Minium v. Shmilenko

374 P.3d 1169, 185 Wash. 2d 803

• Court: Washington Supreme Court
• Decided: July 7, 2016
• Docket: No. 90072-8
• Status: Published

Opinions

[As amended by order of the Supreme Court September 1, 2016.]

Yu, J.

¶1 The question in this case is whether a third party—here, a step-grandfather with no legally established relationship to his step-grandson—can petition for visitation rights through a custody proceeding pursuant to chapter 26.10 RCW or under some equitable doctrine. Stated simply, does a right to third-party visitation exist under Washington law? We hold that it does not.

¶2 Washington’s third-party visitation statutes were invalidated as facially unconstitutional because they infringed on a parent’s fundamental liberty interests. Unless and until the legislature amends chapter 26.10 RCW, there is no statutory basis for third-party visitation. Furthermore, we decline to recognize a right to petition for third-party visitation in equity. We therefore reverse and remand for dismissal and consideration of the award of attorney fees.

Factual and Procedural History

¶3 M.W.’s parents died in a tragic car accident on August 9, 2008, just days before his first birthday. At that time, M.W. was in the physical custody of petitioners Greg and Linda Minium, M.W.’s maternal grandparents. Approximately one month after the accident, the Miniums filed a petition in Cowlitz County Superior Court for nonparental custody of M.W. pursuant to RCW 26.10.030(1). Clerk’s Papers (CP) at 3-7. The petition named Patti Shmilenko, M.W.’s paternal grandmother, as the sole respondent. Id. at 3. John Shmilenko, Mrs. Shmilenko’s husband and M.W.’s step-grandfather, was not named as a party.¹ Mr. Shmil-enko did not attempt to intervene.

¶4 In March 2010, the Miniums and Mrs. Shmilenko agreed to the entry of a nonparental custody decree establishing the Miniums as M.W.’s legal custodians and granting visitation rights to Mrs. Shmilenko according to an agreed residential schedule. Id. at 15-20, 21-31. The findings of fact and conclusions of law, custody decree, and residential schedule were all entered as agreed orders, with no independent fact-finding by the trial court. Id. at 8-12, 15-18, 21-29. The residential schedule specified that the parties would review the visitation schedule when M.W. entered school. Id. at 22. The record is silent as to why Mr. Shmilenko was not included in the court’s orders despite residing in the same household as his wife, but all of the orders explicitly provide for visitation with “Patti Shmi-lenko.” E.g., id. at 11, 16, 22-24. Mr. Shmilenko has maintained a relationship with M.W. through his wife’s visitation rights.

¶5 When M.W. reached school age three years later, the parties could not agree on a modified residential schedule. Mrs. Shmilenko subsequently petitioned the superior court to modify the original custody decree and residential schedule, naming both herself and her husband as “requesting parties.” Id. at 35 (capitalization omitted). Mrs. Shmilenko also moved for a temporary amended residential schedule. Id. at 49-52. In response, the Miniums asked the court to terminate Mrs. Shmilenko’s visitation rights, contending that her court-ordered, third-party visitation was unconstitutional and that she also was not entitled to visitation under the equitable doctrine of de facto parentage. Id. at 54-59. In the alternative, the Miniums asked the court to order the parties to participate in mediation. Id. at 59.

¶6 The court entered a temporary order on October 7, 2013, amending M.W.’s residential schedule and allowing Mrs. Shmilenko to continue to exercise her own visitation rights pursuant to the parties’ prior agreed order. Id. at 62-64. In the temporary order, the court did not rule on the Miniums’ argument that third-party visitation is unconstitutional; it also crossed out a reference to Mr. Shmilenko as a “requesting party” and provided for visitation with Mrs. Shmilenko only. Id. at 63. Ultimately, the court entered a final order ensuring that Mrs. Shmilenko would continue to have midweek visits with M.W. during the school year, as well as other visitations during certain weekends, holidays, and vacations Id. at 250-51. The Miniums do not challenge the court’s orders as to Mrs. Shmilenko’s visitation rights. Pet’rs’ Opening Br. at 6 n.2.

