Third party custody cases sound complicated, but they are really just a custody case between a third party—like a grandparent, aunt, sister, or family friend—and the child’s parent or parents. A typical custody case, by contrast, is between the two parents alone.

It used to be that biological parents were always presumed by the law to be fit, and efforts by third parties to seek custody and protect a child often failed because of this presumption of fitness.

In 2002, however, the Minnesota Legislature passed the De Facto Custodian and Interested Third Party bill. This law establishes that if a third party can show that they have had actual physical custody of a child for 6 months or more for a child under 3, or 12 months or more for a child over 3, they would be considered “de facto” custodian. In those situations, the parents are no longer entitled to the presumption of fitness, as long as the parents cannot show demonstrated consistent participation in the child’s life.

In some cases, if a third party does not have custody of the child for the time periods above, they can still obtain custody as “interested third parties” by showing the parent has:

(i) 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;

(ii) 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

(iii) other extraordinary circumstances.

Mark Fiddler, an attorney at Fiddler Osband Flynn, was one of the drafters of this law. Our firm is well acquainted with how this law is an important tool that families and friends are sometimes forced to use when they see a child being abused or neglected by the parents, but perhaps the case is not considered “bad enough” by child protection authorities such that they will intervene.