MADSEN, J. -- The issues presented in these three consolidated cases
are whether petitioners had standing to petition for visitation under either
RCW 26.10.160(3) or former RCW 26.09.240 and whether these statutes
violate the parents' constitutionally protected interest in raising their
children without state interference. We conclude petitioners have standing
but, as written, the statutes violate the parents' constitutionally protected
interests. These statutes allow any person, at any time, to petition for
visitation without regard to relationship to the child, without regard to
changed circumstances, and without regard to harm.
 

STATEMENT OF THE CASE

        Following a trial in October 1995, Judge Hansen dismissed Clay's
petition for visitation holding that Clay

    Troxel. Natalie and Isabelle Troxel are the daughters of Brad Troxel
and Tommie Granville, who never married. After their separation, Brad
lived with his parents, Jenifer and Gary Troxel, and the girls visited
their father at their grandparents' home on occasion. Brad committed
suicide in May, 1993. At first the girls continued to visit the Troxels
regularly, but their mother soon decided to limit visitation. In December
1993, the Troxels filed a petition pursuant to RCW 26.10.160(3) and former
RCW 26.09.240 to obtain visitation rights with their grandchildren. In
1995, the trial court entered a visitation decree ordering visitation one
weekend per month, one week during the summer, and four hours on each of
the Troxels' birthdays. Granville appealed, during which time she married
Kelly Wynn, who adopted the girls in February 1996. The Court of Appeals
remanded for entry of findings of fact and conclusions of law, which were
entered in January 1996.

    The Court of Appeals subsequently reversed the visitation order and
dismissed the Troxels' petition for visitation holding that nonparents lack
standing to seek visitation unless a custody action is pending. In re
Visitation of Troxel, 87 Wn. App. 131, 940 P.2d 698 (1997). The Troxels
sought and were granted review by this court.

    Smith. Brian Smith and Kelly Stillwell were married in 1989. In
1992, Stillwell gave birth to daughter, Sara, conceived through artificial
insemination (Brian was not the donor). In 1995, Stillwell petitioned for
dissolution of the couple's marriage. Both parties sought custody of Sara.
On February 25, 1996, Stillwell's mother went to Brian's home and shot him.
Brian fired back, and they were both killed. A dispute then developed
between Stillwell and

DISCUSSION

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.

    The court may order visitation rights for a person other than
a parent when visitation may serve the best interest of the child
whether or not there has been any change of circumstances.

    A person other than a parent may petition the court for
visitation rights at any time.

    The court may modify an order granting or denying visitation
rights whenever modification would serve the best interests of
the child.

STANDING

    In answering the question before this court we must interpret the
meaning of RCW 26.10.160(3) and former RCW 26.09.240. We review questions
of statutory construction de novo. Our Lady of Lourdes Hosp. v. Franklin
County, 120 Wn.2d 439, 443, 842 P.2d 956 (1993). The purpose of statutory
interpretation is to determine and give effect to legislative intent. Duke
v. Boyd, 133 Wn.2d 80, 87-88, 942 P.2d 351 (1997). Legislative intent is
primarily determined from the statutory language. Id.

When the words in a statute are clear and unequivocal, this court is
required to assume the Legislature meant exactly what it said and
apply the statute as written. Although the court should not construe
statutory language so as to result in absurd or strained consequences,
neither should the court question the wisdom of a statute even though
its results seem unduly harsh.

    Both RCW 26.10.160 and RCW 26.09.240 address the rights of nonparents
to seek visitation with a child. Both statutes have been amended several
times, most recently in 1996. As originally enacted in 1973, as part of a
chapter having mainly to do with parenting plans in dissolution actions,
former RCW 26.09.240 provided that a parent not granted custody of a child
is entitled to reasonable visitation rights unless visitation would
endanger the child's health. It also said, "{t}he court may order
visitation rights for any person when visitation may serve the best
interest of the child." Laws of 1973, 1st Ex. Sess., ch. 157, sec. 24. In
1976, the Court of Appeals held the phrase "any person" did not authorize
trial courts to grant visitation rights to "third person," including
grandparents, absent a change of circumstances, such as death of one or
both parents or termination of the nuclear family unit. Carlson v.
Carlson, 16 Wn. App. 595, 597, 558 P.2d 836 (1976).

