Judge Finds Grant of Non-parental Custody Order Violated Mother’s Constitutional Right to Raise Children

In Re Custody of ALD (2015)

by David S. Marshall

The Washington Court of Appeals reversed an order that gave custody of a child to the child’s grandparents. The appellate court held that the trial court used the incorrect standard in determining the mother’s fitness for parenting, which violated the mother’s constitutional rights.

Betty Sue (a fictional name) was born to Kelly Lambert in 2009. Betty Sue’s father was not in the picture. Soon after, Lambert moved in with her mother and stepfather, the Moehlmanns, in Spokane, Washington. In 2010, Lambert moved in with her boyfriend, Joe Favazza, who had a conviction for child molestation.

Lambert did not allow Favazza to be alone with Betty Sue nor change her diapers. Eventually, Lambert and Favazza broke up and Lambert moved back in with her parents. Over the next couple of years, Lambert moved around between Utah and Washington State, where at any given time, she lived with friends, her parents, or romantic partners.

At age 2, Betty Sue began exhibiting sexual behaviors and experiencing night terrors. Lambert took her to the hospital to have her examined for possible sexual abuse, but the doctor found no abnormalities and decided that contacting Child Protective Services (CPS) was unneeded. However, the Moehlmanns claim to have repeatedly contacted CPS, as they believed that Lambert was unfit for parenting.

The Moehlmanns felt that Lambert was unfit for parenting because she moved around too often, refused to perform certain parenting functions, and had allowed Betty Sue to live in the same house as a sex offender. Lambert also had a history of chronic depression, and physical ailments due to an injury she suffered while in the army.

The Moehlmanns filed a petition for non-parental custody of Betty Sue. The trial court granted the petition, deciding that Lambert was unfit for parenting because of the reasons the Moehlmanns stated. However, in its decision, the trial court never established what burden the Moehlmanns had to show that Lambert was unfit.

Lambert appealed, and the court of appeals reversed the trial judge’s decision.

The burden of proof is critical to the outcome of a non-parental custody petition. In Washington, in order for a court to grant non-parental custody, the non-parents must show by clear and convincing evidence that the biological parents are unfit, or that the parents’ actions will cause actual detriment to the child’s growth and development.

Under the U.S. Constitution, parents have a fundamental right to raise children without the interference of the government. The government can only interfere in raising children if the government has a compelling interest, and the interference is “narrowly tailored” to meet that interest. One example of a compelling government interest is a parenting decision that harms a child.

When deciding custody petitions from parents, the court must give the greatest weight to what is in the “best interests of the child.” However, case law has established that when deciding a non-parental custody petition, the parent’s fundamental right to raise children is at stake. Thus, considering only the “best interests of the child” is not sufficient. Instead, the government’s interference with the parent’s custody must be due to “extraordinary circumstances.”

The court of appeals then noted that cases where extraordinary circumstances existed involved intense physical or sexual abuse, parents suffering from psychosis, or parents abusing alcohol or drugs.

Here, Lambert’s behavior and actions did not demonstrate extraordinary circumstances, and therefore the government’s interference with Lambert’s right to parenting was not sufficiently tailored to the government’s interest in keeping Betty Sue from harm.

Even so, the trial court did not apply any standard of proof in making its decision, which violated Lambert’s fundamental right to parenting. Thus, the decision granting custody to Betty Sue’s grandparents was reversed.