[No. 58658-1-I. Division One. November 5, 2007.]
In the Matter of the Parentage of [4] Juveniles — Parental Relationship — Determination — De Facto Parent — Test. A person does not become a child's de facto parent unless (1) the natural or legal parent consents to and fosters the parent-like relationship, (2) the person and the child have lived together in the same household, (3) the person has assumed obligations of parenthood without expectation of financial compensation, and (4) the person has been in a parental role for a length of time sufficient to have established with the child a relationship that is parental in nature. [5] Juveniles — Parental Relationship — Determination — De Facto Parent — Stepparent — Effect. A person does not become a child's de facto parent merely by virtue of having been married for a significant length of time to one of the child's actual parents. [6] Juveniles — Parental Relationship — Determination — De Facto Parent — Right of Action — Determination. A determination as to whether a person has a common law right of action to be declared a child's de facto parent depends on whether the circumstances of the case permit application of the law of de facto parenthood and not on whether the elements of the de facto parent test have been met. [7] Juveniles — Custody — Nonparent Petition — Stepparent — Former Stepparent — In General. A child's former stepparent may petition for residential time with the child under the nonparent petition provisions of RCW 26.10.030. [8] Juveniles — Visitation Rights — Nonparent — Stepparent — Former Stepparent — In General. Under the third party visitation provisions of RCW 26.09.240 before it was ruled to be unconstitutional in In re Parentage of C.A.M.A., 154 Wn.2d 52 (2005), a child's former stepparent could petition for visitation rights with the child. [9] Juveniles — Parental Relationship — Determination — De Facto Parent — Stepparent — Right of Action — Common Law. A child's former stepparent does not have a common law right to be declared a de facto parent and awarded residential time with the child if statutory provisions exist by which the former stepparent may petition for custody or visitation rights. That it may be difficult for the former stepparent to fulfill statutory requirements does not mean that the statutory scheme is inadequate or incomplete so as to allow application of the de facto parent doctrine. [10] Constitutional Law — Due Process — Liberty Interest — Parent-Child Relationship — Care and Custody of Child — Interference — Test. A fit parent has a fundamental right to the care, custody, and control of his or her own children. Interference by others, including courts, is permitted only under limited circumstances and requires a heightened showing that placement of the child with the parent would result in actual detriment to the child. The more lenient "best interests of the child" standard is inapplicable. [11] Juveniles — Parental Relationship — Determination — De Facto Parent — Right of Action — No Shared Residence Within Six Months of Filing Action. A person may be foreclosed from bringing a common law cause of action for de facto parenthood if the person has not resided with the child within the six-month period prior to the filing of the action. [Dictum.] [12] Divorce — Child Custody — Parenting Plan — Modification — Governing Law. The modification of a parenting plan is governed by RCW 26.09.260 and .270. [13] Divorce — Child Custody — Parenting Plan — Modification — Adequate Cause — Necessity. A trial court may not proceed on a motion to modify a parenting plan under RCW 26.09.270 without first determining that adequate cause exists. [14] Divorce — Child Custody — Parenting Plan — Modification — Hearing — Necessity — Prima Facie Case. The adequate cause requirement of RCW 26.09.270 for holding a hearing on a motion to modify a parenting plan is not satisfied absent prima facie evidence establishing the requirements of RCW 26.09.160 that (1) there has been a substantial change in the circumstances of the child or the nonmoving party, (2) modification is in the best interests of the child, and (3) modification is necessary to serve the best interests of the child. [15] Divorce — Child Custody — Parenting Plan — Modification — Hearing — Adequate Cause — Review — Standard of Review. A trial court's determination that there is adequate cause to hold a hearing on a motion to modify a parenting plan is reviewed for an abuse of discretion. The court's failure to apply the modification requirements of RCW 26.09.260 in making the adequacy determination constitutes an abuse of the court's discretion. Nature of Action: A former stepfather of a child who was the subject of a parenting plan between her two divorced parents sought to be declared a de facto parent of the child and to be awarded residential time with her on that basis. Superior Court: The Superior Court for Snohomish County, No. 06-3-00974-8, Tracy Waggoner, J. Pro Tem., on July 11, 2006, entered (1) a temporary order making a threshold determination that the plaintiff is a de facto parent and ordering a reunification process between him and his stepdaughter and (2) an order appointing a guardian ad litem for the stepdaughter. On August 4, 2006, Larry E. McKeeman, J., entered an order denying the mother's motion to revise the two orders and, on August 8, 2006, Eric Z. Lucas, J., entered an order denying the mother's motion to dismiss the action for failure to state a claim on which relief could be granted. Court of Appeals: Holding that the plaintiff does not have a