From Cassie’s interview for the Masters of Family Law series on ReelLawyers.com
Third-party custody is when someone other than the child’s parents has court-ordered legal and physical custody of the child; 3 out of 4 times that third-party is a grandparent of the child.
Third parties usually seek 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. If you have cared for a child in your home for a long period of time, you might seek custody in order to have a clear, enforceable court order establishing where the child is going to live and what sort of visitation the parents may have. You may want to ensure that the parent(s) cannot take the child from your 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 left to reside with a virtual stranger. These relatives should take steps to become third-party custodians.
A custodian is a person responsible for the care, control, and maintenance of a child. An individual is a de facto custodian if he or she can show that they have been the primary caregiver for a child for a specific length of time (determined by the child’s age) and that the parent has refused or neglected to comply with their parental duties. An individual is entitled to a hearing to prove he or she is a de facto custodian.
To be considered an interested third party, you must show that the parent has abandoned, neglected or otherwise exhibited a harmful disregard for the child’s well- being; and that the presence of this physical or emotional danger makes the safe placement of the child a higher priority than preserving the parent-child relationship. Other extraordinary circumstances may also be considered.
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 puts long-term caregivers on equal footing with the parents in custody disputes. However, this does not mean that receiving an order for third-party custody is a simple process, and working with a skilled custody attorney is highly recommended.
To determine the best interest of the child, the court will evaluate numerous factors regarding the child’s current care and living arrangements, relationships between the child and all parties involved in the case, and the wishes of each party (including the child if he or she is considered old enough to express a preference). The court will also consider the child’s adjustment to home, school, and community; and their cultural background.
Knowing how to collect and present the appropriate evidence to show what is truly in the child’s best interest requires experience and knowledge of the family court system. It is a difficult process, but it is usually in a child’s best interests if the people in the child’s life can work together to create a safe and stable home. At Atticus Family Law, our focus is always on helping families resolve their legal issues favorably and quickly so they can move on with their lives. If you’d like to schedule a consultation with one of our family law attorneys, contact our office today.
Imagine being in your late 60s, retired from work, and securing sole legal and physical custody of your 18-month-old granddaughter. About 10 years ago that’s exactly what we were able to persuade a judge to award our clients, Robert & Victoria*.
The case started when our clients’ 40-year-old son, Bobby along with their grandchild’s mother, Erin, brought an adorable, chubby-cheeked little girl into the world. Quickly, our clients recognized three truths:
– Bobby had no interest in being a father for his daughter
– Erin was not fit to have custody
– They couldn’t stand by to let their granddaughter be raised by her mother
Shortly thereafter Robert & Victoria retained our firm to bring a Ramsey County third-party/grandparent custody claim in the city of St. Paul. We filed the necessary motions to secure a temporary order that allowed Robert & Victoria to resume visitation with the child (Erin had cut them off when she was served with the custody papers). Thereafter we had a Guardian ad Litem appointed who supported a 2nd temporary order to reverse temporary custody to our clients.
The Guardian ad Litem would eventually recommend in her final report permanent custody to Robert & Victoria. Regardless Erin would not agree.
As such we readied for trial. We prepared Robert & Victoria to testify. We identified what other witnesses we wanted to call. We compiled all of the documents that we wanted the judge to review in an exhibit book. We knew our file inside and out. We were ready to cross-exam any witness including Erin. And we made sure to keep close tabs on any developments and the positions of a guardian ad litem so that we could address any late-breaking concerns.
The matter went to trial before a judge. It took three days for all of the testimony to be heard and all exhibits to be submitted. 90 days after submitting post-trial arguments and proposed orders, the judge issued the custody decree that gave Robert & Victoria sole legal custody and sole physical custody of their granddaughter. It also outlined specific requirements on Erin and her supervised parenting time, so that the child could be protected while still benefiting from seeing Erin. That was 2011 when that decree was issued. Robert & Victoria and their granddaughter continue to thrive happily to this day.
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