                                                                              FILED 

                                                                        SEPT 30, 2014 

                                                                 In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division £II 



            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


In re the Custody of S.R.                     )
                                              )         No. 31373-5-111
KEVIN JAMES                                   )
CATHERINE LYLE,                               )
                                              )
                      Respondents,            )
                                              )         PUBLISHED OPINION
       v.                                     )
                                              )
ALICIA McDONALD                               )
JACK ROSMAN                                   )
JAMES and DEENA McDONALD,                     )

                                              )

                      Appellants.             )


       KORSMO, J. -    We conclude that when an outside party challenges a third party

nonparental child custody order, the "fourth party" must seek to modify the existing

custody ruling rather than file a new third party action. We reverse and remand this action

for further proceedings.

                                          FACTS

       S.R. was born to Alicia Croston (Mother) and Jack Rosman (Father) on November

4, 2004. She resided initially with her mother for two years. 1 At that point, S.R. was

moved to the care of Ms. Croston's parents, James and Deena McDonald, due to the fact


       1  The father, who works in Alaska, did not reside with the mother and has not
sought custody of the child, although he is active in S.R.'s life and has sought occasional
visitation.
No. 31373-5-II1
In re Custody ofS.R.


that S.R. 's asthma acted up badly in the face of her mother's smoking habit. The

McDonalds eventually filed a third party custody action and the mother joined it. On

November 6, 2008, the court granted a final order granting third party custody to the

McDonalds.

       Respondents Kevin James and Catherine Lyle filed a nonparental custody petition

in late October 2009. Ms. Lyle is Jack Rosman's sister. Both parents and the McDonalds

joined the petition and S.R. moved into the James-Lyle home. Due to health concerns and

advancing age, the McDonalds believed that S.R. should be with younger parents.

Although joining the petition, the mother later filed declarations that disagreed with

proposed visitation and stating her intent to eventually take full custody of S.R. The

James-Lyle petition focused on deficiencies of the parents and did not address the

McDonalds. After finding good cause, the court entered an order granting temporary

placement with James and Lyle on January 29, 20 10. The order stated that the rights and

obligations of the McDonalds under the 2008 order "shall transfer to Kevin James and

Catherine Lyle under this order on a temporary basis."

      After an allegation that Ms. Croston's boyfriend (and now current husband)

molested S.R., the court restricted contact between him and the child. Four months later,

Ms. Croston and the McDonalds moved to dismiss the James-Lyle petition. The

McDonalds alleged that the James-Lyle petition was improperly filed and sought

reinstatement of the 2008 custody order. The McDonalds and the mother both sought to

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No. 31373-5-III
In re Custody o/S.R.


withdraw their joinder with the petition. For relief, the mother sought to have S.R.

returned to the McDonalds.

       The motions were heard before a court commissioner on September 30,2010. The

commissioner adjusted the residential schedule and permitted the McDonalds and the

mother to withdraw their joinder to the James-Lyle petition. 2 He also consolidated the

2009 James-Lyle petition with the 2008 case and denied the motion to dismiss the James-

Lyle petition in light of a pending trial on the petition. The commissioner ordered a

bonding and attachment study.

       The record 3 does not reflect what happened with the then-pending trial, but the

court entered on January 24, 2011, findings of fact and conclusions of law in support of a

final parenting plan in favor ofMr. James and Ms. Lyle. The order indicates that standing

was "by agreement." Section 2.7 of the order, "Best Interest of the Child," focused on'the

fact that S.R. had not resided with either parent since 2008 and that neither parent was

able to consistently perform parental functions. Section 2.8, "Adequate Cause," was left

blank. The petition indicated that the mother would show adequate cause by completing a




       2 The commissioner also indicated he would permit the father to withdraw his
joinder, although the father had not asked to withdraw it and he appeared to have no reason
to want to do so.
       3Respondents' brief indicates that there was no "contested hearing" conducted. Br.
ofResp't at 10. A subsequent scheduling order indicates that a trial was scheduled for
March 14,2011.

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No. 31373-5-111
In re Custody o/S.R.


Circle of Security program and could seek modification of the plan to change primary

placement. No decree granting the James-Lyle petition was entered.

       Five months later, James and Lyle moved to adjust the residential plan in response

to S.R. being exposed to secondhand smoke at the McDonalds' residence. Finding no

basis for modification, the court did clarify that S.R. was not to be exposed to any

secondhand smoke. In November 2011, the parties were back in court on the mother's

motion to expand visitation. The motion was denied due to the fact that the therapist S.R.

and her mother had been seeing had stepped down.

       James and Lyle filed a motion for review of the third party custody order on August

21,2012. They sought to strike the provision allowing Ms. Croston to seek modification

of the parenting plan upon showing significant improvement in her life. Ms. Croston and

her parents opposed the motion.

