In Re the Visitation of Troxel

940 P.2d 698, 87 Wash. App. 131
CourtCourt of Appeals of Washington
DecidedJuly 28, 1997
Docket36737-4-I
StatusPublished
Cited by23 cases

This text of 940 P.2d 698 (In Re the Visitation of Troxel) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Visitation of Troxel, 940 P.2d 698, 87 Wash. App. 131 (Wash. Ct. App. 1997).

Opinions

Cox, J.

Tommie Granville, n/k/a Wynn, appeals the trial court’s visitation award to Jenifer and Gary Troxel, the paternal grandparents of her daughters Natalie and Isabelle. Wynn argues that the grandparents lack standing to petition for two reasons. First, there was no pending custody proceeding at the time of the grandparents’ petition. Second, her husband Kelly Wynn adopted both girls.

[133]*133Wynn also challenges evidentiary rulings by the trial court, contends it applied the wrong standard in making its decision, and maintains the findings and conclusions are inadequate. Moreover, she challenges the constitutionality of the visitation statute. Because the Troxels had no standing to petition for visitation in the absence of a pending custody proceeding, we reverse.

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 Troxels 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 December 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 the 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 [134]*134month, one week in the summer, and four hours on the birthday of each of the Troxels.

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 RCW 26.10.160(3) allows them to so petition. We hold that the Troxels lack standing because no child custody proceeding was pending when the Troxels commenced this action.

At issue is the meaning of RCW 26.10.160(3). Statutory construction is a question of law that we review de novo.1 The primary objective of statutory construction is to carry out the intent of the Legislature by examining the language of the statute.2 We give words their plain meaning unless a contrary intent appears.3 We also must construe statutes "as a whole in order to ascertain legislative purpose, and thus avoid unlikely, strained or absurd consequences which could result from a literal reading.”4

RCW 26.10.160(3) provides:

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]

[135]*135A literal reading of this statute could lead to the sort of absurd result that our canons of statutory construction forbid. Does "any person” have standing to petition "at any time” for visitation with a child? For example, could a member of the state Legislature who has displeased a constituent find herself faced with the considerable expenditure of time, money, and emotional energy to oppose a wholly frivolous petition by that constituent? Should this occur without any showing that the parent was unfit or that the family was unstable or that the child was otherwise facing any threat to its well-being? Our Legislature could not have intended such an absurd and potentially pernicious result from so broad a reading of the statute.

This court stated in dicta in In re Custody of B.S.Z.-S.6 that the third-party visitation provision in RCW 26.10.160(3) applies only in the context of actions for child custody and questions of visitation that arise in custody actions. RCW 26.10.030(1) provides that a petitioner may commence a third-party child custody proceeding only when a child is not in the custody of one of its parents or if the petition alleges parental unfitness. That limitation is consistent with the constitutional restrictions on state interference with parents’ fundamental liberty interest in the "care, custody, and management” of their children.7 The Legislature could not have intended to open the door to "any” person petitioning for visitation "at any time,” having created such strict standing requirements for third-party custody proceedings.

RCW 26.10 is entitled "Nonparental Actions for Child Custody.” The Legislature’s statement of intent declares that it enacted RCW 26.10 to "reenact and continue the law relating to third-party actions involving custody of [136]*136minor children.”8 That statement of intent is also consistent with restricting petitions for visitation to custody-proceedings, rather than allowing petitioners to commence new proceedings when no custody or other action is pending.

Our reading of the limitations of RCW 26.10.160(3) finds further support in the statutory history of this statute and RCW 26.09.240, a parallel provision. In 1987, the Legislature reenacted and continued the law relating to third party actions involving custody of minor children in order to distinguish it from the 1987 parenting act amendments.

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Bluebook (online)
940 P.2d 698, 87 Wash. App. 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-visitation-of-troxel-washctapp-1997.