What is Third-Party Custody of a Child?

Parents are not the only people who may seek custody of a child in Minnesota. State law allows a non-parent to petition for custody under rather exceptional circumstances and is distinct from a child protection proceeding initiated by the state. Third-party custody is a private matter, between the interested party and the custodial parent(s). The person bringing the petition for third-party custody needs to show that they are either a “de facto custodian” or an “interested third party” as defined by statute. A third-party custody claim may occur, for example, in a situation where a child’s parents have allegedly neglected or failed to support the child.

If the court ultimately grants third-party custody, or if the custodial parent(s) and the third party stipulate to third-party custody, the parent(s) of the minor child may retain visitation rights and pay child support. The custody may be for a set period of time. In Minnesota, maintaining family relationships is critically important for the child’s sake. If not handled thoughtfully, a third-party custody claim can rip a family apart. The Collaborative Process allows the parents and non-parent seeking third-party custody to work together to create a thoughtful plan that considers everyone’s needs, especially the child’s. If you have questions or concerns about a third-party custody claim, a collaborative family lawyer can help you understand your rights and options.Once the threshold finding of de facto custodian or interested third party is made, to be granted third-party custody, the non-parent petitioning for custody must prove that awarding them custody is in the child’s best interest. Minnesota law identifies twelve best interest factors that a court must consider when determining the best interest of the child.

De Facto Custodian

A de facto custodian, according to Minnesota family law, is someone who has been a child’s primary caretaker for a minimum length of time during the previous two years:

• Six months for a child under the age of three; or
• One year for a child age three or older.

State law does not require a de facto custodian to be a relative of the child, but relatives often fill this role, such as a grandparent, aunt, or uncle. A friend of the family could also become a de facto custodian.

The individual must have taken care of the child during that time without a court order or custody consent decree, without the presence of a parent in the home, and with “a lack of demonstrated consistent participation” by a parent. This last term generally means that a parent has “refus[ed] or neglect[ed]” to fulfill their parental duty to care for the child.

Interested Third Party

An interested third party is someone who does not meet the legal definition of a de facto custodian, but who has evidence that:

• A parent has neglected or abandoned the child; and
• Granting them custody would best serve the child’s best interests.

An interested third party must prove 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 well-being 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.”

Can a Third-Party Custody Claim Work in a Collaborative Case?

Collaborative law is about resolving family disputes outside of the courtroom. Family members who participate in the collaborative process agree to work together to achieve the common goal of settling their disputes and moving forward in a new phase of life.

Third-party custody matters often involve allegations of neglect or abandonment by one or both parents. The County may be involved in the matter to some degree. A Minnesota court might, therefore, be reluctant to let the parties to a third-party custody petition use an out-of-court procedure like Collaborative law, unless all parties, including the county if it is involved, agree to use the Collaborative process. The parties can actually file a joint petition for third-party custody from the outset or decide to utilize the Collaborative process after a petition has been filed by a non-parent seeking third-party custody.

A team of collaborative professionals can help the parties understand one another’s concerns and focus on the needs of the minor child. The parents may come to see that an interested third party has a valid point about a child’s best interests. The interested third party may see how the family came to the point where it seemed like the child was being neglected and want to find a way to keep the parent(s) involved while protecting the child from ongoing harm. With thoughtful guidance, everyone can reach an agreement that meets the child’s needs. They can avoid the family disruptions that often come with a third-party custody claim in a court process that can otherwise result in tearing the family apart. Whenever there is a need to preserve relationships, the Collaborative process is worth considering.

Family lawyer Louise Livesay has helped people resolve disputes in the Twin Cities area for over twenty years. She is dedicated to using Minnesota’s family laws to help her clients transform their relationships. If you have questions about collaborative law, divorce mediation, or another family law matter, please contact us today online or at (651) 964-3887 to schedule a confidential consultation.