¶7 At the same time that Mrs. Shmilenko petitioned to modify the original custody decree, she also filed a motion pursuant to CR 21 to join her husband as an additional party to the underlying nonparental custody proceeding. CP at 44-46. The court denied that motion on October 28,2013, but indicated that Mr. Shmilenko would be permitted to state the factual basis for bringing his own third-party custody or de facto parentage action and, if he did bring such an action, it would be consolidated with Mrs. Shmilenko’s petition to modify the custody decree. Id. at 66. The court also specifically interlineated a provision that Mr. Shmilenko’s “action would have to stand on its own merits.” Id.

¶8 A few weeks later, on November 14, 2013, Mr. Shmilenko proceeded to file his own nonparental “custody” petition under a new cause number and requested that his petition be consolidated with the existing nonparental custody proceeding. Id. at 156-61. In his petition, Mr. Shmilenko did not request custody or decision-making authority with respect to M.W. Rather, he requested that the previously entered residential schedule be modified to explicitly give him visitation rights with M.W., stating that he had “maintained a grandparent-grandchild relationship with [M.W.],” and asserting that it was “in [M.W.] ’s best interest that JOHN SHMILENKO have established visitation that will continue even in the event PATTI SHMI-LENKO no longer is able to exercise visitation.” Id. at 159-60. There is no indication in Mr. Shmilenko’s petition that his wife’s visitation rights were in jeopardy. The Miniums opposed the requested relief and argued that the petition should “be dismissed due to lack of adequate cause and as unconstitutional pursuant to ROW 26.10.160(3) and supporting case law.” Id. at 166.

¶9 The court heard oral argument regarding Mr. Shmilenko’s petition on January 13, 2014, and concluded that there was no legal basis under chapter 26.10 RCW for the proceeding. Verbatim Report of Proceedings (VRP) (Jan. 13, 2014) at 14. Rather than dismiss the action at that point, the court allowed the matter to proceed under a de facto parentage framework and directed Mr. Shmilenko to file an amended petition. Id. at 15, 18. The court entered a written order and scheduled another hearing for February 24, 2014. CP at 108.

¶10 At the February 24 hearing, the parties and the court all acknowledged the difficulty of trying to fit the facts of the present case into existing statutes or common law doctrine. In his arguments to the court regarding adequate cause, Mr. Shmilenko admitted that the de facto parent analysis was a “rough fit for this case,” but nevertheless asserted that his amended petition reserved the right to seek visitation pursuant to the court’s general equitable powers, even if he did not meet the specific requirements to establish de facto parentage. VRP (Feb. 24, 2014) at 5. Meanwhile, the Miniums contended that it would be impossible for Mr. Shmilenko to establish de facto parentage because “John and Patti Shmilenko have always referred to themselves, both of them, in their relationship with [M.W.], as grandparent[al] in nature.” Id. at 13. The court ultimately ruled that in light of the preexisting custody decree, a finding of adequate cause was necessary and proceeded to analyze the request for visitation under the four elements needed to establish de facto parentage.² See id. at 27-28. The court ruled that the threshold requirement for a de facto parent claim—that the natural or legal parent consented to and fostered a parent-like relationship between the child and the moving party—did not apply because M.W.’s biological parents were deceased and “nobody here amounts to a natural or legal parent.” Id. at 27.

¶11 The court then found that allegations made in Mr. Shmilenko’s petition were sufficient to establish adequate cause on the remaining three elements. Id. at 28. Specifically, the court ruled that because M.W. had overnight visits with the Shmilenkos, Mr. Shmilenko had sufficiently established that “ [t] he child and the moving party live together in the same household.” Id. at 27. The court further found that even though the Miniums were M.W.’s primary caregivers, Mr. Shmilenko sufficiently alleged that he was “still assuming aspects of parenthood” and, therefore, established adequate cause for the requirement that “[t]he moving party assumed obligations of parenthood without expectation of financial compensation.” Id. Finally, the court found that there was sufficient evidence to establish adequate cause to believe that Mr. Shmilenko “has been in a parental role for a length of time sufficient to establish with the child a bonded, dependent relationship parental in nature.” Id. at 28. The court cautioned that it was ruling on adequate cause only, which would allow the de facto parentage action to move forward, but the factual allegations were “obviously still to be tested.” Id. Acknowledging that it was “swimming well away from any established channel markers, legally,” the court stated it would certify the issue for immediate interlocutory appeal. Id.

