, if the parent has not had contact with this state, the Washington court may not be able to order the parent to pay child support.
What happens after the case is filed?
Filing a petition for custody is not the same as having final legal custody. A nonparent has permanent legal custody only when the judge signs a Nonparental Custody Decree granting him/her custody. A nonparent has temporary or emergency custody only when a court signs an order granting it.
After the case is filed, several things must happen before the court makes a final decision:
Background court record checks must be made for the petitioner and child.
Criminal history and CPS history checks must be made for the petitioner and every adult living in his/her household.
Notice of the case must be given to the parents (and any other legal guardians or custodians), and they have the chance to respond.
The court must decide that there is enough legal basis for the case to proceed (adequate cause). The adequate cause decision is made after a hearing in contested cases.
The court may enter temporary orders concerning custody, child support, and visitation.
The court may order that a Guardian ad Litem (GAL) be appointed to investigate what living situation would be in the child's best interests and to make recommendations, or may refer the case to Family Court Services for a similar investigation.
The court may enter appropriate restraining orders to protect safety and prevent harassment.
The court's final decision is made by agreement, default, trial, or dismissal.
What background checks are required?
Several checks for background information must be made during a nonparental custody case. [RCW 26.10.135]. They include:
A check of the court records system to see if other cases concerning the child exist
A Child Protective Services (CPS) check regarding the child (to see if s/he has been the alleged victim of abandonment, abuse or neglect) , the petitioner(s), and any person 16 or older living in the petitioner(s) home
An examination of state and national criminal records for the petitioner(s) and any adult members of their household.
If these background checks reveal problems, the court will investigate further to decide if the problems might create a poor environment for the child. In serious cases, the court might refer the case to CPS.
What if one of the parents is in the military service?
If one or both of the parents is on active duty in the military service, the case may not be able to proceed against them unless they agree or unless an attorney is appointed to represent their interests. [Service Members Civil Relief Act, 50 U.S.C. App., Sec. 501 et.seq.].
What is the legal standard for nonparental custody?
The court will not grant custody of a child to a nonparent over the objection of the child's parent unless the nonparent proves either that (1) the parent is unfit, or (2) circumstances are such that the child's growth and development would be detrimentally affected by placement with an otherwise fit parent. [This is a more difficult standard than the "best interest" legal standard applied between parents. Parents have a constitutional right to raise their children; nonparents do not have the same rights]. It is not enough to show that the child would have a better environment with the nonparent. [In re the Custody of Anderson 77 Wn. App. 261 (1995).]. In cases involving Indian children, as defined in the ICWA, a different standard will be applied by the court. (See below.)
What is the legal background for this nonparental custody standard?
The legislative statutes regarding nonparental custody are contained in the Revised Code of Washington (RCW) at chapter 26.10. In addition, the law regarding nonparental custody has developed from court cases that interpret the statutes. A person who is considering filing a nonparental custody action should read RCW 26.10 and a case called In re the Custody of Anderson, 77 Wn. App. 261 (1995), because they set forth the legal standard that one must meet to obtain nonparental custody of a child. Other cases that contributed to the development of nonparental custody case law include, but are not limited t In re Stell, 56 Wn. App. 356 (1989), In re the Marriage of Allen, 28 Wn. App. 637 (1981), In re the Custody of Nunn, 103 Wn. App. 871 (2000), In re the Interest of Mahaney, 146 Wn. 2d 878 (2002), In re the Custody of S.H.B., ___ Wn. 2d ___(2005), and In re the Custody of Shields, 120 Wn. App. 108 (2004).
These cases conclude that the burden is on the nonparent seeking custody to establish either (1) that the parent is unfit or (2) that circumstances are such that the child's growth and development would be detrimentally affected by placement with an otherwise fit parent. An example of circumstances where placement with an otherwise fit parent would detrimentally affect a child's growth or development might be a situation where a parent is living with a physically abusive person. The nonparent must show actual detriment to the child, not just that a different custody arrangement is in the child's "best interest".
