PART FOUR: THIRD-PARTY CUSTODY -- MINN. STAT. § 257C

1. What is third-party custody?

Third-party custody is when someone other than a child's parent has court-ordered legal and physical custody of a child. A custodian is the person responsible for the care, control, and maintenance of a child. In Minnesota, a child born to a single mother is presumed to be in the legal custody of her mother. No court order is necessary. Similarly, married couples have custody of a child born to them without needing a court order. An unmarried father’s paternity must be established before he has the legal right to seek legal and physical custody of a child.

2. When and why should a caregiver seek custody?

Third parties usually seek legal custody of a child when they need legal authority to obtain medical care, enroll the child in school, or provide the child with a safe, stable, and permanent home. People who have cared for a child in their home for a long period of time usually seek custody in order to have clear, enforceable guidelines regarding arrangements such as where the child is going to live and what sort of visitation the parents may have. They may want to ensure that the parent(s) cannot take the child from their care on a whim, thus disrupting school, other activities, and the child's sense of stability.

Third parties also seek custody when they believe that a child’s physical or emotional health is at risk if he or she has to live or remain living with a parent. For instance, if a single mother of a child dies, and the father has had little or no contact with the child (or has a history of abusive behavior, extensive drug and/or alcohol use, etc.), the relatives who have a relationship with the child may believe that the child will be harmed emotionally if she has to leave them to reside with a virtual stranger. The relatives may then take steps to become third party custodians.

A third party can also obtain custody of a child in a CHIPS proceeding when the Juvenile Court has determined that a child cannot return home and a permanent home for the child is necessary.

3. What law governs third party custody proceedings?

The De Facto Custodian and Interested Third Party law, MINN. STAT. 257C, governs all third party actions for custody and visitation of children in family court. It is a new law that went into effect on August 1, 2002. This law establishes clear requirements for third party custody court proceedings, defines de facto custodians and interested third parties, and sets forth specific burdens of proof and best interest analysis factors to be used at trial. It consolidates prior statutes governing third party actions into one chapter, and reconciles the two doctrines which have framed the discussion concerning custody disputes between a parent and a third party in Minnesota for years. Those doctrines are first, that a parent is entitled to custody of his or her child unless that parent “is unfit or has abandoned [his or her] right to custody or unless there are some extraordinary circumstances which would require [the parent] be deprived of custody,” and second, that “the so-called best-interest of the child concept, according to which the welfare and interest of the child is the primary test, is to be applied in awarding custody.”7

4. How is the court process started?

In order to get an order of custody, a petition for custody must be filed in the family court in the county in which the child resides or where there has been an earlier order of custody entered. The petition must state:

•      The name and address of the person seeking custody (petitioner), the parents, and the children for whom custody is sought;

•      The relationship of the petitioner to the child;

•      Whether the petitioner is a de facto custodian or an interested third party;

•      The current legal custodian of the child;

•      All previous orders of custody and whether or not other actions for custody are pending;

•      Whether or not the parents should pay child support or have visitation with the child; and

•      That it is in the child’s best interests to reside with the petitioner.

5. Who is a de facto custodian?

An individual is a de facto custodian if he or she can show by clear and convincing evidence that:

•      He or she has been the primary caregiver for a child;

•      During the two years immediately preceding the filing of a petition for custody, a child resided with an individual for 1) a total period of six months or more if the child is less than three years of age, or 2) a total period of one ear or more if the child is three years of age or older; and

•      The parent has refused or neglected to comply with the duties imposed upon the parent by the parent-child relationship, including but not limited to providing the child with necessary food, clothing, shelter, health care, and education, and by creating a nurturing and consistent relationship and exerting other care and control necessary for the child’s physical, mental or emotional health and development. An individual is entitled to a hearing to prove he or she is a de facto custodian.

6. Who is an interested third party?

An individual is an interested third party if he or she can show by clear and convincing evidence that one of the following factors exists:

•      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 that

•      Other extraordinary circumstances exist.

An individual is entitled to a hearing to prove that he or she is an Interested Third Party.

7. In third-party custody cases, how does the court determine what is in the best interests of the child?

The court will look at various factors as required by MINN. STAT. § 257C.04. The court can give no preference to a parent over a de facto custodian or an interested third party simply because they are a parent. This law puts long-term caregivers on equal footing with the parents in custody disputes. To determine the best interest of the child, the court will evaluate the following factors, the:

•              Wishes of the parties as to custody;

•              Reasonable preference of the child, if the court considers the child to be of sufficient age

•              to express preference;

•              Identity of the child's primary caretaker;

•              Intimacy of the relationship between each party and the child;

•              Interaction and interrelationship of the child with a party or parties, siblings, and any other person who may significantly affect the child's best interests;

•              Child's adjustment to home, school, and community;

•              Length of time the child has lived in a stable, satisfactory environment and the desirability

•              of maintaining continuity;

•              Permanence, as a family unit, of the existing or proposed custodial home;

•              Mental and physical health of all individuals involved; except that a disability, as defined in MINN. STAT. § 363.01, Subd. 13, of a proposed custodian or the child must not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interests of the child;

•              Capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;

•              Child's cultural background; and

•              Effect on the child of the actions of an abuser, related to domestic abuse, as defined in section MINN. STAT. § 518B.01, Subd. 2, that has occurred between the parents or the parties.

The court may not use one factor to the exclusion of all others. The court must make detailed findings on each of the factors and explain how the factors led to its conclusions and to the determination of the best interests of the child.

