Can a Grandparent Obtain Child Custody in Minnesota?

In Minnesota, biological parents typically have the constitutional right to control the upbringing of their children, including the child’s education, health care, and religious training. However, a grandparent, non-parent, or other third party may petition the Court for custody of a child under certain exceptional circumstances. This article will discuss the two ways someone other than a parent can have standing to start a third-party custody proceeding in Minnesota.

DE FACTO CUSTODIAN 

What is a de Facto Custodian?

A person has standing to obtain custody of a child that is not their biological child if they are a de facto custodian. A de facto custodian is someone who, within the last two years, has been the child’s primary caretaker and lived with the child without a parent present and with a lack of demonstrated consistent participation by a parent. This means that the child’s biological parent(s) refused or neglected to comply with the duties imposed upon him/her by the parent-child relationship, such as providing the child with food, clothing, shelter, health care, education, creating a nurturing and consistent relationship, and other care and control necessary for the child’s physical, mental, or emotional health and development.

For a child who is three years old or younger, the period of time in which the person will need to have cared for the child without a parent present is only six months. For a child who is three years of age or older, this period needs to be at least one year. In both cases, this period of time in which a grandparent or third party provided primary care for the child without a parent present need not be consecutive, so long as it occurred in the past two years.   

If an individual meets the above-mentioned requirements of becoming a de facto custodian, they may file a Petition for Third Party Custody in the Minnesota County where the child resides, the child is found, or an earlier order for custody of the child has been entered. Importantly, while most family court and civil cases require a petitioner to prove their case by a preponderance of the evidence (more likely than not), de facto custodian proceedings require the petitioner to prove that they are in fact a de facto custodian by clear and convincing evidence, which is a heightened standard of proof that may be difficult to meet without the help of an experienced third-party custody attorney. This is especially true since if, at any time, the court finds that you are not a de facto custodian, the case will be dismissed.

What is a Lack of Consistent Participation by a Parent?

There are a number of factors the Court will consider when determining whether there has been a lack of consistent participation by a parent. For instance, the court will examine the intent of parents in placing the child with the de facto custodian, the involvement the parents had with the child during their absence, the facts and circumstances of the parent’s absence, and whether a sibling of the child is already in the de facto custodian’s care. Again, it is extremely important to retain a grandparent rights attorney or third-party custody attorney who is familiar with the Minnesota Rules of Evidence so you can show the court that these factors fall in your favor by clear and convincing evidence.

INTERESTED THIRD PARTY 

Who is Considered an Interested Third Party?

If you do not qualify as a de facto custodian, but still want to obtain custody of a child who is not biologically yours, you must be able to prove, by clear and convincing evidence, that (1) the parent has abandoned, neglected, or otherwise exhibited disregard for the child’s well-being to the extent that the child will be harmed by living with the parent; (2) placement of the child with the third party takes priority over preserving the day-to-day parent-child relationship because of the presence of physical or emotional danger to the child; or (3) other extraordinary circumstances. While Minnesota State Statute does not define “other extraordinary circumstances,” the Minnesota Supreme Court has stated that these are circumstances of a “grave and weighty” nature. Due to this vagueness, and ambiguity, it is important to hire a Minnesota interested third party custody lawyer who has studied the caselaw in this area and who can make arguments with the best chance at success to meet these high standards. This is importantly true since if, at any time during the case, the court finds that the three factors stated above are not present, the case will get dismissed.

 THE BEST INTERESTS OF THE CHILD 

While individuals seeking to obtain custody of a non-biological child as a de facto custodian or interested third party will need to prove different things, in both cases, the court will also consider what is in the child’s best interests. Specifically, in both de facto custodian and interested third party proceedings, the Court will consider and evaluate the following factors, which is a non-exhaustive list: (1) the wishes of the parties as to custody; (2) the child’s preference, if they are old enough; (3) the primary caretaker; (4) the relationship between the child and the parties; (5) the child’s adjustment to home, school and community; (6) how long the child has lived in a stable environment; (7) the mental and physical health of everyone involved; and (8) whether there has been any domestic abuse. To make matters more complex, if any of the parties to the action are seeking joint custody, not only does the court have to consider the above factors, but the court also must determine whether the parties can cooperate, whether the parties can resolve disputes, and whether it would hurt the child if one party could make decisions concerning his/her upbringing.

As you can see, de facto custodian and interested third party custody proceedings can be one of the most technical family law cases you can be involved in. If you do not meet the very specific legal definitions of de facto custodian or interested third party, your case will immediately get dismissed. Even if you do meet those legal requirements, your case will still get dismissed if the court believes it is not in the child’s best interest to place the child with you. Overcoming the constitutional presumption that a fit parent should have custody of their child can be a daunting and challenging task. Therefore, it is important that you call the experienced third-party custody and grandparent rights attorneys at RAM Law PLLC to schedule your free consultation.