Third Parties, grandparents and other relatives often become the primary care-providers and role models for children in situations where the biological parents are missing or unfit due to negligence, drug use, alcoholism, abuse or financial inability to care for the child.
Minnesota Statutes § 257C.03 governs the procedure for petitioning for child custody as an interested third party or de facto custodian. Whether a Petitioner (a person requesting or petitioning the court for custody) is classified as a third party custodian or a de facto custodian depends generally on the amount of time the child has been with the Petitioner and the nature of their contacts. However, for both classes of Petitioners, the procedure is generally the same.
Who is a De Facto Custodian?
“De facto custodian” means an individual who has been the primary caretaker for a child who has, within the 24 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:
(1) six months or more, which need not be consecutive, if the child is under three years of age; or
(2) one year or more, which need not be consecutive, if the child is three years of age or older.
Who is an interested third party?
An interested third party can be a grandparent, aunt, uncle or other family member or person who can show that 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 and that 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.
Minnesota Third-Party Custody Law requires a two-step process in which the Petitioner who satisfies certain statutory requirements would be entitled to an evidentiary hearing to prove their case. The area of third-party custody is a highly technical area of law, requiring that the pleadings be skillfully written and carefully follow the statute.
If the Petitioners fail to establish in their Petition that they are the de facto custodians of the child or that the placement of the child with the Petitioners is not in the child’s best interest, the Petition may be dismissed.
If you are caring for a child for whom you are not the biological parent, it’s important to file a motion for custody while the child is still living with you. Even though the child may be living with you, you do not have any legal right to make decisions for the child or perhaps even to seek medical care on behalf of the child until the Court specifically Orders it. If the biological parents take the child before you file the motion, custody is broken and it limits the consistent amount of care you provide to the child.