    The following year, the Legislature amended RCW 26.09.240 to read:
"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 in circumstances. Any person may petition the court for visitation
rights at any time including, but not limited to, custody proceedings."
Laws of 1977, 1st Ex. Sess., ch. 271, sec. 1. The statute retained its
original language regarding visitation rights of parents denied custody.

    In 1987, the Legislature adopted an extensive bill regarding
parenting, child custody and child support. Laws of 1987, ch. 460. One
section of that bill amended RCW 26.09.240 to omit references to visitation
rights of parents denied custody and also to delete the phrase "including,
but not limited to, custody proceedings." Laws of 1987, ch.

    In another section of this bill, the Legislature created a new statute
which overlapped both the old and new versions of RCW 26.09.240. This new
statute gave presumptive visitation rights to parents denied custody and
allowed trial courts to order visitation rights "for any person" to
petition for such rights "any time including, but not limited to, custody
proceedings." Laws of 1987, ch. 460, sec. 44. Although this statute dealt
with visitation rights of both parents and nonparents, it was codified as
RCW 26.10.160, in a new chapter titled "Nonparental Actions for Child
Custody." Laws of 1987, ch. 460, sec. 25.

    In 1989, the Legislature amended RCW 26.10.160 to clarify the
circumstances under which a parent who is denied custody may be allowed
visitation. Laws of 1989, ch. 326, sec. 2(1), (2). That amendment also
divided the statute into four subsections, and placed the language
regarding nonparent visitation rights in subsection (3). Laws of 1989, ch.
326, sec. 2(3). This subsection still permitted "any person" to seek
visitation "at any time" including, but not limited to custody proceedings
"whether or not there has been any change of circumstances." Laws of 1989,
ch. 326, sec. 2(3). That same session, the Legislature also amended RCW
26.09.240 to permit "a person other than a parent" (rather than "any
person") to petition for visitation. Laws of 1989, ch. 375, sec. 13.

    In 1994, the Legislature amended RCW 26.10.160 to further clarify the
circumstances under which parents denied custody may be allowed (or denied)
visitation. Laws of 1994, ch. 267, sec. 2. The Legislature made no changes
to the subsection of the statute allowing "any person" to petition for
visitation "at any time including, but not limited to, custody
proceedings." Laws of 1994, ch. 267, sec. 2(3).

    In 1996, the Legislature again amended both RCW 26.09.240 and RCW
26.10.160. RCW 26.09.240 now requires any nonparent seeking visitation to
show that he or she has a significant relationship with the child. It also
states that a "person other than a parent may not petition for visitation
under this section unless the child's parent or parents have commenced an
action under this chapter," which includes an action for dissolution of
marriage, legal separation or modification of a parenting plan proceeding.
Laws of 1996, ch. 177, sec. 1(1). As amended, RCW 26.09.240(6) also
contains a list of factors for the trial court to take into consideration
when making a determination of the child's best interests. Some of these
factors are the strength of the relationship between the child and the
petitioner, the relationship between the child's parents and the
petitioner, the nature and reason for the parent's objection to visitation,
and any criminal history or history of physical, emotional or sexual abuse
or neglect by the petitioner. Additionally, the restrictions that apply
under RCW 26.09.191 to parents also apply to a petitioner or intervenor who
is not a parent. RCW 26.09.240(7).

    The 1996 Legislature amended RCW 26.10.160 again to clarify the
visitation rights of parents denied custody. Laws of 1996, ch. 303, sec.
2(1)-(2). The Legislature made no changes to subsection (3) of this
statute, dealing with petitions for visitation by "any person" "at any time
including, but not limited to, custody proceedings. . . . whether or not
there has been any change of circumstances." Laws of 1996, ch. 303, sec.
2(3). There is no language limiting actions under RCW 26.10.160(3) in the
manner they are limited under RCW 26.09.240.

