At Lommen Abdo, our Minnesota family law attorney often receive questions from grandparents, stepparents, and other non-parent caregivers about their legal rights in family law proceedings. Whether you’re a grandparent seeking visitation or a third party concerned for a child’s well-being, Minnesota law provides a legal framework for asserting rights in appropriate circumstances.
Below, we explain the difference between third-party visitation rights and third-party custody, and how these laws apply to grandparent visitation in divorce and other family law proceedings.
Third-Party Visitation Rights in Minnesota
Under Minnesota Statute § 257C.08, certain non-parents—including grandparents—may petition the court for visitation with a minor child. These non-parent visitation petitions most often arise when:
1. A parent is deceased,
2. The child has resided with the grandparent or non-parent for a significant period of time, or
3. A divorce, custody, legal separation, annulment, or parentage proceeding is pending or concluded.
To be successful, the person seeking visitation must show:
1. That visitation is in the best interests of the child, and
2. That the visitation would not interfere with the parent-child relationship.
The court will weigh several factors, including the emotional ties between the child and the petitioner, the child’s preference (if of sufficient age), and the quality of prior contact. Courts require clear and convincing evidence that these requirements are met, and special deference is given to the custodial parent’s opinion.
Grandparent Visitation in Divorce
During or after a divorce, grandparent visitation in divorce cases are common. If the child’s parents are divorcing or legally separating, or if one parent is deceased, a grandparent may petition the court for parenting time under § 257C.08.
Visitation is not guaranteed. Minnesota courts are careful to preserve the parent-child relationship and will not grant excessive visitation that interferes with the custodial parent’s rights. For example, Minnesota appellate courts have reversed orders that gave grandparents parenting time resembling a custody arrangement, emphasizing that grandparents are not legal parents and should not be treated as such.
Grandparents who previously lived with the child, or who had substantial involvement in the child’s life, may have stronger claims for visitation. However, even in close relationships, courts prioritize parental autonomy unless significant harm or interference can be shown.
Third-Party Custody
Third-party custody issues arise when someone other than a parent seeks custody of a child. These actions seek rights and responsibilities beyond the visitation rights discussed above. This typically occurs when a grandparent, stepparent, or another non-parent has been the child’s primary caregiver or fears that the child is at risk in the care of their parent.
Minnesota law recognizes two categories of non-parent custodians:
1. De Facto Custodians – Individuals who have lived with the child for a significant period while assuming a parental role, often with little to no involvement from the legal parents.
2. Interested Third Parties – Individuals who can show:
a. The parent has abandoned, neglected, or disregarded the child’s well-being,
b. The child faces emotional or physical danger with the parent, or
c. Other extraordinary circumstances exist.
Both categories require the petitioner to prove that awarding custody to them is in the child’s best interests under Minn. Stat. § 257C.04. This includes evaluating the emotional bond between the child and the parties, the child’s adjustment to home and school, and any history of domestic abuse.
Third-party custody can be established through a contested court proceeding or by a written agreement, provided the written agreement satisfies certain requirements. Third-party custody can be established temporarily or permanently. However, a permanent third-party custody order does not terminate parental rights, thereby allowing a legal parent to petition for a modification in the future.
Courts do not automatically prefer biological parents over third-party custodians. Instead, each case is analyzed on its own facts, and the burden remains with the non-parent to prove both their legal standing and that custody serves the child’s welfare. In fact, some Minnesota courts have ruled in favor of grandparents, stepparents, long-term caregivers, or even aunts and uncles when a legal parent has been absent, uninvolved, or unable to provide a stable environment for the child.
When to Consult Minnesota Family Law Attorneys
Navigating non-parent visitation or third-party custody proceedings can be emotionally and legally complex. Whether you’re a grandparent who’s been shut out of a child’s life after a divorce, or a non-parent caregiver seeking to protect a child from harm, it is critical to understand your rights and how to assert them under Minnesota law.
At Lommen Abdo, our experienced Minnesota family law attorney are here to help you assess your options and advocate for the child’s best interests. If you are considering filing for third-party visitation rights or custody, contact us today to schedule a consultation.