¶12 On March 10, 2014, the court entered a written order formalizing its adequate cause ruling:

2.4 DE FACTO PARENT STATUS

There is adequate cause to proceed with the De Facto Parent [claim] based on the following findings:

a. [M.W.] has no living parents that are able to consent to and foster a parent-like relationship as provided in Section 2.5;

b. Respondent JOHN SHMILENKO and the child have lived together in the same household during all visitations as provided in Section 2.5.

c. Respondent JOHN SHMILENKO has assumed the obligations of parenthood without expectation of financial compensation as provided in Section 2.5.

d. Respondent JOHN SHMILENKO has fully and completely undertaken a permanent, unequivocal, committed and responsible parental role in the child’s life as provided in Section 2.5.

2.5 ADEQUATE CAUSE FINDING.

a. The Court finds that there is not adequate cause for Respondent JOHN SHMILENKO to move forward with a nonparental custody petition under RCW 26.10.

b. The Court finds that Respondent JOHN SHMILENKO has established adequate cause to proceed under the equitable remedies of the court as a de facto parent and grants leave to allow the Respondent JOHN SHMI-LENKO to amend his nonparental custody petition to include a request for custody/visitation under the court’s equitable powers.

CP at 144-45. The court certified its ruling for immediate review under RAP 2.3(b)(4). Id. at 147. The Miniums sought discretionary review by this court, id. at 148, and the commissioner granted direct review pursuant to RAP 4.2(a)(3) and (4).³

¶13 The Miniums challenge Mr. Shmilenko’s claim for visitation rights, asserting that there is no statutory basis for his petition because the third-party visitation statutes were held facially unconstitutional. Mr. Shmilenko contends that provisions in the statute governing nonparental custody proceedings, specifically RCW 26.10.030 and .040, provide an independent statutory basis for third-party visitation that does not come within the sweep of this court’s precedent. In the alternative, Mr. Shmilenko asserts that if there is no statutory basis for third-party visitation, he may request relief under the court’s equitable powers.

Analysis

¶14 This court has repeatedly held that absent a valid statute, there is no right to third-party visitation under our existing laws. We invalidated Title 26 RCW’s third-party visitation provisions, RCW 26.10.160(3) and RCW 26.09.240, as facially unconstitutional in In re Custody of Smith, 137 Wn.2d 1, 969 P.2d 21 (1998), aff’d on other grounds sub nom. Troxel v. Granville, 530 U.S. 57, 120 , 147 L. Ed. 2d 49 (2000) (plurality opinion), and In re Parentage of C.A.M.A., 154 Wn.2d 52, 109 P.3d 405 (2005). We determined that the sweeping scope of the third-party visitation provisions, which enabled any party to petition for third-party visitation rights at any time, “impermissibly interfere [d] with a parent’s fundamental interest in the ‘care, custody and companionship of the child.’” Smith, 137 Wn.2d at 21 (quoting In re Welfare of Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980)). We reaffirmed this holding in In re Parentage of L.B.:

[O]ur recent decision in In re Parentage of C.A.M.A[.] makes clear that Washington’s current third party visitation statutes are unconstitutional and inoperative and thus unavailable as an alternative ground on which to seek visitation.

. . . [F]ollowing this court’s holding in C.A.MA., it is clear that Washington’s third party visitation statutes, RCW 26.09-.240 and RCW 26.10.160(3), are facially unconstitutional. The effect of holding a statute facially unconstitutional “is to render the statute totally inoperative.” City of Redmond v. Moore, 151 Wn.2d 664, 669, 91 P.3d 875 (2004). As such, based on our holdings in Smith and C.A.M.A., until the legislature amends the relevant statutes, there exists no statutory right to third party visitation in Washington.

155 Wn.2d 679, 713-15, 122 P.3d 161 (2005) (emphasis added).

¶15 In the intervening time since L.B., the legislature has abstained from amending the third-party visitation statutes to cure the constitutional defects. Despite our unwavering pronouncements and the legislature’s refusal to amend the statute, we are now asked to determine whether a statutory right to third-party visitation may exist elsewhere in chapter 26.10 RCW. In the alternative, we are asked to use our equitable powers to create a third-party visitation right in the absence of a statutory remedy.

