As the atypical family is changing, it is common to find a child being raised by nonparents, usually the child’s grandparents or uncles and aunts. In most cases, these nonparents have little to no right to say no if the child’s parents decide to take the child back into their care.
In Minnesota, under exceptional circumstances, the third-party custody statute allows a nonparent to petition the court for legal and/or physical custody of a child.
The misconception is that third-party custody cases arise when one or both legal parents of the child are abusive or neglectful toward the child. However, there are various circumstances in which the court will grant a nonparent’s third-party custody motion. Such situations include when one or both legal parents are deceased, or the child has been living with a nonparent for a significant amount of time so long as the circumstances conform with Minnesota law.
Another misconception is that the third party must be a relative of the child. In fact, the third party does not have to be a relative of the child. Minnesota law requires that the third party petitioning for custody have a significant relationship with the child and must qualify as either a “de facto custodian” or as an “interested third party.”
The statute defines a “de facto custodian” as an individual who has been the primary caretaker for a child who has, within the 2 months immediately preceding the filing of the petition, resided with the individual without a parent present and with a lack of demonstrated consistent participation by a parent for a period of six months or more, which need not be consecutive, if the child is three years of age or older.
The statute defines an “interested third party” as an individual who, is not a de facto custodian, but who can show by clear and convincing evidence that one of the following factors exist:
(i) 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;
(ii) placement of the child with the individual takes priority over preserving the day-to-day parent-child relationship because of the presence of physical or emotion danger to the child, or both; or
(iii) other extraordinary circumstances.
The “interested third party” must also prove by a preponderance of the evidence that it is in the child’s best interests to be in the custody of the interested third party.
Whether or not you have standing to bring a third-party petition for custody will depend on your specific facts and circumstances. Contact attorney Amber R. Donley at Melchert Hubert Sjodin to discuss your specific situation and your rights under Minnesota law.