(dissenting) —
Issue and Standard of Review
If the question presented here were whether the trial judge abused his discretion in weighing the best interests of this child, I would defer to his decision. But that is not the question before the court. The threshold issue is whether the nonparent had standing to start custody proceedings and, even more fundamentally, whether the superior court had authority to enter any order absent a threshold finding that this custodial parent was unfit. RCW 26.10.030. “Courts do not have the right or power to take the custody of children from their parents, unless the parents show that they are unfit to have such custody and the children are treated with cruelty or exposed to immoral or debasing conditions.” In re Welfare of Hudson, 13 Wn.2d 673, 693, 126 P.2d 765 (1942).
Put another way, what was the source of the government’s power to interpose itself between this mother and her child? Upon what authority did the superior court appoint a guardian ad litem, receive evidence, enter findings, and issue orders contrary to the wishes of Chris Shields’s mother, Susan Harwood?
*132The jurisdiction of the trial court to enter a valid order is a question of law that we review de novo. In re Marriage of Susan C., 114 Wn. App. 766, 773, 60 P.3d 644 (2002).
Facts
Chris Shields’s parents divorced when he was three years old. When he was five, Michael Shields married Jenny and adopted Jenny’s daughter. The couple had another child during the marriage. Chris lived with his father, stepmother, and siblings on a farm near Lamont, Washington. His mother, now Susan Harwood, also remarried and made her home in Oregon. When Chris was 11, Michael Shields died. Following his death, Ms. Harwood resumed custody of her son and brought him to live with her in Oregon.
Ms. Shields filed a petition under chapter 26.10 RCW for nonparent custody of Chris. The petition contains a conclusory statement that the mother is not a suitable custodian. Clerk’s Papers (CP) at 9. Instead of facts supporting the mother’s unsuitability — i.e., unfitness — as a custodian, the petition alleges simply that Ms. Shields would be a more appropriate custodian, based on the fact that the child resided with his father and stepmother for over half of his life, and that the child’s best interests would be served by his remaining with Ms. Shields. Id.
The court nevertheless appointed a guardian ad litem (GAL) to investigate Ms. Harwood’s parental fitness. The GAL reported, but not on Ms. Harwood’s fitness. Instead, the GAL focused on Chris’s self-reported closer bonding with Ms. Shields and his expressed preference to live with his stepmother. Id. at 207-08. The report concludes with the gratuitous legal opinion that a parent’s fundamental right to the custody of her children must be balanced against the child’s right to freedom of association. Id. at 208-09.
In his one-on-one interview with the judge, Chris said things were okay at his mother’s, that he had made friends and adjusted, and that he liked his mother’s home. In Camera Report of Proceedings (Nov. 21, 2002) at 5. His *133mom and stepdad were “nice” and he got along well with both of them. Id. at 14. He was in touch with Ms. Shields by e-mail and phone calls “[o]nce or twice a week” and he could call her when he wanted to. Id. at 7. He spent five weeks in the summer with the Shieldses. Id. Chris could not give the court a specific reason for his preference to live with Ms. Shields, just that it felt like home. Id. at 9, 13.
In its memorandum opinion, the court acknowledged the fundamental rights of parents to raise their children without the interference of the state. CP at 243. But the court reasoned that these interests must yield to the state’s inherent parens patriae interest and a child’s fundamental liberty interest in freedom of association. Id. at 244-45. The court concluded that Ms. Shields had standing to bring a custody action as a person in loco parentis to Chris. Id. at 245. The court was persuaded that to thwart Chris’s desire to live in the home of his choosing would cause unspecified actual detriment. Id. at 246-47.
The court entered a final order awarding custody to Ms. Shields.
Guiding Constitutional Provisions
Parents have a fundamental right to the care and custody of their children. In re Custody of Smith, 137 Wn.2d 1, 15, 969 P.2d 21 (1998), aff’d sub nom., Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); In re Neff, 20 Wash. 652, 655, 56 P. 383 (1899). When a nonparent challenges a parent’s constitutional right to custody, we must begin with the presumption that the parent is fit and acting in her child’s best interests. Troxel, 530 U.S. at 68. The nonparent must rebut that presumption. It is not the mother’s burden to disprove a judicial presumption that the child’s best interests lie elsewhere. Id. at 69. A simple disagreement between the court and a parent over a child’s best interests is not sufficient to override the parent’s fundamental rights. Id. at 72-73; In re Custody of R.R.B., 108 Wn. App. 602, 612-13, 31 P.3d 1212 (2001). Both the *134government (in the person of the court) and Ms. Harwood want the best interests of Chris. The question is who has the right to decide what is in his best interests. And, absent some showing of unfitness, the United States Supreme Court has clearly answered that question in Troxel. The mother decides.
Washington Authority
The cases relied on by the majority are distinguishable. The legislature has empowered the superior court to make child custody decisions in the context of dissolution proceedings. RCW 26.09.050. The court in In re Marriage of Allen, for example, retained residual authority under the prior dissolution as well as ultimately finding the parent unfit. In re Marriage of Allen, 28 Wn. App. 637, 643-44, 626 P.2d 16 (1981). In Schuster v. Schuster, also a dissolution case, error was assigned to the findings on a petition by a natural parent to modify the parenting plan. Schuster v. Schuster, 90 Wn.2d 626, 628, 585 P.2d 130 (1978). In re Marriage of Kovacs also involved a custody dispute between natural parents in the context of dissolution proceedings. In re Marriage of Kovacs, 121 Wn.2d 795, 797, 854 P.2d 629 (1993). In re Marriage of McDole reviews the trial court’s exercise of discretion in a postdissolution modification petition also governed by chapter 26.09 RCW. In re Marriage of McDole, 122 Wn.2d 604, 609, 859 P.2d 1239 (1993).
