Divorce: Interested Third Party

Parents have a fundamental right to raise and care for their child under the U.S. Constitution. The courts have repeatedly held that child custody can only be removed from a parent for "grave" and "weighty" reasons.

So how can a person who is not the parent of a child, gain custody of a child? One way is by bringing a petition as an Interested Third Party. Under Minnesota law, to establish that an individual is an interested third party, the individual must:

1. Show by clear and convincing evidence that one of the following factors exist:

• The parent has abandoned, neglected, or otherwise exhibited disregard for the child's wellbeing to the extent that the child will be harmed by living with the parent;
• 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 emotional danger to the child, or both; or
• Other extraordinary circumstances.

2. Prove by a preponderance of the evidence that it is in the best interests of the child to be in the custody of the interested third party; and
3. Show by clear and convincing evidence that granting the petition would not violate section 518.179 subdivision 1a.

The party bringing the interested third party action must prove a prima facie case under these factors. This means that he or she has the burden of proving to the court that one of these factors exists. If the party is able to do so, then the next step in the process is an evidentiary hearing (i.e. a trial) where testimony is taken and the judge will determine if custody should be granted to the interested third party.