§ 46.07 NECESSARY PARTIES

• Jurisdiction: Washington

§ 46.07 NECESSARY PARTIES

Both the PKPA and the UCCJA address the right to be included in a child custody proceeding. To assure the presence of all the appropriate parties, the UCCJEA imposes on each party an initial and continuing duty to inform the court of any person the child has lived with during the previous five years and of any other litigation concerning the child. RCW 26.27.281. This requirement is discussed in § 46.09[1], below. A person who has been appropriately served is bound by an order given by a court with subject matter jurisdiction, RCW 26.27.061, but if a person who is entitled to notice under state and federal law is not included in a child custody proceeding, the ensuing order may not be entitled to recognition by other states. Examples of cases refusing recognition on this basis are given in § 46.10, below.

[1] Parents Whose Rights Have Not Been Terminated

Under the PKPA and UCCJEA, parents whose parental rights have not been terminated must be given notice of the custody proceedings and joined. 28 U.S.C. § 1738A(e); RCW 26.27.241. This protection for parents is the same as was present under the UCCJA. See State v. Carver, 113 Wn.2d 591, 595-96, 609-10, 781 P.2d 1308 (1989), amended, 789 P.2d 306 (1990) (decree not entitled to recognition after reconciliation attempted, temporary order expired of its own terms, and final decree entered by default without proper notice to parent); In re Marriage of Zadorozny, 70 Wn. App. 464, 471, 853 P.2d 960 (1993) (parent who left Canada with child entitled to appropriate notice of custody proceeding in Canada).

[2] Nonparents Claiming a Right to Custody or Visitation

The right of a third party or nonparent to be included in a proceeding affecting custody or visitation is not clear or consistent nationally. The UCCJA contained broad provisions for the inclusion of persons who were entitled to notice, joinder, and intervention in custody proceedings, under the theory that all persons who had any interest in the child should be served and bound by the ensuing order. The PKPA contains language that is similar to that of the UCCJA in 28 U.S.C. § 1738A(e). The UCCJEA approach is less inclined to provide rights to third parties unless other state law provides standing. However, the question of when a nonparent or third party has standing to seek custody or visitation with a child has been and continues to be a difficult one, because the standards are different from state to state and the case law is...