The third party custody statute is a powerful tool with life changing consequences for all parties and children involved. In exceptional circumstances, the third party custody statute allows a party, who is not the legal parent of a child, to petition for legal and/or physical custody of a child. Third party custody cases can arise in a variety of situations including where a child has been subjected to abuse or neglect, where the biological parents are unable to provide adequate care for a child, or where a biological or legal parent of a child is deceased.

A third party custody proceeding is separate and distinct from a child protection proceeding. As part of a third party custody proceeding, the Court may determine:

(1) the legal custody of a minor child, whether sole or joint;

(2) the child's physical custody and residence;

(3) the quality and duration of parenting time and whether it is supervised or unsupervised;

(4) child support as determined under chapter 518A; and

(5) other matters reasonably affecting the best interests of the child.

While the court may not terminate parental rights under the third party custody statute, if warranted, the parental rights may be severely restricted.

From the standpoint of a concerned friend or relative, the third party custody statute may seem justified to help protect children in need. However, from perspective of the parent, the power of a private third party to intervene in matters of custody and childrearing may seem unfathomable. Nonetheless, the United States Supreme Court has recognized the ability of third parties to intervene and restrict a parent’s fundamental right to make decisions concerning the care, custody, and control of a child under exceptional circumstances. Under Minnesota law, third parties may petition for custody of a child if they qualify as either a “de facto custodian” or as an “interested third party.”

A “de facto custodian" is defined as an individual who has been the primary caretaker for a child who has, within the 24 months immediately preceding the filing of the petition, resided with the individual without a parent present and with a lack of demonstrated consistent participation by a parent for a period of six months or more, which need not be consecutive, if the child is under three years of age; or one year or more, which need not be consecutive, if the child is three years of age or older.

An “interested third party” is defined as an individual who, is not a de facto custodian, but who can show by clear and convincing evidence that one of the following factors exist:

(i) 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;

(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;

The “interested third party” must also prove by a preponderance of the evidence that it is in the best interests of the child to be in the custody of the interested third party.

A third party custody proceeding may transfer physical and legal custodial rights to a third party, but does not relieve the legal parent of his or her duty to support the child. A preexisting child support order is not suspended or terminated when a third party takes custody of a child unless otherwise provided by court order. A third-party custodian has a cause of action against a parent for child support and the public authority has a cause of action against a parent for child support.

Third party custody determinations are considered permanent orders, but are subject to modification just as a custody determination in a parental custody proceeding.

Valerie Arnold is a partner at Tuft & Arnold, PLLC and a fellow of the International Academy of Matrimonial Lawyers. Ms. Arnold practices in all areas of family law including divorce, mediation, interstate and international divorce and child custody, Hague Convention, non-Hague parental child abduction, parental child abduction prevention, third-party custody and visitation, and appellate law.