Dear John, My daughter and her 4-year-old son have lived with me for the past two years, while the father is in prison.
I have had to assume the role of caregiver for the boy because his mother doesn't do it. She lets him get dirty, never combs his hair, allows him to stay up past 11 p.m., and on more than one occasion she let him eat nothing but sugared cereal for an entire day.
We constantly argue about the way she has been raising the child. Recently, she has said that she is going to move out so that she does not have to listen to my complaints. Is there something I can do so that I can keep my grandson with me? I know that he would be better off.
Dear Gobsmacked, My mother has lived with my family for the last two years. There is not a day that goes by that I am not grateful for what she has added to our household. However, there are many times when she and I do not agree on some aspect of how my wife and I raise our children. Our disagreements have made me want to move out, and it is my house.
When a court is asked to decide the custody of a child, statute requires a determination of what is in the best interest of the child. It is presumed that the parents are the ones who are best able to make that determination. Overcoming that presumption is very difficult because parenting is a fundamental right.
Some people say there should be a test or licensing requirement to becoming a parent. They express dismay that it takes classes and exams to drive but becoming a parent only requires background music and, perhaps, a bottle of wine. I insist that the alternative, where kids can be taken out of a home for nothing more than parenting outside the norm, would be much worse.
Overcoming the presumption that a parent is able to determine the best interest of a child, requires that the petitioner, you in this case, prove that the parent is "unfit and that it would be an actual detriment for the child to be in that parent's care."
This is a two-part test. According to the rule, even an unfit parent can still keep the child if there is no actual detriment. Also, if there is a detriment, a fit parent can keep the child. Providing an example to illustrate the separation is more than I can do within the scope of this article. However, the main point is: it is really difficult to take custody away from a parent and give it to a non parent?
I would recommend that you speak to an attorney about your concerns. There are cases that can be referred to to guide a determination of what it means to be fit or unfit or what an actual detriment is and is not. My hope is that you and your daughter can make amends, so that you can continue to provide the care you think your grandson needs but does not get from his mother.
John Hartzell is a practicing Walla Walla attorney. No attorney-client relationship is established via this column, which is for educational purposes only and is not intended as legal advice. Any information given is to illustrate basic legal concepts and does not state how any court would decide any matter. Have a question? Ask John at firstname.lastname@example.org.