(dissenting) — I must respectfully dis*139agree with the majority’s construction of the statute involved here, and with its reliance on dicta in In re Custody of B.S.Z.-S., 74 Wn. App. 727, 875 P.2d 693 (1994). I therefore dissent.
Petitioners commenced this action under RCW 26.10-.160(3), which grants to "any person” the opportunity to petition for visitation rights "at any time including, but not limited to, custody proceedings.” This language is plain and unambiguous.
As the majority notes, from 1987 to 1996, RCW 26.10.160(3) had a close parallel in RCW 26.09.240, which read:
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.
In 1996, RCW 26.09.240 was amended to provide, inter alia:
A person other than a parent may petition the court for visitation with a child at any time or may intervene in a pending dissolution, legal separation, or modification of parenting plan proceeding. 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.
RCW 26.09.240(1) (emphasis added).
The limiting language underscored above states a legislative intent to confine the new limitation, requirement of a pending action, to nonparent visitation petitions filed under RCW 26.09, entitled "Dissolution of Marriage— Legal Separation.” It does not indicate any intent regarding *140nonparent visitation provisions in other chapters. RCW 26.10 is entitled "Nonparental Actions for Child Custody.” Its visitation section quoted above was not amended.
The majority concludes the Legislature simply overlooked amending RCW 26.10.160(3) when it amended RCW 26.09.240. While this certainly is a possibility, courts do not read statutes into or out of existence merely because of possible legislative oversight. The concern expressed by the majority is that a literal reading of RCW 26.10.160(3) could lead to absurd results because if "any person” could file a petition, frivolous petitions motivated by greed or hostility might result. I do not share this fear. I heard no reports of such petitions before the 1996 amendment, and trial courts are well-equipped to deal with frivolous petitions in any event.
The majority also relies on dicta from In re Custody of B.S.Z.-S., 74 Wn. App. at 731, stating that the third-party custody provision in RCW 26.10.160(3) applies only in the context of custody actions. I must respectfully disagree with that dicta. RCW 26.10.160(3) specifically states that a third-party visitation petition is available "at any time including, but not limited to, custody proceedings.” The B.S.Z.-S. reading of the statute is not supported by its plain language. It follows that I must respectfully disagree with the majority here, when it states, "The Legislature could not have intended to open the door to any’ person petitioning for visitation at any time,’ having created strict standing requirements for third-party custody proceedings.” Majority at 135. This statement seems to me, with all due respect, entirely conclusory.
The imposition of strict requirements for third-party custody petitions does not lead inexorably to the conclusion that the same requirements were intended to apply to visitation petitions. On the contrary, custody and visitation are vastly different matters. A petition for custody amounts to an attempt to wrest one’s child permanently from one’s care and control. A petition for visitation, on *141the other hand, is an attempt merely to gain a claim on some time with the child, and interferes distinctly less in the parents’ autonomy. The Legislature can sensibly create different thresholds for these different proceedings.
Previously, this court attempted to construe the governing statute to include "change of circumstances” threshold requirements for third-party petitions. This construction was immediately rejected by the Legislature. In 1976, RCW 26.09.240 read essentially as does RCW 26.10.160(3) today. (Third-party actions were separated in 1987, when RCW 26.10 was passed.) In construing a visitation petition under then RCW 26.09.240, Division II of this court held that "in the absence of a threshold change of status affecting the family unit, RCW 26.09.240 does not authorize the court to grant visitation rights to a third person, including a child’s maternal grandparent.” Carlson v. Carlson, 16 Wn. App. 595, 597, 558 P.2d 836 (1976). The court’s enumeration of changes in status which might justify such an order included death of one or both of the natural parents, dissolution or separation, child abuse or abandonment. The court stated:
In the absence of a threshold situation so affecting the interests of the child with regard to the continuity of the family unit, the welfare of the child will seldom, if ever, be served by a judicially imposed overriding of parental discretion to determine whether a third person, distinct from the basic family unit, shall be permitted the privilege of visitation with the child.
Carlson, 16 Wn. App. at 597-98.
Wise as these considerations may have appeared, the Legislature promptly rejected them, amending the statute in 1977 to permit third-party visitation petitions "whether or not there has been any change of circumstances.” In Marriage of Klouse, 30 Wn. App. 492, 494, 635 P.2d 773 (1981), the court characterized the amendment bluntly: "the impact of the 1977 amendment was to negate the requirement of showing a material change in circumstances.”
*142The language construed in Klouse survives today intact in RCW 26.10.160(3), and I believe the majority’s attempt to add a standing requirement is as misguided as was the Carlson court’s attempt to add a threshold requirement. The statute itself contains the Legislature’s standard for both threshold and standing, in its requirement that the visitation serve the best interests of the child.