¶16 We take this opportunity to reaffirm our previous holdings that there is no statutory basis for third-party visitation under our laws. Furthermore, we defer to the legislature’s abstention from reinstating a statutory basis for third-party visitation, and we do not find a compelling reason now to create such a right under our equitable powers.

A. Statutory Claim

¶17 Recognizing that Washington’s third-party visitation statutes have been invalidated, Mr. Shmilenko asserts that RCW 26.10.030 and .040 still provide a statutory basis for him to seek court-ordered visitation with M.W.

¶18 RCW 26.10.030 sets forth the procedure for commencing a child custody proceeding:

(1). . . [A] child custody proceeding is commenced in the superior court by a person other than a parent, by filing a petition seeking custody of the child in the county where the child is permanently resident or where the child is found, but only if the child is not in the physical custody of one of its parents or if the petitioner alleges that neither parent is a suitable custodian. . . .

(2) Notice of a child custody proceeding shall be given to the child’s parent, guardian and custodian, who may appear and be heard and may file a responsive pleading. The court may, upon a showing of good cause, permit the intervention of other interested parties.

(3) The petitioner shall include in the petition the names of any adult members of the petitioner’s household.

¶19 RCW 26.10.040 states in relevant part:

(1) In entering an order under this chapter, the court shall consider, approve, or make provision for:

(a) Child custody, visitation, and the support of any child entitled to support.

¶20 Mr. Shmilenko argues that “RCW 26.10.030, as supplemented by RCW 26.10.040(l)(a), allows a trial court to award third party visitation where, as here, the child is in the custody of a non-natural parent.”⁴ Br. of Resp’t at 13. Not only does this interpretation seek to revive a right that we have determined no longer exists under our laws, it is contrary to the purpose and intent of the statute and inconsistent with the plain and unambiguous language of the provisions.

1. The plain language of chapter 26.10 RCW does not provide a statutory basis for third-party visitation

¶21 Mr. Shmilenko contends that together, RCW 26.10.030 and .040 provide an independent right to petition for third-party visitation. However, his analysis looks at the two provisions only in relation to one another, rather than considering both provisions within the context of chapter 26.10 RCW as a whole—as the canons of statutory interpretation demand. See Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 10, 43 P.3d 4 (2002) (plain meaning can be determined by examining “the statute in which the provision at issue is found, as well as related statutes or other provisions of the same act in which the provision is found”).

¶22 By its own terms, chapter 26.10 RCW as a whole is concerned, first and foremost, with custody determinations. RCW 26.10.010 states that “[i]t is the intent of the legislature to reenact and continue the law relating to third-party actions involving custody of minor children.” (Emphasis added.) This clear and explicit statement of intent should guide analysis of the statute as a whole. See Oliver v. Harborview Med. Ctr., 94 Wn.2d 559, 565, 618 P.2d 76 (1980) (legislative declarations of policy “ ‘serve as an important guide in determining the intended effect of the operative sections’” (quoting Hearst Corp. v. Hoppe, 90 Wn.2d 123, 128, 580 P.2d 246 (1978))).

¶23 In the context of this clear legislative intent, Mr. Shmilenko’s interpretation of RCW 26.10.030 and .040 is contrary to the plain language of the statute. RCW 26.10-.030 governs the commencement of nonparental custody proceedings and makes no mention of visitation for a third party. Conceding that RCW 26.10.030 refers only to custody, Mr. Shmilenko argues that RCW 26.10.040 “mandates” a broader definition of custody that includes “visitation by noncustodial third parties.” Br. of Resp’t at 10. However, RCW 26.10.040 plainly considers visitation only within the context of custody proceedings. The provision states that “the court shall consider, approve, or make provisions for: (a) [c]hild custody, visitation, and the support of any child entitled to support,” RCW 26.10.040(l)(a) (emphasis added), enumerating visitation as one of the rights and responsibilities that a court is required to address when making a child custody determination. The mere mention of visitation in RCW 26.10.040 does not create an independent right to third-party visitation, and such an interpretation ignores the statute’s plain language. Use of the conjunctive “and” requires that visitation be determined alongside custody. See Tesoro Ref. & Mktg. Co. v. Dep’t of Revenue, 164 Wn.2d 310, 319, 190 P.3d 28 (2008) (plurality opinion). In other words, RCW 26.10.040 dictates what a court must consider when making a custody determination, not what rights parties may petition for under the statute. Thus, RCW 26.10.040 cannot be reasonably construed to serve as a statutory basis for seeking third-party visitation outside of a custody proceeding.