    Although the plain language of RCW 26.10.160(3) allows "any person" to
petition for visitation "at any time," the Court of Appeals in Wolcott and
Troxel relied on the 1996 changes in comparable language in RCW 26.09.240
as a basis for avoiding the plain language of the statute. Wolcott, 85 Wn.
App. at 473; Troxel, 87 Wn. App. at 136. The court in Wolcott stated it
could not "conceive of any reason

    Our concern with the Court of Appeals analysis is its reluctance to
address the plain language of RCW 26.10.160(3). Although the Legislature
amended RCW  26.09.240  and other sections of RCW 26.10.160, it left RCW
26.10.160(3) untouched. By its plain language, RCW 26.10.160(3) gives
nonparents an avenue to obtain visitation rights with children outside of a
custody proceeding. We decline to construe the language of RCW
26.10.160(3) because we find that the language of the statute is
unambiguous. Further, we will not read qualifications into the statute
which are not there. A "court cannot read into a statute that which it may
believe the legislature has omitted, be it an intentional or inadvertent
omission." Automobile Drivers & Demonstrators Union Local 882 v.
Department of Retirement Sys., 92 Wn.2d 415, 421, 598 P.2d 379 (1979)
(citing Jepson v. Department of Labor & Indus., 89 Wn.2d 394, 573 P.2d 10
(1977)); accord State v. Taylor, 97 Wn.2d 724, 728, 649 P.2d 633 (1982);
Jenkins v. Bellingham Mun. Court, 95 Wn.2d 574, 579, 627 P.2d 1316 (1981).
Thus, the petitioners in Wolcott and Troxel had standing to petition for
visitation under RCW 26.10.160(3).

    In Smith, application of former RCW 26.09.240 yields the same result.
Appellant, Kelly Stillwell, asserts the trial

However, when the Smiths filed their petition for visitation, RCW
26.09.240 did not require the existence of a pending action under RCW 26.09
as a precondition to a nonparents visitation petition. Former RCW
26.09.240 allowed "{a} person other than a parent" to "petition the court
for visitation {rights} at any time." Thus, under the plain language of
the statute, the Smiths could petition the court for visitation rights "at
any time," as the trial court properly held.1

CONSTITUTIONALITY OF RCW 26.10.160(3)
AND FORMER RCW 26.09.240

    Nevertheless, it is undisputed that parents have a fundamental right
to autonomy in child rearing decisions. The United States Supreme Court
has long recognized a constitutionally protected interest of parents to
raise their children without state interference. See Meyer v. Nebraska,
262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042, 29 A.L.R. 1446 (1923)
(The liberty interest guaranteed by the Fourteenth Amendment includes
freedom "to engage in

    The Supreme Court defined the nature of this constitutionally
protected interest in Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct.
1208, 31 L. Ed. 2d 551 (1972), when it held unconstitutional an Illinois
law which declared that, upon the death of the mother, children of unwed
fathers become wards of the state:

    The private interest here, that of a man in the children he has
sired and raised, undeniably warrants deference and, absent a powerful
countervailing interest, protection. It is plain that the interest of a
parent in the companionship, care, custody, and management of his
or her children 'come{s} to this Court with a momentum for respect
lacking when appeal is made to liberties which derive merely from
shifting economic arrangements.'

    The Court has frequently emphasized the importance of the

137 Wn.2d 15

family.  The rights to conceive and to raise one's children have been
deemed 'essential', 'basic civil rights of man'. . . . 'It is cardinal with
us that the custody, care and nurture of the child reside first in the
parents, whose primary function and freedom include preparation
for obligations the state can neither supply nor hinder.' The integrity
of the family unit has found protection in the Due Process Clause of
the Fourteenth Amendment, the Equal Protection Clause of the
Fourteenth Amendment, and the Ninth Amendment . . . .