Many considerations could explain a legislative decision to leave RCW 26.10.160(3) unamended. Grandparent visitation issues come most readily to mind. For if a custody action must be pending before a grandparent may petition, then a grandparent whose child is dead—as is the Troxels’ son—and who can thus never expect an RCW 26.09 petition opportunity (because no petition will ever be pending under that chapter) also has no recourse under RCW 26.10 unless willing to allege the remaining parent is unfit19 —hardly a prelude to amicable relations among family members. Is there never then to be a circumstance where a child indeed has a fit parent, but also has strong ties to grandparents, warm and beneficial ties which the child’s best interests call for protecting?
The limitations which public policy may place on such petitions are fertile grounds for debate. One may ask whether such petitions should be available at all in cases where both parents live with the children and oppose the petition, whether death or divorce or separation should affect, and, if so, how; whether adoption by a step-parent should affect, and so on.20 But these are matters for the Legislature, and for now, the current statute expresses one policy approach: any person may petition at any time, so long as the child’s best interests are served. It cannot *143be said that this approach is absurd, or even out of harmony with RCW 26.09.240.21
I must thus respectfully dissent from the reasoning and result of the majority, and from its holding that under RCW 26.10.160(3), a custody petition must be pending before a visitation petition will lie.22
I would not simply affirm, however. The trial court here was not presented with any guidance as to the proper test to be applied in a case such as this. The findings necessary to order visitation over the objections of a parent are thus not in the record, and I would remand for further proceedings. And while I believe RCW 26.10.160(3) should not be read as incorporating the standing requirement of RCW 26.09.240,1 would freely and generously borrow from RCW 26.09.240 its excellent, albeit not exhaustive, list of factors indicating whether third-party visitation is in the best interests of the child. See RCW 26.09.240(5)(a). A significant preexisting relationship, balanced against the impact on the existing family structure, is the framework. Within that framework, each case will be different. Because these factors were not addressed by the trial court, I would remand for further proceedings.
One final issue remains. These children have been adopted by their stepfather, or so the briefs advise us. Under Mitchell v. John Doe, 41 Wn. App. 846, 706 P.2d 1100 (1985), and Bond v. Yount, 47 Wn. App. 181, 734 P.2d 39 (1987), adoption—by strangers or relatives—terminates standing to petition for visitation. These holdings are premised on a privacy rationale:
There is no policy stronger or more consistently followed in this state than that protecting the sanctity and privacy of *144adoptions. When an adoption has become final, previous ties to natural parents are completely severed and a wholly new relationship is created. The confidentiality of the new, as well as the defunct, relationship becomes virtually inviolate. The legislative policy concerning this transformation is reflected not only in the adoption statute, but in the probate code as well. This policy has been affirmed consistently by the courts. "The legislative policy of providing a 'clean slate’ to the adopted child permeates our scheme of adoption.” The strength of this policy is illustrated by the reaction of our courts to the latter day attempt, buttressed by a wealth of arguments, to strip the mantle of confidentiality from adoption records. That attempt has been firmly rejected.
Mitchell, 41 Wn. App. at 849-50 (citations and footnote omitted) (quoting In re Estates of Donnelly, 81 Wn.2d 430, 437, 502 P.2d 1163, 60 A.L.R.3d 620 (1972)).
Not only has the legislative concern for privacy lessened somewhat since Mitchell,23 the rationale is inapplicable here in any event. Where a stepparent adopts, ties to one natural parent remain intact, and virtually no confidentiality concerns exist. I would therefore be cautious about applying the Mitchell rationale to these facts. Nor have the parties fully briefed the issues. I thus would not hold standing terminated upon the adoption.
In sum, I would remand. I therefore dissent.
Review granted at 133 Wn.2d 1028 (1998).
The allegation required is that the child has no fit parent, or placement with an otherwise fit parent would be detrimental to the child. See Custody of Stell, 56 Wn. App. 356, 365, 783 P.2d 615 (1989).
These issues are frequent topics in the current legal literature. See e.g., Joan C. Bohl, The "Unprecedented Intrusion”: A Survey and Analysis of Selected Grandparent Visitation Cases, 49 Okla. L. Rev. 29 (1996).
As to the issue of constitutionality of nonparent visitation, I assume for purposes of this dissent the constitutionality of the present statute and expect to maintain that conclusion in the future, but proper analysis of those issues awaits their presentation on more extensive briefing than was submitted here.
It follows that I must respectfully disagree with the opinion reaching the same result in In re Visitation of Justin Ross Wolcott, 85 Wn. App. 468, 933 P.2d 1066 (1997).
See RCW 26.33.295 (authorizing open adoption agreements) and RCW 26.33.343 (authorizing limited searches for birthparents of an adopted child).