But the dissolution provisions of chapter 26.09 RCW do not govern nonparent custody petitions. Neither does the in loco parentis doctrine invoked by the trial court.
The common law in loco parentis doctrine charges stepparents with a duty to support the child. One is in loco parentis who puts herself “ ‘in the situation of a lawful parent by assuming the obligations incident to the parental relation.’ ” State v. Waleczek, 90 Wn.2d 746, 752-53, 585 P.2d 797 (1978) (quoting 67 C.J.S. Parent and Child § 71 (1950)). The doctrine does not endow a stepparent with custody rights equal or superior to those of a natural *135parent. See, e.g., Harmon v. Dep’t of Soc. & Health Servs., 134 Wn.2d 523, 535-36, 951 P.2d 770 (1998); In re Marriage of Farrell, 67 Wn. App. 361, 365-66, 835 P.2d 267 (1992). Moreover, the stepparent’s legal relationship with the child ends with the marriage. State v. Gillaspie, 8 Wn. App. 560, 562-63, 507 P.2d 1223 (1973).
And so superior court jurisdiction over this child must be found elsewhere.
Superior court jurisdiction to remove a child from the custody of a natural parent and to award custody to a nonparent is found solely in chapter 26.10 RCW. I find no constitutional provision, statute, or judicial decision under which the superior court may acquire subject matter jurisdiction to transfer custody of a child from his parent to a nonparent outside the authority of chapter 26.10 RCW.
The subject of our review is the trial court’s construction of RCW 26.10.030. Specifically, did Ms. Shields meet the threshold set forth in RCW 26.10.030 for standing to invest the court with the power to substitute its judgment for that of Ms. Harwood as to how best to care for her child? And, again, we review statutory interpretation de novo. In re Marriage of Wilson, 117 Wn. App. 40, 45, 68 P.3d 1121 (2003). Our goal is to carry out the intent of the legislature. In re Dependency of R.V., 113 Wn. App. 716, 720, 54 P.3d 716 (2002).
When the language of a statute is plain, it is not subject to interpretation; we simply read it. Wilson, 117 Wn. App. at 45; R.V., 113 Wn. App. at 720. And, by its plain language, RCW 26.10.030 raises parental unfitness to the level of standing. A nonparent may petition only if the child is either not in the custody of either parent, or if neither parent is a suitable custodian. RCW 26.10.030(1). Only then may the court substitute its judgment for that of the parent as to what is in the best interests of the child or what may be detrimental to the child. RCW 26.10.100; Mecum v. Pomiak, 119 Wn. App. 415, 421, 81 P.3d 154 (2003) (citing In re Custody of Nunn, 103 Wn. App. 871, 883-84, 14 P.3d 175 (2000)).
*136Here, Chris was in the custody of his mother. And, as the trial court found, the mother was not unfit. Upon what authority, then, did the state divest Ms. Harwood of custody?
The court may not consider a nonparent petition without a preliminary determination that a well-founded allegation of unfitness has been pleaded. Nunn, 103 Wn. App. at 883. Statutory standing is a prerequisite for superior court subject matter jurisdiction over the custody of children. Allen, 28 Wn. App. at 642-43. Only after acquiring jurisdiction over the child does the court have the power to enter custody orders in the child’s best interests. In re Welfare of Hudson, 13 Wn.2d 673, 681-82, 126 P.2d 765 (1942). Otherwise, the petition must be dismissed. Nunn, 103 Wn. App. at 883.
The nonparent custody cases marshaled in support of the holding here are also distinguishable because standing and jurisdiction were not at issue in those cases. In Allen, the court had residual jurisdiction under prior dissolution proceedings, and the judge ultimately found the parents unfit. Allen, 28 Wn. App. at 643. In In re Custody of Stell, the child was not living with either parent. In re Custody of Stell, 56 Wn. App. 356, 361, 783 P.2d 615 (1989). In R.R.B., the biological father had surrendered his parental rights when the parents adopted the child. R.R.B., 108 Wn. App. at 604. In recognizing the biological father’s right to petition under chapter 26.10 RCW, R.R.B. does not abrogate the statutory standing requirements. Like any other nonparent, the father had standing to seek custody under chapter 26.10 RCW “ ‘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.’ ” R.R.B., 108 Wn. App. at 606-07 (quoting RCW 26.10.030(1)).
Conclusion
A nonparent lacks standing to petition for custody of a child from a fit parent with physical custody. The jurisdic*137tion restrictions of chapter 26.10 RCW mirror the profound constitutional deference accorded to parental rights. The standing requirements simply reflect the presumption of fitness of a natural parent who presently enjoys custody. R.R.B., 108 Wn. App. at 612.
Where the parent has already lost or relinquished custody, fitness is not presumed and unfitness need not be alleged to establish standing. RCW 26.10.030. If the parent has custody, the petition must allege that the parent is not a suitable custodian — i.e., is unfit. RCW 26.10.030(1).
Here, the petition did not allege and the superior court did not find that the custodial parent was unfit. Therefore, the court lacked subject matter jurisdiction to substitute its judgment for that of the mother as to Chris’s best interests.
I would reverse and dismiss the petition.