8. What happens after the petition is filed with the court?

The petition, along with a summons, must be personally served upon the child's parents, guardian or legal custodian. If the relative does not know the location of the child's parents, the court may allow the grandparent to give notice by publication in a newspaper.

Once they are served with the summons and petition, the parents have 20 days to file an Answer, a formal written response filed with the court. The parents can either ignore the case, support the grandparent's custody petition, or fight the petition and file an Answer.

9. What happens if the parents do not file an Answer?

If the parents choose to ignore the caregiver's petition, a default judgment will probably be issued. A default judgment is a judgment that is issued against someone who does not appear in court. The effect of a default judgment in a custody matter is usually the awarding of custody to the person who files the petition if the court finds that is in the child’s best interests. Even though the other party is in default, the caregiver will have to go to court to provide evidence that the child should be placed in his or her custody.

10. What happens if the parents want to fight the petition?

In a case where the parents contest the petitioner's custody petition, several hearings may be held to determine if the petitioner is a de facto custodian or an interested third party and whether or not it is in the child's best interests to be with the petitioner. Every county has its own process for determining custody matters. At the first hearing, the court will probably decide issues such as temporary custody during the pendency of the court case, the type of visitation the child will have with the party who does not have custody, temporary child support, etc. The court will usually order the petitioner's home and the parents' home to be evaluated. If, after the evaluation is received by the parties and the court, the parties still cannot reach agreement as to custody, a trial will be held. The court will take the recommendation of the evaluator into consideration when making its decision.

After a final hearing, the court will issue an order stating who is to be granted legal custody of the child (legal custody may be sole or joint) and who is to be granted physical custody of the child. The court's order will also address the issues of visitation and child support.

11. What if the parents want to give custody to a relative or another third party?

Parents and third parties, relatives and non-relatives alike, can agree to a custody order if the parents agree that it is in the best interests of the child to be in the care of a de facto custodian or interested third party. If the child's parents support the caregiver's custody petition, no final hearing is necessary.

Further, a parent may transfer legal and physical custody of a child to a third party by a custody consent decree. The custody consent decree must state that the custodian has the ability to determine the child's residence; make decisions regarding the child's education, religious training, and health care; and obtain information and public services on behalf of the child in the same manner as a parent. The consent decree must indicate whether it is temporary or permanent and provide for child support and visitation. The court will approve the custody arrangement if it is in the best interests of the child. This option gives the parties the most flexibility to tailor the custody order to their circumstances.

12. What can a relative caregiver do in an emergency situation?

Often, parents are quite content to allow caregivers to care for their children, as long as the caregiver takes no legal action. This changes, however, once they are served with the summons and petition for custody. Parents may get angry and come to take the child away. Without a temporary order, the caregiver is unable to keep the children from going with the parents. Therefore, it is wise to obtain an emergency temporary order of custody at the same time the petition for custody is filed, if there is any fear that the parents may come to get the child.

The courts have an emergency procedure that allows parties to get emergency orders quickly, so that the child remains where the child has been, or in a safe place, until the story can be sorted out by the court.

13. What about mediation?

Parties in third party custody cases should always consider mediation as a means to solve the custody dispute. A mediator is professionally trained and does not take sides in a case. The mediator will assist the parties to come together and craft a solution that works for everyone. It is a difficult process, but it usually is in a child’s best interests if the people in the child’s life can work together to create a safe and stable home for the child.

14. How long does third-party custody last?

For all intents and purposes, an order of custody is permanent. Parties can ask the court to modify the custody order after it has been in effect for a year. Getting the court to change custody is not an easy task.

A custody order can be changed if all of the parties agree to the change. If the parties do not agree, the court can change the custody order only if it finds that (1) a change has occurred in the circumstances of the child or the parties, and that (2) the modification is necessary to serve the child's best interests. Generally, if a grandparent has custody of a child the court will not change custody of the child unless the grandparent agrees to the modification, the child is back with

his/her parent(s) with the grandparent's consent, or the court finds that living with the grandparent is harmful to the child.

However, child support and visitation orders can be more easily changed. Either the grandparent or the child's parent(s) may seek modification of child support provisions in a number of circumstances including: (1) a change in the grandparent's financial situation, (2) a change in the parents' financial situation, or (3) a change in the child's need or age. The visitation provisions can be changed if modification would be in the child's best interests. In both cases, the person wanting the change must go to court unless the other party agrees to the change.

15. Is a third-party custodian eligible to receive any public assistance for the child?

Yes. A child living in the legal and physical custody of someone other than his or her parents is considered a dependent child and is eligible for MFIP-Child Only benefits. If the caregiver got the order of custody from juvenile court, the child may be eligible for Relative Custody Assistance, which also includes Medical Assistance. Once a caregiver obtains custody, the caregiver cannot be that child’s foster parent.

16. How is third-party custody different from guardianship or adoption?

A parent’s parental rights to a child are not terminated if the child is placed in a third party’s custody. The court will require the parents to contribute to the financial support of the child and allow visitation. If the caregiver gets custody, the child will still be the parents' child for purposes of inheritance and social security.

If the child is adopted, the parents’ rights have been terminated, and the caregivers become the legal parents of the child. Adoption is covered in the next session.

Custody differs from legal guardianship because in order to get a legal guardianship, the parental rights of both parents or the only living parent must be terminated or both parents must be deceased.