¶24 To support his statutory claim, Mr. Shmilenko points to the fact that none of the cases addressing the constitutionality of third-party visitation statutes touch on the validity of third-party visitation under RCW 26.10.030 or .040. Br. of Resp’t at 11-13 (citing L.B., 155 Wn.2d 679; C.A.M.A., 154 Wn.2d 52; Smith, 137 Wn.2d 1). However, RCW 26.09.240 and RCW 26.10.160, were the only statutes in Title 26 RCW that expressly created a right to third-party visitation. Third-party visitation as it pertains to RCW 26.10.030 and .040 was not addressed in our previous cases because no such right is enumerated in either of these provisions. Judicial silence on the matter is not evidence to the contrary.

¶25 It bears repeating that what our cases do say—and say unequivocally—is “until the legislature amends the relevant statutes, there exists no statutory right to third party visitation in Washington.” L.B., 155 Wn.2d at 714-15. While Mr. Shmilenko asserts this precedent is not controlling here because the cases dealt only with the third-party visitation statutes, the analysis above shows that there is no other statute that could provide an independent basis for third-party visitation. It is the province of the legislature— not this court—to create such rights.⁵

2. Policy considerations

¶26 When it affirmed the unconstitutionality of Washington’s third-party visitation provisions, the United States Supreme Court observed that the language of RCW 26.10-.160(3) was “breathtakingly broad.” Troxel, 530 U.S. at 67. The provision allowed “[a]ny person” to petition for court-ordered visitation with a child at “any time.” RCW 26.10-.160(3), invalidated by Smith, 137 Wn.2d 1. Reading a right to petition for third-party visitation into chapter 26.10 RCW, as Mr. Shmilenko urges, would have troubling and far-reaching consequences. Neither RCW 26.10.030 nor .040 would provide any protections against unwarranted intrusion or standards for determining when granting visitation is appropriate.

¶27 First, RCW 26.10.040 provides no limitation on who would be able to petition for third-party visitation rights. The way in which Mr. Shmilenko interprets RCW 26.10.040 would allow any third-party to petition for visitation rights with a child. This is precisely the “breathtakingly broad” scope that we were concerned with in Smith. Troxel, 530 U.S. at 67. We observed that the third-party visitation provisions

lack other safeguards to prevent stable families from defending in court against frivolous petitions for visitation. Most notably the statutes do not require the petitioner to establish that he or she has a substantial relationship with the child. . . . Also, the statutes do not require the court to take into consideration such factors as the parents’ reasons for restricting visitation with the petitioner or any allegations of past physical or mental abuse by petitioner when making a visitation determination.

Smith, 137 Wn.2d at 20-21. That a natural or legal parent’s rights are not involved here does not change the fact that nothing in the statute would prevent a distant or estranged relative, a complete stranger, or any other third party, for that matter, from petitioning for visitation.

¶28 Further, there are no standards to guide courts in deciding whether to grant visitation. Recognizing a right to third-party visitation in the absence of a statute that sets forth protective requirements or standards would make our state an outlier, even among the jurisdictions that explicitly provide for third-party visitation. See Jeff Atkinson, Shifts in the Law Regarding the Rights of Third Parties to Seek Visitation and Custody of Children, 47 Fam. L.Q. 1, 3 (2013). A recent survey found:

Most third-party visitation statutes list factors a court should consider when deciding whether to grant visitation. Common factors include: the amount and quality of contact between the child and the third party; the quality of the child’s relationship with the parents; the effect of the relationship (or absence of relationship) between the child and the third party; the preferences of the child; the mental and physical health of all individuals involved; and a history of or threat of domestic violence or child abuse.