common law right of action to be declared a de facto parent of his former stepdaughter, that the existing parenting plan for the child may not be modified without the statutorily required showing of adequate cause, and that adequate cause has not been shown, the court reverses the trial court's orders and dismisses the plaintiff's action. Rebecca J. Torgerson- (of Brewe Layman) and Catherine Wright Smith- and Valerie A. Villacin- (of Edwards Sieh Smith & Goodfriend, PS), for appellant. James D. Shipman- (of Podrasky Shipman & Shields), for respondent. ¶1 COX, J. — The primary issue in this case is whether John Corbin has a cause of action as a de facto parent for residential time with M.F., his former stepdaughter. ¶2 The parties do not substantially dispute the material facts. Patricia Reimen and Edwin Frazier are the biological parents of M.F., whose date of birth was December 15, 1993. The parental rights and obligations of Reimen and Frazier with respect to M.F., their daughter, are set forth in the parenting plan entered on August 2, 1995, as part of the dissolution of their marriage. ¶3 The parenting plan provides that M.F. will reside primarily with Reimen, with alternating weekend residential time and some holidays with Frazier. The plan also provides that Frazier and Reimen shall have joint decision making power. Frazier, who lives in Wenatchee, has consistently paid his child support obligation to Reimen, who lives in Monroe. While Reimen and Frazier have not always strictly adhered to the residential schedule, the plan has never been modified by court order. ¶4 Reimen and Corbin were married in October 1995. They are the parents of two sons. Reimen and Corbin separated in 2000. The parental rights and obligations of Reimen and Corbin with respect to their two sons are set forth in the parenting plan entered on December 13, 2002, as part of the dissolution of their marriage. This parenting plan does not apply to M.F. Nevertheless, Corbin continued to have regular contact with M.F. and his two sons with Reimen until August 2005. ¶5 In August 2005, Corbin moved to modify the parenting plan governing the two sons he had with Reimen. After this, M.F. abruptly stopped spending time with Corbin. Reimen and Corbin dispute why M.F. stopped seeing him. ¶6 In November 2005, the supreme court decided In re Parentage of L.B. ¶7 The record that is before us does not show whether Frazier appeared below. He has not participated in this appeal. ¶8 Reimen, pursuant to CR 12(b)(6), moved to dismiss the petition. The trial court denied the motion in its oral decision of June 7, 2006. ¶9 Following the court's oral decision in June, a superior court commissioner entered two orders. One was a temporary order that made a threshold determination that Corbin is a de facto parent and ordered a reunification process between him and his former stepdaughter. The other order appointed a guardian ad litem for M.F. and directed further actions. A superior court judge denied Reimen's motion to revise these two orders. ¶10 We granted discretionary review. DE FACTO PARENT ¶11 Reimen argues that the trial court erred in denying her CR 12(b)(6) motion to dismiss Corbin's action. We hold that L.B. does not create a common law cause of action for a former stepparent as a de facto parent of a former stepchild where statutory remedies are available. ¶14 Here, Corbin did not assert any of the statutory bases for seeking contact with M.F., his former stepdaughter. ¶16 Assuming for purposes of argument only that the proper focus of the threshold inquiry for this motion is the test stated in L.B., the trial court misapplied that test. De facto parent status does not exist merely by the fact of marriage and the length of the marriage. Rather, as the four elements of the test state, more is required. Among the additional elements is the requirement that the natural or legal parent consents to and fosters the parent-like relationship. The petitioner and child must also live together in the same household. The petitioner must also assume parental obligations without expectation of financial compensation. And petitioner must show that the parental role has existed for sufficient time to establish the required relationship with the child. The trial court's statement of what constitutes a prima facie case for de facto parenthood omitted reference to these other necessary factors. Accordingly, it was incorrect. ¶21 In an attempt to persuade this court that the statutory procedures need not be followed here, Corbin urges that where a child's well-being requires recognition of three parents, the court should endorse a flexible approach. He emphasizes legal developments recognizing that a child has an interest in maintaining relationships independent of parental interests. Further, Corbin argues that under Washington's Parenting Act of 1987, chapters ¶22 Even if we assume that some or all of the above assertions are correct, we are not persuaded that they support disregarding existing statutes dealing with this subject matter. Moreover, these arguments do not compel courts to fashion a remedy. ¶23 We are also concerned about the constitutional implications of permitting a former stepparent and the courts to intervene in the decision-making process of a fit parent. Here, Corbin does not claim and no court has determined that Reimen is an unfit parent. Moreover, there is no claim and no court determination that there is any detriment to the child. ¶24 As Troxel v. Granville and other cases indicate, there is a fundamental right that a fit parent has in the