Tuft, Lach, Jerabek & O’Connell, PLLC can assist you in third party custody cases. Minnesota law provides that a non-parent may petition for custody of a child under exceptional circumstances. This is a private cause of action and is distinct from a child protection proceeding. To have standing to file a petition for third party custody, a party must be either:
- A de facto custodian: meaning that the child has resided with the individual seeking custody within the 24 months preceding the filing of the petition without a parent present and with lack of demonstrated consistent participation by a parent for a period of six months if the child is under 3 years of age, or a period of one year or more if the child is age 3 or older, not including certain types of voluntary placements with the third party; or
- An interested third party: meaning a person who is not a de facto custodian and who did not have a child placed in his/her care through certain types of voluntary placement who can prove that the best interests of the minor child will be served by placing custody of the child with them and that at least one of the following factors is met:
- 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 exist.
To bring a successful action for third party custody, the evidence must be compelling that awarding custody to a non-parent is in the best interests of the child. Among many factors, the court will consider all relevant circumstances and the best interests of the child, which are determined by consideration of the following factors:
- the wishes of the party or parties as to custody;
- the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
- the child’s primary caretaker;
- the intimacy of the relationship between each party and the child;
- the 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;
- the child’s adjustment to home, school, and community;
- the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
- the permanence, as a family unit, of the existing or proposed custodial home;
- the mental and physical health of all individuals involved; except that a disability, as defined in section 363A.03, subdivision 12, of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interests of the child;
- the 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;
- the child’s cultural background; and
- the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section 518B.01, subdivision 2, that has occurred between the parents or the parties.
If a third party is awarded custody, the minor child’s parents may retain visitation rights and may be ordered to pay child support to the custodian.
For more information contact Tuft, Lach, Jerabek & O’Connell, PLLC at 651-771-0050 to schedule a consultation with one of our experienced family law attorneys.