Id. Of the jurisdictions with operating third-party visitation statutes, a strong majority enumerate factors that must be addressed to determine whether visitation should be granted. See id., App. I at 18-24.⁶

¶29 Third-party visitation under RCW 26.10.030 and .040 would give no deference to the wishes of legal custodians like the Miniums. While they are not M.W.’s legal parents, the Miniums have broad discretion to determine M.W.’s upbringing as his legal custodians, see RCW 26.10-.170 (“Except as otherwise agreed by the parties in writing at the time of the custody decree, the custodian may determine the child’s upbringing.”), and have been granted sole decision-making authority with regard to M.W. CP at 27. We continue to recognize that “[t]he family entity is the core element upon which modern civilization is founded. Traditionally, the integrity of the family unit has been zealously guarded by the courts. The safeguarding of familial bonds is an innate concomitant of the protective status accorded the family as a societal institution.” Smith, 137 Wn.2d at 15. There is no reason that a child, like M.W., should lose the integrity and stability of his family structure solely because he is already in the unfortunate position of having lost his biological parents.⁷

B. Equitable Claim

¶30 In the absence of a statutory remedy, Mr. Shmilenko asserts that we should provide him with a remedy in equity, invoking the equitable power that we exercised in L.B. to recognize the de facto parent doctrine. While we do not question the current viability of the de facto parent doctrine, it has no applicability in the present case.

¶31 In L.B., we adopted a stringent test for establishing de facto parentage and stated that “attaining such recognition should be no easy task.” 155 Wn.2d at 712. To establish standing as a de facto parent, the following criteria must be satisfied:

“(1) the natural or legal parent consented to and fostered the parent-like relationship, (2) the petitioner and the child lived together in the same household, (3) the petitioner assumed obligations of parenthood without expectation of financial compensation, and (4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature.”

Id. at 708 (quoting In re Parentage of L.B., 121 Wn. App. 460, 487, 89 P.3d 271 (2004)). We further stated that “recognition of a de facto parent is ‘limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.’” Id. (second emphasis added) (quoting C.E.W. v. D.E.W., 2004 ME 43, 845 A.2d 1146, 1152).

¶32 Mr. Shmilenko would not be able to meet these strict requirements. Mr. Shmilenko himself characterizes his relationship with M.W. as one that is “ ‘grandparent-like,’ ” Br. of Resp’t at 9, so it cannot be said that he has assumed the obligations of parenthood or established a bonded, dependent relationship that is parental in nature.

¶33 Moreover, the fact that de facto parents stand “in parity with biological and adoptive parents in our state,” L.B., 155 Wn.2d at 710, illustrates the unsuitability of the de facto parent doctrine in this case. Amicus Legal Voice points out that if Mr. Shmilenko were to establish de facto parent status, he would become M.W.’s only legal parent, with constitutionally protected rights superior to M.W.’s legal custodians, the Miniums. Br. of Amicus Curiae Legal Voice at 11. This is an extraordinary remedy for a party who seeks only visitation rights.

¶34 Mr. Shmilenko conceded at oral argument that he never wanted to establish himself as M.W.’s de facto parent and was requesting only visitation rights. Wash. Supreme Court oral argument, In re Custody of M.W., No. 90072-8 (June 25, 2015), at 32 min., 40 sec., audio recording by TVW, Washington State’s Public Affairs Network, http://www .tvw.org. The de facto parent claim was advanced only at the behest of the trial court. Admitting that the de facto parent doctrine is “a rough fit for the case at bar,” Br. of Resp’t at 17, Mr. Shmilenko asks this court to recognize a right to third-party visitation under its equitable powers. The circumstances in this case do not warrant the fashioning of such an extraordinary remedy by this court.

¶35 Mr. Shmilenko claims that here, as in L.B., he is without an adequate statutory remedy. We find this analogy unpersuasive. In L.B., the parties were in a same-sex domestic partnership when the child was conceived and had been raising the child together in a “coparenting” arrangement. L.B., 155 Wn.2d at 682. When the child, L.B., was six years old, the parties “ended their relationship and an acrimonious spate of litigation over access to L.B. ensued.” Id. One of the coparents was neither biologically nor legally related to L.B., and there was no statutory basis under which she could petition for parental rights. We therefore considered “whether, in the absence of a statutory remedy, the equitable power of our courts in domestic matters permits a remedy outside of the statutory scheme or, conversely, whether our state’s relevant statutes provide the exclusive means of obtaining parental rights and responsibilities.” Id. at 688.

