2002 Minnesota Statutes

CHAPTER 257C. De facto custodian and interested third party

     257C.01 Definitions. 

    Subdivision 1.    Scope.  The definitions in this 
 section apply to this chapter. 

    Subd. 2.    De facto custodian.  (a) "De facto custodian"
 means 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: 

    (1) six months or more if the child is under three years of 
 age; or 

    (2) one year or more if the child is three years of age or 
 older. 

    (b) For purposes of the definition in this subdivision, any 
 period of time after a legal proceeding has been commenced and 
 filed must not be included in determining whether the child has 
 resided with the individual for the required minimum period. 

    (c) For purposes of the definition in this subdivision, 
 "lack of demonstrated consistent participation" by a parent 
 means refusal or neglect to comply with the duties imposed upon 
 the parent by the parent-child relationship, including, but not 
 limited to, providing the child necessary food, clothing, 
 shelter, health care, education, creating a nurturing and 
 consistent relationship, and other care and control necessary 
 for the child's physical, mental, or emotional health and 
 development.  

    (d) "De facto custodian" does not include an individual who 
 has a child placed in the individual's care: 

    (1) through a custody consent decree under section 257C.07; 

    (2) through a court order or voluntary placement agreement 
 under chapter 260C; or 

    (3) for adoption under chapter 259. 

    (e) A standby custody designation under chapter 257B is not 
 a designation of de facto custody unless that intent is 
 indicated within the standby custody designation. 

    Subd. 3.    Interested third party.  (a) "Interested 
 third party" means an individual who is not a de facto custodian 
 but who can prove that at least one of the factors in section 
 257C.03, subdivision 7, paragraph (a), is met. 

    (b) "Interested third party" does not include an individual 
 who has a child placed in the individual's care: 

    (1) through a custody consent decree under section 257C.07; 

    (2) through a court order or voluntary placement under 
 chapter 260C; or 

    (3) for adoption under chapter 259. 

    HIST: 2002 c 304 s 1,13 

     257C.02 Application of other law; construction. 

    (a) Chapters 256, 257, and 518 and section 525.551 apply to 
 third-party and de facto custody proceedings unless otherwise 
 specified in this chapter.  De facto or third-party child 
 custody proceedings concerning an Indian child are child custody 
 proceedings governed by the Indian Child Welfare Act, United 
 States Code, title 25, sections 1901 to 1963; by the Minnesota 
 Indian Family Preservation Act, sections 260.751 to 260.835; and 
 by this chapter when not inconsistent with the Indian Child 
 Welfare Act or the Minnesota Indian Family Preservation Act. 

    (b) Nothing in this chapter relieves a parent of a duty to 
 support the parent's 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 de facto 
 or third-party custodian has a cause of action against a parent 
 for child support under section 256.87, subdivision 5, and the 
 public authority has a cause of action against a parent for 
 child support under section 256.87, subdivision 1. 

    (c) Nothing in this chapter prohibits the establishment of 
 parentage under chapter 257. 

    HIST: 2002 c 304 s 2 

     257C.03 Procedure. 

    Subdivision 1.    Commencement of proceedings.  (a) In a 
 court of this state with jurisdiction to decide child custody 
 matters, a de facto or third-party child custody proceeding may 
 be brought by an individual other than a parent by filing a 
 petition seeking custody in the county where: 

    (1) the child is permanently a resident, the child is 
 found, or an earlier order for custody of the child has been 
 entered; or 

    (2) the court has jurisdiction over the matter under 
 chapter 518D. 

    (b) The proceeding is commenced by personal service of the 
 summons and petition. 

    (c) An individual other than a parent who seeks visitation 
 under this section must qualify under one of the provisions of 
 section 257C.08, and must comply with the provisions of this 
 subdivision to commence the proceeding. 

