This guide 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.