¶36 In determining whether it was appropriate to exercise our equitable powers in L.B., we observed that

Washington courts have consistently invoked their equity powers and common law responsibility to respond to the needs of children and families in the face of changing realities. We have often done so in spite of legislative enactments that may have spoken to the area of the law, but did so incompletely.

Id. at 689. Recognizing that “inevitably, in the field of familial relations, factual scenarios arise, which even after a strict statutory analysis remain unresolved, leaving deserving parties without any appropriate remedy,” id. at 687, we adopted the de facto parent doctrine “to fill the interstices that our current legislative enactment fails to cover,” id. at 707. Mr. Shmilenko contends his situation similarly warrants an equitable remedy.

¶37 However, the legislature had been “conspicuously silent when it [came] to the rights of children like L.B., who are born into nontraditional families, including any interests they may have in maintaining their relationships with the members of the family unit in which they are raised.”⁸ Id. at 694. The third-party visitation Mr. Shmilenko seeks is different—it is a scenario that the legislature did expressly contemplate when it enacted third-party visitation statutes. As discussed above, those statutes were held facially unconstitutional 17 years ago. We have explicitly held that “until the legislature amends the relevant statutes, there exists no statutory right to third party visitation in Washington.” Id. at 714-15. And, presumably aware of our case law, the legislature has declined to amend the relevant statutes. Cf. City of Federal Way v. Koenig, 167 Wn.2d 341, 348, 217 P.3d 1172 (2009). This is not just a case of simple legislative silence, but of clear legislative abstention.

¶38 We do not doubt or question the quality of Mr. Shmilenko’s relationship with his step-grandson, but it is not the province of this court to step in and fashion a remedy where the legislature has clearly abstained from doing so. If third-party visitation is to be recognized in this state, it should be through the legislative process. Cf. Buchanan v. Int’l Bhd. of Teamsters, 94 Wn.2d 508, 511, 617 P.2d 1004 (1980) (“The legislature, within constitutional constraints, is the body to make the policy decisions on this matter. The failure of the legislature to amend the statute in the 17 years since [our] decision was rendered convinces us that it was and is the policy of the legislature to concur in that result.”). Consequently, we hold that Mr. Shmilenko does not have an equitable claim for third-party visitation.

C. Attorney Fees

¶39 The Miniums seek attorney fees under RCW 26.10.080, which authorizes this court to award attorney fees to a party for “maintaining or defending any proceeding under this chapter.” Mr. Shmilenko argues against an award of attorney fees on the ground that his statutory claim for visitation was the only proceeding maintained under chapter 26.10 RCW, which was dismissed by the trial court. Br. of Resp’t at 23. However, this argument ignores that Mr. Shmilenko’s nonparental custody petition was consolidated with the underlying custody proceeding originally maintained by the Miniums, CP at 87-88, which was brought pursuant to RCW 26.10.030(1). Moreover, Mr. Shmilenko does not limit his briefing to the possibility of an equitable remedy—he plainly urges this court to find a statutory basis for third-party visitation within chapter 26.10 RCW. See Br. of Resp’t at 10-14. Consequently, there is an existing proceeding under chapter 26.10 RCW on which an award for attorney fees could be made.

¶40 Our authority to award attorney fees is discretionary, and RCW 26.10.080 requires that the court “balance the needs of the party requesting fees against the other parties’ ability to pay.” In re Custody of Brown, 153 Wn.2d 646, 656, 105 P.3d 991 (2005). The Miniums have submitted a financial declaration consistent with RAP 18.1(c) asserting that due to the cost of defending against Mr. Shmilenko’s de facto parent claim, their expenses now exceed their income by more than $2,000. Fin. Decl. of Pet’rs at 4. Though claiming that the cost of litigation has been “financially debilitating,” Mr. Shmilenko refuses to disclose his financial information, John Shmilenko’s Resp. to Fin. Decl. of Pet’rs at 5, in violation of RAP 18.1(c).⁹ Without a financial declaration from Mr. Shmilenko, this court is unable to balance the financial needs of the parties as required by RCW 26.10.080. We therefore hold that the Miniums are entitled to attorney fees in the amount determined appropriate by the trial court on remand “after considering the financial resources of all parties.” RCW 26.10.080.