care, custody, and control of a child. ¶25 We have no reason in this case to either adopt or reject principles set out in the American Law Institute's (ALI) Principles of the Law of Family Dissolution. But we note that Corbin may be foreclosed from now bringing a de facto parent action under those principles. They provide that "[a]ll of the following individuals should be given a right to bring an action: . . . (c) a de facto parent of the child, . . . who has resided with the child within the six-month period prior to the filing of the action or who has consistently maintained or attempted to maintain the parental relationship since residing with the child." ¶26 Assuming for purposes of argument only that Corbin qualified as a de facto parent under ALI Principles, his action would arguably be barred because he failed to bring it within the requisite six-month period stated above. Parentage of L.B. ¶27 We turn to Corbin's reliance on L.B. for authority to bring his petition. We conclude that case is distinguishable and does not control this matter. ¶28 There, the parties became romantically involved in a same-sex relationship during which they cohabited. ¶29 One of the members of the relationship petitioned for the establishment of parentage under the statutes. She also sought to be declared a parent by estoppel or as a de facto parent. ¶30 The supreme court framed the issue before it as 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." ¶31 The L.B. court's exhaustive review of the State's legislative enactments and case law revealed that Washington courts have a recognized and accepted role in resolving family law disputes, especially when the legislative enactments speak to an issue incompletely. ¶32 Acknowledging that the State's current statutory scheme fails to contemplate all potential scenarios that could arise in the changing and evolving notion of family relations, the court found that State statutes failed to speak to the particular situation presented in L.B. Therefore, in order to "fill the interstices that our current legislative enactment fails to cover in a manner consistent with our laws and stated legislative policy," the supreme court fashioned an equitable remedy. ¶33 L.B. is distinguishable. There, the court framed the issue in terms of whether an equitable remedy was required in the absence of a statutory procedure regulating the subject matter. Here, there is a statutory framework that is designed to address custody and visitation under the circumstances of this case. As we have already observed, Corbin has failed to persuade us that the statutory procedures are inadequate or incomplete. That it may be difficult for him to fulfill the statutory requirements does not persuade us that those requirements are inadequate or incomplete in the sense that requires application of the de facto parent doctrine. ¶34 We also note that both L.B. and the cases on which it relied involved providing access to the courts to those who might otherwise have been barred from visitation with the child. Here, there is no such similar bar. Rather, this is a case of disputes arising in a blended family resulting from consecutive marriages. The legislature contemplated this situation in the existing statutory framework. ¶35 To summarize, there is no cause of action of de facto parentage that supports the petition of Corbin for residential time with his former stepdaughter. MODIFICATION OF PARENTING PLAN ¶36 Reimen argues that even if Corbin could establish that he is a de facto parent, he must still meet the adequate cause threshold to modify the existing parenting plan. She also argues that he has failed to do so. We agree with both contentions. ¶39 Here, the declaration in support of Corbin's motion did not address the adequate cause threshold standard of RCW 26.09.260. Moreover, the court failed to make any of the statutorily required findings for adequate cause. ¶40 Although Corbin argues that the adequate cause determination was implicit in the court's order, a review of the relevant parts of the order shows otherwise. The superior court commissioner stated: 3. This is a new area of law and it would seem that there needs to be a threshold determination in this case, which was what was contemplated in L.B. By way of comparison, the closest thing the court can look at is an adequate cause determination, which is more than a prima facie case; there has to be solid factual basis for sending the matter to trial. It is not conclusively determinative on a trial court regarding the outcome of the case but sets it into a procedural posture and allows temporary orders to proceed and allows it to go to trial where that may be affirmed or dismissed. That is the proper process in this case. If there is no threshold, there would be no purpose in continuing the matter. ¶41 These observations do not fulfill the adequate cause requirements of the statutes. Failure to apply the modification requirements of RCW 26.09.260 constitutes an abuse of discretion. OTHER ORDERS ¶42 The remaining orders that are before us for review are the superior court's order denying Reimen's motion for revision of the commissioner's two orders and the order appointing the guardian ad litem. We apply the usual standard of review to these orders. ¶43 There is no cause of action to support this case. Accordingly, these orders are improper. ¶44 We reverse the order denying Reimen's CR 12(b)(6) motion, the order on revision, and the two underlying orders of the commissioner. We dismiss Corbin's petition seeking visitation. COLEMAN and BECKER, JJ., concur.