3rd Party Custody & Visitation

In certain cases, a person who is not a parent to a child may have the ability to petition the court for custody or visitation with a child. Referred to as third party custody or visitation, this is often another relative of a child (a grandparent, aunt or uncle) who is concerned about the care and safety of a child in the parents’ care.

Generally, there must be a significant relationship between the child and the third party seeking custody. Individuals who have been the primary caretaker for a child for a significant period of time without a parent present or involved in raising the child may be considered a de facto custodian and may have a good chance of obtaining custody of that child. Others may petition for custody as an interested third party if they can prove to the court one of the following:

1. 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;
2. 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
3. other extraordinary circumstances.

Always, it must be in the best interests of the child for custody to be transferred from a parent to a third party.

The following are also considered by the court:

1. the amount of involvement the interested third party had with the child during the parent’s absence or during the child’s lifetime;
2. the amount of involvement the parent had with the child during the parent’s absence;
3. the presence or involvement of other interested third parties;
4. the facts and circumstances of the parent’s absence;
5. the parent’s refusal to comply with conditions for retaining custody set forth in previous court orders;
6. whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence;
7. whether a sibling of the child is already in the care of the interested third party; and

Third Party Visitation

Minnesota law allows for a non-parent (other than a foster parent) to petition the court for visitation with a minor, unmarried child if the child resided in the household with the individual for at least two years. The court is required to grant the petition for visitation if it finds that:

1. visitation rights would be in the best interests of the child;
2. the individual and child had established emotional ties creating a parent and child relationship; and
3. visitation rights would not interfere with the relationship between the custodial parent and the child.

The court is required to consider the reasonable preference of the child, if the court considers the child to be of sufficient age to express a preference.

Third party custody and visitation cases are complex. It is extremely advisable for anyone considering filing a third party custody or visitation case to consult with an attorney experienced in these cases. Contact 651-756-8781 or email [email protected] to schedule a free half hour consultation.