Unless a parent is found to be unfit, the fact that a parent needs to improve his or her parenting skills or has issues to be addressed may not be enough to meet the legal standard. For example, in the Anderson case, the mother had exhibited instability while raising her other children. She had gone to Alaska to avoid a perceived problem, had moved from location to location within Alaska, and she lacked a definite plan for the present. Nevertheless, the Court of Appeals still said that unless the petitioners could show actual detriment to the child from these or other factors, these problems alone did not meet the legal standard for awarding custody to nonparents.
Are the standards different for an Indian child?
Yes. If a nonparental custody case involves an Indian child as defined by the Indian Child Welfare Act (ICWA), the court must apply the legal standards required by the ICWA. The court will not grant the petitioner custody of the child absent a determination supported by clear and convincing evidence, including testimony of a qualified expert witness that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. USC 25 §1912(e). If the court does not apply the ICWA in a nonparental custody case regarding an Indian child, the resulting custody order will be invalid.
What is an Adequate Cause hearing?
The purpose of an adequate cause hearing is to decide if the petitioner has a strong enough legal basis to proceed with the case. The petitioner must submit declarations stating that the child is not in the physical custody of one of his/her parents or that neither parent is a suitable custodian, and include facts that support these claims. [RCW 26.10.032]. The parents/respondents can submit evidence disputing these claims and showing their suitability. Some counties may allow or require live testimony at adequate cause hearings. Some counties may require that all claims be submitted in written declarations before the hearing and do not allow live testimony. If adequate cause for the petition is not shown at this hearing or by an agreed order signed by the parties and approved by the court, the case will end.
Are temporary and emergency orders available?
In appropriate cases, yes. A temporary order is a court order that gives certain rights and/or protections while the court action is in process. An emergency order is an order that lasts until a hearing on temporary orders can be held. Temporary and emergency orders can decide custody until the next hearing or until trial, can set child support, can restrain violence and harassment, or can give other appropriate temporary relief.
Domestic Violence Protection Orders may also be available.[Ch. 26.50 RCW].
What does a Guardian ad Litem (GAL) do?
The court may appoint a guardian ad litem (GAL) to represent the best interest of the child during the court case. S/he is appointed at the request of a party or sometimes at the court's own initiative. S/he can be a private GAL (whose expenses the parties usually pay), or a Court Appointed Special Advocate (CASA) volunteer. Or sometimes the court requests an investigation by the Family Court Services staff (sliding scale payment). The GAL will interview the parties, review the court file, talk to witnesses, and obtain records. S/he can request evaluations. S/he will usually make a report to the court with recommendations about what s/he believes is in the child's best interest. For more information, see our publication Working with GALs and Parenting Evaluators.
I am a parent, and I know there are some issues that keep me from taking good care of my child, but I don't want to lose permanent custody of him or her. What can I do?
A parent who loses temporary custody of his or her child during a nonparental custody case can still try to regain custody before final orders are signed. It can be important t
Ask for as much residential time with the child as the court will allow and use every bit of time the court grants. Make sure the visitation time is specifically contained in orders the court signs.
Find and use services or treatment necessary to address the problems that led to the petition being filed. (For example, alcohol treatment if you have an alcohol problem).
Try to negotiate or argue in court that, if the nonparents are awarded custody, the custody decree should state the conditions under which the child will return to the parent (for example, upon completion of alcohol treatment).
If the child is placed with the nonparent by a temporary order and there is no final decree yet, the parent can file a motion for a new temporary order when s/he has improved his/her situation. However, the standard for changing custody back to the parent is much more difficult when a final custody decree is entered.
If a nonparent gains legal custody, what rights do the parents have?