       The court heard the motion September 6, 2012. The court indicated that in view of

Ms. Croston's failure to progress toward achieving stability in her life and meeting other

requirements such as cessation of smoking, it was in the best interests of S.R. to enter a

final parenting plan. The court granted the motion to strike the reunification provision of

the 2011 order. A new final parenting plan that deleted the reunification provision was

filed November 1,2012. A decree of nonpar ental custody was filed December 3,2012.

      Ms. Croston, but not her parents, filed a notice of appeal to this court on December

31, 2012. Respondents James and Lyle moved to dismiss, arguing that the appeal was

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No. 313 73-5-III
In re Custody o/S.R.


untimely. Our commissioner disagreed, concluding that the appeal was timely taken from

the custody decree. Respondents subsequently moved to strike appellant's brief on the

basis that she was not an aggrieved party since the relief she sought-reinstatement of the

2008 order and return of custody to the McDonalds-was unavailable because the 2008

order no longer existed and the McDonalds were not party to the appeal. Our

commissioner again disagreed and a panel of this court denied a motion to modify that

ruling.

                                          ANALYSIS

          Ms. Croston contends that the trial court erred in the process by which it changed

custody to James and Lyle, while the respondents contest that view and also argue that

Ms. Croston lacks standing to argue to return custody to her parents when they did not

appeal. We address the standing issue first before turning to the issues presented by Ms.

Croston.

          Standing

          Revising their "aggrieved party" argument, the respondents argue that Ms. Croston

has no standing to obtain relief for the McDonalds where they are not pursuing relief

themselves. However, the fact that her parents might obtain relief without seeking it if

Ms. Croston prevails does not preclude Ms. Croston from seeking to vindicate her own

rights. Essentially, she has both first party and, potentially, third party standing in this

action.

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No. 31373-5-111
In re Custody ofS.R.


       A party has standing to pursue an action when she is within the zone of interests

protected by a statute and has suffered an injury in fact. Branson v. Port ofSeattle ,

152 Wn.2d 862, 875-76, 101 P.3d 67 (2004). In cases of third party standing, Washington

courts apply the three factors used by the United States Supreme Court:

       The litigant must have suffered an "injury in fact," thus giving him or her a
       "sufficiently concrete interest" in the outcome of the issue in dispute, . . .
       the litigant must have a close relation to the third party, ... and there must
       exist some hindrance to the third party's ability to protect his or her own
       interests.

Powers v. Ohio, 499 U.S. 400, 411, IllS. Ct. 1364, 113 L. Ed. 2d 411 (1991) (internal

citations omitted); see TS. v. Boy Scouts ofAm., 157 Wn.2d 416, 424 n.6, 138 P.3d 1053

(2006) (citing Mearns v. Scharbach, 103 Wn. App. 498,512,12 P.3d 1048 (2000));

State v. Burch, 65 Wn. App. 828, 837, 830 P.2d 357 (1992).

       We have no difficulty discerning that a parent has statutory standing in a nonparental

custody case. RCW 26.10.030(2) requires that 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." This statute puts the parents within the zone of interests

for first party standing.

       The remaining question is whether the mother has suffered an injury in fact. That

injury is clear here. The effect of the decree is to move custody of S.R. from the care of

those to whom Ms. Croston had entrusted her daughter to others not of her choosing. The

revised order also limits her ability to reclaim custody of her daughter and also lessens her

                                             6

No. 3l373-5-II1
In re Custody o/S.R.


visitation. Ms. Croston has shown injury in fact as well as being with the statutory zone

of interests. She has standing to pursue this appeal.

       The respondents focused their argument largely on third party standing, but we

need not address that argument in light of Ms. Croston's personal standing to proceed with

the appeal. We do note, however, that she easily would satisfy the first two prongs of the

Powers third party standing test, although on this record we cannot tell if she could satisfy

the third prong. In light of the McDonalds' participation in this case up to the point of

appeal, the record does not reflect that there is some hindrance to their continued

participation that would entitle Ms. Croston to act on behalf of her parents, but we are

unable to foreclose that possibility. The issue, however, is of no consequence to this

action since appellant clearly has standing under the statute. However, Ms. Croston does

not have the ability to argue issues that might pertain only to her parents and we will

ignore claims she makes on their behalf.

       Ms. Croston has personal standing to pursue this appeal.

       Changing a Nonparental Custody Order

      This case presents the procedural question of how a "fourth party" should proceed

in light of an existing nonparental custody ruling. Washington courts have not decided if

the appropriate procedure is to file a new nonparental custody action, as happened here, or




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No. 31373-5-III
In re Custody o/S.R.


to file to modify an existing order.4 Although either approach potentially is justifiable

under the statutes, we believe that modification best effectuates legislative policy.