    The family entity is the core element upon which modern civilization
is founded. Traditionally, the integrity of the family unit has been
zealously guarded by the courts. The safeguarding of familial bonds is an
innate concomitant of the protective status accorded the family as a
societal institution. A parent's constitutionally protected right to rear
his or her children without state interference, has been recognized as a
fundamental "liberty" interest protected by the Fourteenth Amendment and
also as a fundamental right derived from the privacy rights inherent in the
constitution. Where a fundamental right is involved, state interference is
justified only if the state can show that it has a compelling interest and
such interference is narrowly drawn to meet only the compelling state
interest involved. See Roe v. Wade, 410 U.S. 113, 155, 93 S. Ct. 705, 35
L. Ed. 2d 147 (1973); O'Hartigan v. Department of Personnel, 118 Wn.2d 111,
117, 821 P.2d 44 (1991); In re Welfare of Sumey, 94 Wn.2d 757, 762, 621
P.2d 108 (1980).

    In answering whether the state visitation statutes at issue serve a
compelling state interest we must understand the sources of state power to
intrude on family life. The state may act pursuant to its authority to
protect citizens from injuries inflicted by third persons or to protect its
citizens from threats to health and safety. Thus, in the context of family
life, the state's police power gives it the authority to require the
vaccination of children against communicable diseases over the objection of
their fit parents. See Prince, 321 U.S. at 166-67. Similarly, the state

may step in and override a decision of a parent where the decision would
harm the child. In Prince v. Massachusetts, for example, the Supreme
Court refused to invalidate legislation which prohibited a parent from
permitting a minor to sell merchandise on a public street. Prince, 321
U.S. 158. Although the Court acknowledged the parent's constitutionally
protected right to child-rearing autonomy, it found a narrow exception
necessary in light of the "crippling effects of child employment," "more
especially in public places." Id. at 168. Police power thus empowered the
state to intrude on a parental decision in the interests of society as a
whole where the decision directly and severely imperiled the child.
The state's other source of authority to intrude on a family's
autonomy is its parens patriae power. As parens patriae the state acts
from the viewpoint and in the interests of the child. Like the state's
police power the state may act only pursuant to its parens patriae power
where a child has been harmed or where there is a threat of harm to a
child. See Yoder, 406 U.S. at 206. Both parens patriae power and police
power provide the state with the authority to act to protect children
lacking the guidance and protection of fit parents of their own, and
although they may represent different perspectives, both contemplate harm
to the child and, in practical terms, have been used nearly interchangeably
in the fashioning of a threshold requirement of parental unfitness, harm,
or threatened harm. See Joan C. Bohl, The "Unprecedented Intrusion": A
Survey and Analysis of Selected Grandparent Visitation Cases, 49 Okla. L.
Rev. 29 (1996).

    For example, in Yoder, the Supreme Court held that the First and
Fourteenth Amendments prevented the state from compelling Amish parents to
send their children to public school after completion of the eight grade.
Yoder, 406 U.S. at 205. The state argued, based on the Court's prior
decision in Prince, that such a decision fails to give due regard to the
power of the state as parens patriae to extend the benefit of the secondary
education to children regardless

    These parties who have petitioned for visitation rights argue that
former RCW 26.09.240 and RCW 26.10.160(3) serve a compelling state interest
that warrants use of the state's parens patriae power to impose visitation
with third persons where the visitation serves the "best interest of the
child." Petitioners contend that a judicially determined finding that
visitation is in the best interests of the child is a sufficiently
compelling justification to override a parent's opposition, regardless of
the fact that the parent's fitness is not challenged or that there has been
no showing of harm or threatened harm to the child.