If a nonparent is awarded custody of the child, the parents still have a right to visit the child unless the visitation itself would be harmful to the child. A parent's visitation with his/her child can be limited if the court finds that parent has:
Willfully abandoned the child for an extended time or substantially refused to perform parenting duties
Engaged in physical, sexual, or a pattern of emotional abuse of a child
Had a history of acts of domestic violence or an assault or sexual assault that has caused grievous bodily harm
Been convicted as an adult of certain sex offenses [RCW 26.10.160].
A parent's visitation time will also be limited if the court finds s/he lives with a person who has engaged in the last three items above.
Also, unless the court specifically orders otherwise, each parent has full and equal access to school and medical records of the child. [RCW 26.10.150].
Will the parents have to pay child support if a nonparent is awarded custody?
Yes. If the court has personal jurisdiction over the parents (if they have had sufficient contact with this state), then the court will set child support if it enters a nonparental custody decree. The amount of support will depend upon the parents' incomes. If the court lacks jurisdiction to set child support, the Division of Child Support (part of DSHS) will often set child support through interstate procedures.
How long does a Nonparental Custody Decree last?
Based on the agreement of the parties (as shown in the final custody decree) or on the decision of the court, the nonparental custody decree can include the specific circumstances or conditions under which a parent can regain custody of the child. If the decree does not contain such a provision, it can be difficult for a parent to regain custody of the child. The decree can be substantially changed in the future only by signed agreement of the parties and approval by the court, or, by a party proving the difficult legal standards needed to modify a custody decree. [RCW 26.10.190 and RCW 26.09.260(1)]. Minor changes, such as making limited changes in visitation, are easier to make if they are in the child's best interest. [RCW 26.10.190 and RCW 26.09.260(5)].
II. Temporary Parental Consent Agreements
The parent(s) have asked me to care for the child temporarily. I don't want permanent legal custody. I just need a document showing third parties that the parent(s) agree I will have custody temporarily. Do we have options other than a lawsuit for permanent legal custody?
In many situations, a "temporary parental consent agreement" can give the nonparent the authority to make medical and educational decisions affecting the child and to obtain care and services for the child. Such an agreement can show that the parent(s) have given the caregiver permission to care for the child. With such an agreement, schools, doctors, and others may accept the nonparent's authority to act on the child's behalf.
A temporary parental consent agreement is a written agreement between the parent(s) and the caregiver. It is not a court order. It does not restrict parental rights, and the parent can cancel it at any time. It is helpful only as long as both sides honor the agreement and third parties (schools, doctors, insurance companies, etc.) recognize it.
How long does a Temporary Parental Consent Agreement last?
It lasts as long as both the parents and the nonparent want it to last. You should not see it as a permanent solution, however. If a nonparent is going to be caring for the child for more than a year, it is probably better to seek a more formal legal relationship, such as nonparental custody.
When is a temporary parental consent agreement not enough?
A temporary parental consent agreement does not prevent a parent from taking a child back. If a nonparent does not want the child's parents to be able to take the child back, the nonparent will need to obtain a custody order through the court.
In addition, a temporary parental consent agreement may not be enough if third parties such as schools, doctors, insurance companies, or government agencies do not honor the agreement.
What is included in a temporary parental consent agreement?
The adults involved decide exactly what the agreement should say. Typically, where a grandparent or other nonparent caregiver is going to care for the child, a temporary parental consent agreement will cover the following:
that the parent(s) consent to the nonparent having temporary residential care of the child, either for a specific period of time (for example, "from May 1, 2005 until the end of the school year"), or, where the end date is uncertain, "indefinitely." [If the agreement is "indefinite" it can continue to be good even if the child is with the nonparent longer than originally expected. An expired temporary parental consent agreement will provide little or no help and cannot be renewed unless the nonparent is able to find the parent at the time renewal is needed. It is important to understand, however, that regardless of the time frame set out in the agreement, the parent can request the return of the child at any time. If the parent requests the return of the child, the nonparent must return the child unless the nonparent has obtained a court order allowing the nonparent to keep the child.]
