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In re Wolcott

March 24, 1997

IN RE THE VISITATION RIGHTS WITH: JUSTIN ROSS WOLCOTT. DAVID L. CLAY, APPELLANT,
v.
LISA L. WOLCOTT, RESPONDENT.



Appeal from Superior Court of Snohomish County. Docket No: 93-3-03261-9. Date filed: 11/22/95. Judge signing: Hon. Paul D. Hansen.

Authored by Ronald E. Cox. Concurring: H. Joseph Coleman, C. Kenneth Grosse.

The opinion of the court was delivered by: Cox

COX, J. -- David Clay, the self-described "psychological parent" of Justin Wolcott, petitioned for visitation with Justin. Justin is the son of Clay's former companion, Lisa Wolcott. Justin is not biologically related to Clay. The trial court dismissed the petition, holding that Clay had no standing, and awarded fees in favor of Wolcott. Because there was no custody proceeding pending at the time of Clay's petition for visitation and the court did not otherwise err, we affirm.

Justin was born to Lisa Wolcott on April 10, 1986. Shortly after Justin's birth, Wolcott began dating Clay. They started living together in May of 1988. Justin lived with them. Clay alleges that during this time, he established a close relationship with Justin and regarded him as a son. Clay and Wolcott separated in April 1992.

Clay alleges that beginning in September 1993, Wolcott began to "place impediments" in the way of his relationship with Justin. He subsequently filed a petition to formally establish visitation rights with Justin. The court commissioner entered a temporary order allowing visitation every other weekend.

Wolcott moved to revise the ruling. The superior court granted a revision allowing one Saturday per month visitation. Wolcott appealed that order.

A commissioner of this court granted Clay's motion to dismiss the appeal because the temporary visitation order was not a final order. The commissioner also determined that the order was not subject to discretionary review because Clay had standing to petition for visitation and Wolcott failed to show that the trial court had committed obvious or probable error.

In September 1994, Wolcott moved for summary judgment and in the alternative for declaratory judgment. She also sought to terminate third party visitation. Clay moved to strike the hearing on this motion. Judge Trumbull granted the motion to strike and awarded Clay $1,000 in terms.

At the trial on the petition for visitation in October 1995, the court concluded that Clay did not have standing and therefore dismissed the proceeding. It also awarded Wolcott $3,000 in attorney fees.

I

Standing

Clay bases his right to petition for visitation on RCW 26.10.160(3). That statute states:

Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances. *fn1

Clay argues that the trial court erred in determining that he did not have standing to petition for visitation with Justin. He contends that the literal language of RCW 26.10.160(3) provides that any ...


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