    However, the Supreme Court cases which support the constitutional
right to rear one's child and the right to family privacy indicate that the
state may interfere only "if it appears that parental decisions will
jeopardize the health or safety of the child, or have a potential for
significant social burdens." Yoder, 406 U.S. at 234. In Yoder, for
example, the Court deemed significant the fact that Amish children would
not be harmed by receiving an Amish education rather than a public
education. Yoder, 406 U.S. at 230. Likewise, in Pierce, the Court found
that parents' decisions to send their children to private schools were "not
inherently harmful," as there was "nothing in the . . . records to indicate
that {the private schools} have failed to discharge their obligations to
patrons, students, or the state." Pierce, 268 U.S. at 534. In Meyer, a
case in which a teacher had been convicted of teaching a child German, the
Court found that "proficiency in a foreign language . . . is not injurious
to the health, morals or understanding of the ordinary child," and thus the
state's desire "to foster a

    Washington has followed suit, allowing state interference with
parents' rights to raise their children only where the state seeks to
prevent harm or a risk of harm to the child. This court has emphasized
that a state can only intrude upon a family's integrity pursuant to its
parens patriae right when "parental actions or decisions seriously conflict
with the physical or mental health of the child." In re the Welfare of
Sumey, 94 Wn.2d at 762 (citing Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct.
2493, 61 L. Ed. 2d 101 (1979); Yoder, 406 U.S. at 230).

In Sumey, parents were temporarily denied custody of their child
pursuant to former RCW 13.32,2 which allowed for the temporary alternative
placement of a child outside the parents' home. Sumey, 94 Wn.2d at 758-59.
Under former RCW 13.30.020, repealed by Laws of 1979, ch. 155, sec. 86, a
child could be placed into limited custody where the child had been
reported as a runaway or when a law enforcement officer believed the child
was in circumstances which constituted imminent and substantial danger to
the child's physical safety. The state could then, at the request of the
child or the parents, place the child

In Sumey, we concluded that the state properly acted pursuant to its
parens patriae power finding that former RCW 13.32 was enacted to
"safeguard the mental and emotional health of the child by removing him or
her from a situation of family conflict that is so extreme that the parents
and child are unable to live together even with the aid of counseling."
Id. at 764. Additionally, the court emphasized that the statute also
protected the "physical health of children like {Sumey} . . . who {were}
driven by the family conflict to run away from home and expose themselves
to the physical dangers that attend running away." Id. at 764-65. 4

    In contrast, this case presents no such compelling interest of the
state. The statutes at issue do not contemplate any similar harm or
potential harm to the child which must be prevented by third party
visitation rights. Accordingly, the parens patriae authority does not
justify the interference with parental rights permitted by these statutes.
One court aptly emphasized that "{t}he requirement of harm is the sole
protection that parents have against

For the state to delegate to the parents the authority to raise the
child as the parents see fit, except when the state thinks another choice
would be better, is to give the parents no authority at all. 'You may
do whatever you choose, so long as it is what I would choose also' does
not constitute a delegation of authority.

    We recognize that in certain circumstances where a child has enjoyed a
substantial relationship with a third person, arbitrarily depriving the
child of the relationship could cause severe psychological harm to the
child. The difficulty, however, is that such a standard is not required in
RCW 26.10.160(3) or in former RCW 26.09.240. Both statutes allow "any
person" to petition for forced visitation of a child at "any time" with the
only requirement being that the visitation serve the best interest of the
child. There is no threshold requirement of a finding of harm to the child
as a result of the discontinuation of visitation.

    Short of preventing harm to the child, the standard of "best interest
of the child" is insufficient to serve as a compelling state interest
overruling a parent's fundamental rights. State intervention to better a
child's quality of life through third party visitation is not justified
where the child's circumstances are otherwise satisfactory. To suggest
otherwise would be the logical equivalent to asserting that the state has
the authority to break up stable families and redistribute its infant
population to provide each child with the "best family." It is not within
the province of the state to make significant decisions concerning the
custody of children merely because it could make a "better" decision.
Additionally, the statutes lack other safeguards to prevent stable
families from defending in court against frivolous petitions for
visitation. Most notably the statutes

