Termination of Parental Rights & Nonparent Child Custody

May 23, 2011 at 6:44 pm | Latest News | No comment | By Scott Burkhalter

TERMINATION OF PARENTAL RIGHTS & NONPARENT CHILD CUSTODY

This article demonstrates the burdens placed on a nonparent when seeking to adopt a child over the objection of a natural parent where the natural parent has failed to perform parental obligations (past performance) versus the burdens placed on a nonparent when seeking to obtain legal custody of a child because of the natural parent’s unfitness (past/current/future performance).

Termination of Parental Rights & Adoption.

A Court will terminate parental rights where the following elements are met:  It is in the best interest of the child to terminate the relationship; the parent has failed to perform parental duties under circumstances showing a substantial lack of regard for his/her parental obligations; and withholding consent for adoption is contrary to the best interest of the child.

Washington State case law sets five guidelines for reviewing parental obligations in termination cases: Expressions of love and affection for the child; express personal concern over the health, education and general well being of the child; the duty to supply necessary food, clothing and medical care; the duty to provide an adequate domicile; and the duty to furnish social and religious guidance.

Washington law does not address how long a parent must fail to perform.  The burden is on the non-parent to demonstrate the parent has failed to perform parental duties showing a substantial lack of regard for their parental obligations.

Third Party Custody.

In order for a nonparent to be awarded custody of a child over the objection of a natural parent, the nonparent must show either: the parent is “unfit”; “actual detriment” to the child would result from the parent’s custody; or “actual detriment” to the child has resulted from the parent’s custody.

Because of strong constitutional protection of parents’ rights to raise their children, courts require the nonparent meet a stricter test than the “best interest of the child” test courts apply in determining who will be awarded custody in disputes between two parents (e.g., in divorce proceedings).

An “unfit” parent generally cannot meet a child’s basic needs and, in such cases, the State is justified in removing the child from the home.  Even when a parent is “fit”, a court has the power to award custody to a nonparent “in extraordinary circumstances,” where placing the child with an otherwise fit parent would be detrimental to the child.  There must be a showing of actual detriment to the child, something greater than the comparative and balancing analyses of the “best interests of the child” test.

Contact: Please contact Scott Burkhalter for further information and options regarding your custody issues and needs.  425.776.4100, scottb@beresfordlaw.com

New Hope for Tort Claims in Contract Litigation

May 19, 2011 at 7:50 pm | Latest News | No comment | By Bill Kessler

Since the Washington Supreme Court’s decision in Alejandre v. Bull in 2007, a plaintiff was generally prohibited from recovering money damages in tort (e.g. a claim based on negligence) if (a) the plaintiff and defendant had a contract and (b) the tort arose out of the subject matter of that contract.  Dubbed the “Economic Loss Rule,” the logic was to encourage parties in a contractual relationship to allocate the risk of loss in the contract.  For example, in Alejandre, the Supreme Court precluded homebuyers from pursuing a negligence claim against their seller when the septic tank turned out to be defective.  Instead, the buyers were limited to whatever claims they had under their contract with the sellers.

 However, in November 2010, the Washington Supreme Court replaced the Economic Loss Rule with the “Independent Duty Doctrine” in deciding Eastwood v. Horse Harbor Foundation and Affiliated FM Ins. Co. v. LTK Consulting.  Under the Independent Duty Doctrine, “the availability of a tort remedy depends on the existence of a tort duty arising independently of a contract’s negotiated terms, not on whether an injury can be labeled an economic loss.”  In Eastwood, a landlord brought claims against his tenant for breach of contract (i.e. breach of the lease), but also brought a claim for the tort of waste.  The Supreme Court allowed the landlord to go forward with the tort claim because it found the tenant owed the landlord a duty not to commit waste which was independent of the parties’ duties to each other under the lease.

 In conclusion, plaintiffs should generally bring any tort claim they might have, even if they are also bringing contract claims.  Under the Independent Duty Doctrine, those tort claims have a better chance succeeding than they did under the Economic Loss Rule.

David Tingstad and Dick Beresford are speaking to small business owners at the 425 Launch, a committee of the Edmonds Chamber of Commerce

May 19, 2011 at 7:30 pm | Latest News | No comment | By admin