Conclusion

¶41 The ways in which modern families can be arranged are myriad. It is not uncommon for children to be in the care of relatives who may not be their legal parents—these families are no less deserving of protection from unwanted intrusion. Allowing any third party to petition for visitation poses a serious threat to the stability of these nontraditional families. We sympathize with Mr. Shmilenko’s desire to ensure a continued relationship with his step-grandson, but he is not M.W.’s legal parent, guardian, or custodian. While he may care about his step-grandson very much, the statute, by design, limits the parties who can interfere in such an intimate part of a child’s life. This result may seem harsh in the instant case, but Mr. Shmilenko seeks a right that does not exist under our laws.

¶42 There is no statutory right to third-party visitation under our laws, and we decline to exercise our equitable powers to create such a right. Consequently, we reverse and remand for dismissal of Mr. Shmilenko’s petition and the determination of attorney fees.

Johnson, Owens, Fairhurst, Stephens, and Gordon McCloud, JJ., concur.

1 M.W.’s biological paternal grandfather, Richard Miller, also was not named in the petition. M.W. has an ongoing relationship with Mr. Miller pursuant to an informal agreement with the Miniums, Pet’rs’ Opening Br. at 4, which is not at issue in this case.

2 The four-part test for de facto parentage was established in In re Parentage of L.B., 155 Wn.2d 679, 708, 122 P.3d 161 (2005), and is discussed further below.

3 The Miniums assert that by failing to appeal the dismissal of his nonparental custody petition, Mr. Shmilenko waived his right to bring a statutory claim. Pet’rs’ Reply Br. at 2. However, the commissioner explicitly raised the statutory issue upon granting discretionary review, and the Miniums did not move to modify this ruling. Thus, the statutory issue is properly before us.

4 The fact that an individual is pursuing court-ordered, third-party visitation over the objection of the child’s legal custodians, rather than the child’s deceased parents, cannot be the basis for reinstating a cause of action that we have previously held facially unconstitutional.

5 Mr. Shmilenko farther contends that our cases are not controlling here because this case does not implicate the liberty interests of natural or legal parents. While this is true, the fact that a parent’s liberty interests are not involved in this case does not change the analysis. The third-party visitation statutes have been struck down as facially unconstitutional, and therefore no such right exists regardless of the parties or interests involved. See Moore, 151 Wn.2d at 669 (“The remedy for holding a statute facially unconstitutional is to render the statute totally inoperative.’’).

6 While the dissent is correct that RCW 26.10.030(2) limits intervention in custody proceedings to an “ ‘interested party,’ ” dissent at 830, the fact still remains that there is no statutory provision that would prevent any potentially interested party from seeking to intervene in the first place. We do not doubt the ability of judges to evaluate the appropriateness of intervention, but the statute as written provides no mechanism for protecting families from having to defend against unwarranted intervention at the outset. Furthermore, by characterizing the issue as a procedural matter, the dissent does not take into account the fact that there is no right to third-party visitation in Washington. Mr. Shmilenko seeks a right that has no statutory basis, and the dissent would recognize a remedy where none exists.

7 The dissent’s assertion that M.W. will “lose his family structure with his paternal grandparents, the Shmilenkos,’’ dissent at 831, is not supported by the facts. As previously noted, Mr. Shmilenko has sustained a relationship with M.W. through his wife’s visitation rights pursuant to a prior agreed order with the Miniums. Only Mr. Shmilenko’s right to petition for court-ordered visitation with M.W. is at issue here, and there is no indication that Mrs. Shmilenko’s visitation rights will be curtailed.

8 We decided L.B. prior to the legalization of same-sex marriage in this state.

9 The Miniums moved to strike Mr. Shmilenko’s response to their financial declaration as untimely, and Mr. Shmilenko moved to enlarge the time to file his response. The court passed those motions to the merits, and now denies the Miniums’ motion and grants Mr. Shmilenko’s.