       Chapter 26.10 RCW sets forth the procedure for nonparental actions for child

custody. A nonparental custody petition is available in two circumstances: (1) the child is

not in the custody of one of its parents or (2) the petitioner alleges neither parent is a

suitable custodian. RCW 26.10.030(1);5 RCW 26.10.032(1). Ifa motion for child

custody establishes "adequate cause for hearing the motion," the court will set a show

cause hearing. RCW 26.1 0.032(2). The petition can be granted if it is in the best interests

of the child to do so. RCW 26.10.100.

       Un surprisingly, the statute also makes provision for modification of nonparental

custody orders. "The court shall hear and review petitions for modifications of a

parenting plan, custody order, visitation order, or other order governing the residence of a



        4 The Washington Supreme Court addressed one case where there were competing
nonparental custody petitions, but no existing nonparental custody judgment, in
In re Custody a/Brown, 153 Wn.2d 646, 105 P.3d 991 (2005). An unpublished case from
Division Two of this court that is factually similar to this case is In re Custody 0/ M WF.,
noted at 170 Wn. App. 1039, 2012 WL 5354567. There a nonparent also attempted to
attack an existing nonparental custody order by filing a new petition and was told that she
should have filed a motion to modify the existing judgment. As an unpublished case, we do
not rely upon M WF. as authority. GR 14.1(a).
        5 In part, the relevant sentence provides: "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." RCW 26.10.030(1).

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No. 31373-5-111
In re Custody ofS.R.


child ... pursuant to chapter 26.09 RCW." RCW 26.10.190(1) (partial). Once again, a

party seeking modification proceeds by submitting an affidavit alleging facts and the

court, upon determining that "adequate cause" exists, shall set a show cause hearing.

RCW 26.10.200.

       The modification standards of chapter 26.09 RCW referenced by RCW 26.10.190(1)

are found in RCW 26.09.260. In part, subsection (1) provides that

       the court shall not modify a prior custody decree or a parenting plan unless
       it finds, upon the basis of facts that have arisen since the prior decree or
       plan or that were unknown to the court at the time of the prior decree or
       plan, that a substantial change has occurred in the circumstances of the
       child or nonmoving party and that the modification is in the best interest of
       the child and is necessary to serve the best interests of the child.

RCW 26.09.260(1).

       (2) In applying these standards, the court shall retain the residential 

       schedule established by the decree or parenting plan unless: 


       (a) The parents agree to the modification;

       (b) The child has been integrated into the family of the petitioner with the
       consent of the other parent in substantial deviation from the parenting plan;

       (c) The child's present environment is detrimental to the child's physical,
       mental, or emotional health and the harm likely to be caused by a change of
       environment is outweighed by the advantage of a change to the child.

RCW 26.09.260(2) (partial). Thus, modification is available when a substantial change in

circumstances and the best interests of the child require it, and either (a) the parents agree,




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No. 31373-5-III 

In re Custody 0/ S.R. 



(b) the child has already integrated into another family, or (c) a detrimental environment

dictates that change is necessary. 6

       Instead of following the modification procedure, the respondents brought a new

nonparental custody action. On the face of the statute, their decision was understandable

because a nonparental custody action is available "if the child is not in the physical

custody of one of its parents." RCW 26.10.030(1). However, for several reasons we do

not believe that the legislature intended that this approach be used when a nonparental

custody order already is in existence. An existing nonparental custody judgment must be

modified if a new party seeks custody rather than being superseded (or ignored) by a new,

later judgment.

       First, we note that legislative policy is in favor of finality of custody determinations.

E.g., In re Marriage o/Thompson, 32 Wn. App. 418, 421, 647 P.2d 1049 (1982)

(dissolution statutes seek to (1) maximize finality of custody awards to avoid repeated

litigation of custody issues, (2) prevent "ping-pong" custody litigation, and (3) preserve •

basic policy of custodial continuity); In re Marriage   0/ Roorda, 25   Wn. App. 849, 851,

611 P .2d 794 (1980) ("strong presumption" in statutes and case law in favor of custodial

continuity and against modification). The legislature, likewise, has stated that one of its

policies behind the custody statutes is to limit disruption to the children: "Further, the best


       6The statute also provides a fourth possibility if one parent is in contempt of
custody orders or has been convicted of custodial interference. RCW 26.09.260(2)(d).

                                             10 

No. 31373-5-II1
In re Custody a/SR.


interest of the child is ordinarily served when the existing pattern of interaction between a

parent and child is altered only to the extent necessitated by the changed relationship of the

parents or as required to protect the child from physical, mental, or emotional harm."

RCW 26.09.002 (partial). This policy is critically important to our construction of the

statute.