that the nonparent has the authority to provide all necessary care, to make medical and dental decisions, to arrange for child care, and to make educational decisions. This part of the document can be as specific or general as the parties wish. For example, the parent can authorize the nonparent to make most medical decisions but say that the parent wants to be the one to decide if the child needs surgery.
that the parent can revoke (cancel) the agreement at any time. [It is useful if the agreement requires the parents to revoke the agreement in writing. That way, it will be clear when the parent(s) intends to take the child back permanently, and not just for a short while. Although requiring a parent to revoke in writing cannot legally stop the parent(s) from simply taking the child back at any time without advance written notice, the parties) may be willing to voluntarily follow this procedure.]
The agreement can also include a statement regarding visitation with the child and an agreement for payment of child support.
What happens if the temporary parental consent agreement has not run out but the parent who signed it now wants the child back?
Regardless of the time frame set out in the agreement, the parent(s) can request the return of the child at any time. If the parent(s) requests the return of the child, the nonparent must return the child unless s/he has a court order allowing him/her to keep the child.
Should both of the child's parents sign the temporary parental consent agreement?
Yes. However, if one parent is absent or unknown, only the other parent has to sign. In this situation the agreement should state that the other parent is absent or unknown.
I am a parent. When should I consider signing a Temporary Custody Agreement?
When you have already decided to have another person (such as a grandparent) temporarily care for your child, and when you have confidence that person will properly care for the child, a temporary parental consent agreement can be used to show third parties, such as schools, that the person has your permission to care for the child.
You should not use the agreement
to avoid the threat of a lawsuit or
if you have any concerns about the care your child will receive or
if you have any doubts about the custodian's willingness to return the child to you at the end of the agreement or earlier.
You may also be required to pay child support, even when the agreement does not call for it, if the nonparent receives public assistance for the child or if s/he applies for child support services from the Child Support Division of the Washington State Department of Social and Health Services.
Also, even though the agreement is revocable (you can cancel it), the agreement does not prevent the nonparent from filing a lawsuit for custody if you later disagree about where the child should live. In addition, law enforcement officials may be reluctant to help return the child to you if you revoke the agreement, even if the nonparents do not have a court order.
Can parents and nonparents write their own temporary parental consent agreement?
The law does not require people to hire a lawyer to draft a temporary parental consent agreement. For further information about temporary parental consent agreements, contact CLEAR at 1-888-201-1014 if you are low income and live outside King County. If you live inside King County, you may contact the King County Bar Association Neighborhood Legal Clinics at (206)267-7070 or Eastside Legal Assistance Advice Clinics at (425) 747-7274.
If possible, your agreement should be signed in front of a notary public. [A Notary Public can often be found at banks or at public offices.] Although having a notary witness a signature is not legally required, third parties may be more likely to accept the agreement if it has been notarized. If you cannot do a formal notarized agreement, even a handwritten letter signed by the child's parent is better than nothing.
A sample Temporary Parental Consent Agreement and brief instructions are attached to the end of this publication. If you can afford it, we recommend that you have a lawyer write your agreement or at least review the agreement you have prepared. A lawyer can help you think about all the issues and write an agreement that really meets your needs. A lawyer who handles family law issues is the best person to see.
You should keep the original agreement in a safe place and make copies for schools, doctors, etc. as needed.
The child I have been taking care of needs medical treatment. Is there anything I can do?
When consent from an adult is necessary to provide a child with medical care, the law was changed in 2005 to allow a medical provider to accept the consent for most types of medical treatment from adults in the following order of priority:
1.a court appointed guardian or legal custodian
2.a person authorized by a juvenile court order (if the child is in an out of home placement)
3.a parent
4.a person who has an authorization signed by the child's parent giving him/her authority to make health care decisions for the child
5.a competent adult who represents that s/he is a relative responsible for the health care of the child or a competent adult relative who has signed and dated a declaration under penalty of perjury stating that s/he is a relative responsible for the health care of the child. The declaration is effective for not more than 6 months. [Chapter 440, Laws of 2005, amending RCW 7.70.065]. The medical provider may ask the relative to give reasonable evidence of the relationship and his/her responsibility for the health care of the child. Note: So long as the medical provider does not know the representations or declaration to be false, the provider may, but is notrequired to rely on the representations or declaration. The medical provider also may require documentation of the person's claimed status as a relative responsible for the health care of the child.