    Parents have a right to limit visitation of their children with third
persons. The law's concept of the family rests "on a presumption that
parents possess what a child lacks in maturity, experience, and capacity
for judgment . . . ." Brooks v. Parkerson, 265 Ga. 189, 192, 454 S.E.2d
769 (1995). Some parents and judges will not care if their child is
physically disciplined by a third person; some parents and judges will not
care if a third person teaches the child a religion inconsistent with the
parents' religion; and some judges and parents will not care if the child
is exposed to or taught racist or sexist beliefs. But many parents and
judges will care, and, between the two, the parents should be the ones to
choose whether to expose their children to certain people or ideas. See
Kathleen Bean, Grandparent Visitation: Can the Parent Refuse?, 24 U.
Louisville J. Fam. L. 393 (1985-6). RCW 26.10.160 (3) and former RCW
26.09.240 impermissibly interfere with a parent's fundamental interest in
the "care, custody and companionship of the child." Sumey, 94 Wn.2d at
762.

ATTORNEYS FEES

In In re Custody of Smith, the trial court declined to award either
party costs or reasonable attorneys fees pursuant to RCW 26.09.140 and RCW
26.10.080. On appeal, Kelly Stillwell asserts the trial court erred its
decision denying attorneys fees and costs. She also asks for attorneys
fees and costs incurred on appeal.5 Ms. Stillwell, however, has not shown
that the trial court abused its discretion in its determination. See In re
Marriage of Knight, 75 Wn. App. 721, 729, 880 P.2d 71 (1994) (the party
challenging the award bears the burden of proving that the trial court
exercised this discretion in a way that was clearly untenable or manifestly
unreasonable). Pursuant to RAP 18.1(c) Ms. Stillwell has filed an
affidavit of financial need to this court in support of her request for an
award of fees and costs on appeal.

    Likewise, neither the Troxels nor Ms. Granville were awarded fees or
costs below. Ms. Granville asks this court pursuant to RCW 26.09.140 and
RCW 26.10.080 to award her attorneys fees and costs on appeal. She has
filed an affidavit reflected her financial need as required by RAP 18.1(c).
Finally, Ms. Wolcott was awarded attorneys fees by both the trial
court and on appeal pursuant to RCW 26.10.080. Clay asks this Court to
review the award of the fees below. Like the Court of Appeals, we find no
abuse of discretion in the trial court's award. Ms. Granville asks for an
award of fees and costs on appeal to this court and has filed the necessary
financial affidavits.
 

    We remand to the trial courts to determine whether these parties have
established sufficient financial need to warrant an award of attorneys fees
and costs on appeal, the financial ability of the parties to pay, and if an
award is warranted the proper amount.

DOLLIVER, SMITH, JOHNSON and SANDERS, JJ., concur.
 

1 The trial court found that the petition for visitation was governed by
the version of RCW 26.09.240 that was in effect when their action was filed
on April 3, 1996. The court held that the language added to the statute by
the 1996 amendment was not applicable since the amendment was not effective
until June 6, 1996.  [Return to text]

2 Provisions in former RCW 13.32 have been supplanted by provisions in RCW
13.32A. [Return to text]

3 The residential placement was temporary. A review hearing had to be held
every six months to approve or disapprove of the continuation of the
placement. RCW 13.32.050, repealed by Laws of 1979, ch. 155, sec. 86.
Throughout the six month period appropriate interim services were provided
to the child and parents with the ultimate goal of reunification. Id. [Return to text]

4 We note that the court in Sumey did not engage in a strict scrutiny
analysis although it recognized that a parent's fundamental right to the
"care, custody, and companionship" was at stake. In re the Welfare of
Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980). The court instead, without
citation to authority, engaged in a balancing analysis weighing the
interests of the parents against the parens patriae power of the state.
Id. at 763. Nevertheless, the court's result was correct because the
interests of the state in that case, as discussed above, were compelling
and the statute was narrowly tailored to serve the state's interest.  [Return to text]

5 Ms. Stillwell asks for attorneys fees and costs on appeal pursuant to RCW
26.09.240(3). Ms. Stillwell cannot receive attorneys fees pursuant to RCW
26.09.240(3) as it was not in effect at the time the petition for custody
was filed and there is not indication that the Legislature intended the
amended provisions of the statute to be applied retroactively. [Return to text]

 
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