       RCW 26.1 0.030( 1) is a broadly written statute authorizing a cause of action for

those who seek the custody of someone else's children. A petitioner need only show that

the child no longer lives with the parents-a factor that will be present in every case

where a nonparental custody order has already been entered-or that the parents are unfit,

a factor that has little relevance when a child currently is living with someone other than

her parents. Every existing nonparental custody decree would satisfy at least one of these

factors and, thus, be subject to attack by the next person coming along who desires to gain

custody of a child because "good cause" would already exist. RCW 26.10.030(2). At that

point the newcomer would only need to show that it was in the best interests ofthe child

to live with him or her rather than the existing custodian. RCW 26.10.100.

       This is in contrast to the more stringent requirements for modification of custody .

orders found in RCW 26.09.260. As noted previously, modification is only available if

there has been a substantial change in circumstances, the best interests of the child require

it, and one of the factors ofRCW 26.09.260(2) are present. By using the nonparental

custody petition process, a would-be custodian need only address the best interests test.

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No. 31373-5-111 

In re Custody 0/ S.R. 



The legislature could not have intended to bypass the modification process when it

designed the noncustodial parent petition. The modification statute would effectively only

apply to the parties to the original nonparental custody decree. 7

       We also find support for this approach in In re Parentage o/CMF., 179 Wn.2d 411,

314 P.3d 1109 (2013). There the father's parentage was established by a parentage order

that also set custody of the child with the mother pending either party pursuing a parenting

plan. The father subsequently petitioned the court to enter a parenting plan. Id. at 416.

Our court concluded that the father had followed the wrong procedure. Instead of filing a

new petition, he should have used the modification procedures ofRCW 26.09.260 to

address the child's custody. Id. at 420-29. Even though CMF. involved two parents, to

whom the provisions ofRCW 26.09.260 automatically apply, it still is instructive by

defining a custody decree broadly for purposes of the modification statute. A nonparental

custody order is even more clearly a custody decree than a temporary custody order filed

in conjunction with a parentage determination.

       Use of the nonparental custody action when a nonparental custody order already

exists also mistakenly puts the focus on the child's past living conditions rather than the


       7  Indeed, nonparental custodians likewise would have incentive to file a new petition
rather than seek to modify an existing decree since it would be far easier to establish
adequate cause (having done so previously) rather than prove substantial changes to the
status quo before addressing what is in the best interests of the child. Only the parents,
already having lost custody to the third party, would be forced to follow the modification
procedure.

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No. 31373-5-111
In re Custody o/S.R.


present conditions. The fact that the parents may have been unfit custodians and that the

child no longer lives with them-the two bases for a nonparental custody action-are

backward looking factors at the time of a fourth party action. A retrial of the child's past

should not be a basis for a new proceeding when those issues have already been addressed

by the initial nonparental custody action. Instead, the focus should be-as it is in a

modification-on the child's current living conditions. Only if there is need should the

current custody ruling be reopened. The modification factors look to the present, while

the new nonparental custody action factors look to the past. 8 For this reason, too, we

believe the legislature did not intend that the nonparental custody action be used in place

of a motion to modify.

         Finally, allowing a new action is effectively a collateral attack on an existing

judgment and would present the danger of conflicting judgments if the trial court is unaware

of or   fail~   to act upon the earlier decree. The integrity of the judicial system demands

consistency and finality. See generally 14A WASHINGTON PRACTICE: WASHfNGTON

PATTERN JURY INSTRUCTIONS:           CIVIL   35:21, at 510 (2009). The proper way to change an

existing judgment is by action to reopen that judgment rather than by an independent action

that would have the effect of entering a new decree. If an older judgment is to be altered, it

typically should be done within that case and not in a different proceeding.


       8 CMF. likewise directed the trial court on remand to focus on the child's current
conditions rather than the past. 179 Wn.2d at 433.

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No. 31373-5-III
In re Custody ofS.R.


       We conclude that when a nonparental custody order has been entered, anyone

desiring a change of custody must move to modify that ruling rather than file another

nonparental custody proceeding. 9 It was error for the respondents to proceed by filing a

new petition for nonparental custody in this case.

       When a party fails to follow the proper procedure, the remedy is a remand for

further proceedings to apply the correct process rather than to dismiss an action. CMF.,

179 Wn.2d at 429-32. On remand, the respondents must make the showing of adequate

cause required by the modification statute, RCW 26.09.260. Id. at 432. We accordingly

do not address Ms. Croston's additional argument that the court also erred in proceeding

without first finding adequate cause to do so after she and her parents withdrew their

consent to the petition.

       Reversed and remanded for further proceedings.




                                                                 orsmo, J.
WE CONCUR: 





       Brown, A . .1.         .



       9 Standing to intervene in the existing case normally would be supplied by meeting
one of the criteria of RCW 26.09.260(2).

                                            14