Instructions for Temporary Parental Consent Agreement
The Temporary Parental Consent Agreement is intended as a sample form for you to use or modify as appropriate. If at all possible, have a family law attorney review your agreement before you complete it.
The following suggests some things to consider in each section of the form.
State the names of the parent(s) who are signing the consent and the name(s) and birth date(s) of the child(ren).
State the name of the person/people who will be caring for the child(ren) and their relationship to the child(ren) (for example, grandparents). State the caregiver's address.
State any restrictions on decision-making. Remember that if there are restrictions, the parent signing the consent must be available to make decisions in the restricted area. If the parent is not available when the decision in the restricted area needs to be made, there may be no adult who can decide.
Write in the circumstances for out-of-state travel, or write "Out-of-state travel is not allowed."
Write in an end-date or end-condition for the agreement (for example "until mother is discharged from the military service" or "until June 15, 2005'), or, if the parties do not know how long the agreement will last, write in "indefinite."
Both parents need to consent if their identities are known and if both can be located. If only one parent is signing, s/he needs to explain the reasons why the other parent has not signed the consent.
Write in any additional items in your agreement. These might include specific address and telephone information, and an agreement to provide notice of changes, a specific visitation schedule, activities and events the caregiver would notify the parent of, etc.
Once the form has been prepared, the parents should sign it. Although the law does not require the form to be notarized, third parties may be more likely to accept the signatures as valid and to honor the agreement if a Notary Public has witnessed the signatures. Notary Publics are often available at banks or public offices. They may charge a small fee for their services.
1. I am/We are the parent(s) of __________________________ [child(ren)'s name], who was/were born on _______________ [date]. I am / We are 18 years old or older.
2. I/We hereby give consent for [child(ren)'s name(s)] to remain in the residential care of __________________________ [caregiver's name and relationship to the child(ren)] who live(s) at [street, city, state] .
3. I/We hereby authorize this caregiver to have the care and control of the child, to have the authority to obtain and provide all necessary care, including emergency and routine medical and dental care, evaluations and treatment, and to make all necessary childcare and educational arrangements for the child while the child is in her/his/their care with the following restrictions: . I/We authorize the above named caregiver(s) to make decisions on all other issues regarding the child [i.e.: religious decisions, decisions about the child's social life, decisions about the child's school activities, and personal care decisions (i.e. haircuts, pierced ears, etc.)] with the following restrictions:
. 4. I/We hereby authorize this caregiver to take the child out of state for vacations under the following conditions:
. 5. This agreement lasts until _____________________ [write in an end date or write "indefinitely"], unless it is revoked before expiration. Either parent can revoke this consent and terminate this agreement at any time by delivering to the caregiver a signed, written notice at least a week in advance.
6. (The following paragraph applies if only one parent is available to consent) [ ] I am the sole custodian of the child. The other parent has not signed this consent because [explain whether the other parent is unknown or absent].
7. Additional items:
__________________________ Mother of Child(ren)
__________________________ Father of Child(ren)
NOTE: This form does not need to be notarized to be valid. SUBSCRIBED AND SWORN TO before me this ____ day of ____________ 20 .
NOTARY PUBLIC in and for the State of Washington, residing at __________________________.
*The Northwest Justice Project appreciates the assistance provided by the Northwest Women's Law Center in the creation of this publication, specifically the temporary parental consent agreement and information about it.
This publication provides general information concerning your rights and responsibilities. It is not intended as a substitute for specific legal advice. This information is current as of the date of its printing, April 2005.
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