    Subd. 2.    Requisites of petition or motion.  (a) A 
 petition for custody filed under this section must state and 
 allege: 

    (1) the name and address of the petitioner and any prior or 
 other name used by the petitioner; 

    (2) the name and, if known, the address and social security 
 number of the respondent mother and father or guardian and any 
 prior or other name used by the respondent and known to the 
 petitioner; 

    (3) the name and date of birth of each child for whom 
 custody is sought; 

    (4) the relationship of the petitioner to each child for 
 whom custody is sought; 

    (5) the petitioner or petitioners' basis for jurisdiction 
 under section 257C.01, subdivision 2 or 3; 

    (6) the current legal and physical custodial status of each 
 child for whom custody is sought and a list of all prior orders 
 of custody, if known to the petitioner; 

    (7) whether any party is a member of the armed services; 

    (8) the length of time each child has resided with the 
 petitioner and has resided in the state of Minnesota; 

    (9) whether a separate proceeding for dissolution, legal 
 separation, or custody is pending in a court in this state or 
 elsewhere; 

    (10) whether a permanent or temporary standby custody 
 designation has been executed or filed in a court in this state 
 or elsewhere; 

    (11) whether a permanent or temporary standby custody 
 designee differs in identity from the de facto custodian and 
 reasons why the proposed de facto custodian should have 
 custodial priority over a designated standby custodian; 

    (12) whether parenting time should be granted to the 
 respondents; 

    (13) any temporary or permanent child support, attorney 
 fees, costs, and disbursements; 

    (14) whether an order of protection under chapter 518B or a 
 similar law of another state that governs the parties or a party 
 and a minor child of the parties is in effect and, if so, the 
 district court or similar jurisdiction in which it was entered; 
 and 

    (15) that it is in the best interests of the child under 
 section 257C.04 that the petitioner have custody of the child. 

    (b) The petition must be verified by the petitioner or 
 petitioners and its allegations established by competent 
 evidence. 

    Subd. 3.    Written notice.  (a) Written notice of a 
 hearing on a petition to establish de facto or third-party 
 custody of a child must be given to: 

    (1) the parent of the child, if: 

    (i) the person's name appears on the child's birth 
 certificate as a parent; 

    (ii) the person has substantially supported the child; 

    (iii) the person either was married to the person 
 designated on the birth certificate as the natural mother within 
 the 325 days before the child's birth or married that person 
 within the ten days after the child's birth; 

    (iv) the person is openly living with the child or the 
 person designated on the birth certificate as the natural mother 
 of the child, or both; 

    (v) the person has been adjudicated the child's parent; 

    (vi) the person has filed a paternity action within 30 days 
 after the child's birth and the action is still pending; or 

    (vii) the person and the mother of the child signed a 
 declaration of parentage under section 257.34 before August 1, 
 1995, which has not been revoked, or a recognition of parentage 
 under section 257.75 which has not been revoked or vacated; 

    (2) the guardian or legal custodian, if any, of the child; 
 and 

    (3) the child's tribe pursuant to section 260.761, 
 subdivision 3, if the child is an Indian child. 

    (b) Notice under this section need not be given to a person 
 listed in this subdivision whose parental rights have been 
 terminated.  

    (c) Written notice of a hearing on a petition to establish 
 de facto or third-party custody of a child must be given to the 
 public authority if either parent receives public assistance, 
 the petitioner receives public assistance on behalf of the 
 child, or either parent receives child support enforcement 
 services from the public authority or applies for public 
 assistance or child support enforcement services from the public 
 authority after a petition under this section is filed.  Notice 
 to the public authority must include a copy of the petition. 

    Subd. 4.    Approval without hearing.  (a) Approval of 
 an order under this section without a hearing is permitted if 
 both parents consent by stipulation or agreement that it is in 
 the best interests of the child to be in the custody of the de 
 facto custodian or interested third party. 

    (b) If either parent receives public assistance, the 
 petitioner receives public assistance on behalf of the child, or 
 either parent receives child support enforcement services from 
 the public authority, the petitioner must notify the public 
 authority of the stipulation or agreement under this subdivision.

    Subd. 5.    Emergency or temporary hearings.  (a) The 
 court must be guided by the factors set forth in sections 
 518.131, concerning temporary orders and restraining orders; 
 518.551, concerning child support; 518.17 to 518.175, concerning 
 custody and parenting time; and 518.14, concerning costs and 
 attorney fees, in making temporary orders and restraining orders.

    (b) The court may grant ex parte relief only if requested 
 by a motion with a properly executed supporting affidavit.  The 
 affidavit must outline specific supporting facts as to why the 
 case needs to be expedited. 

    (c) The court shall grant ex parte or temporary relief if 
 the petitioner and situation fit the factors outlined for de 
 facto custodian or third-party custodian under subdivisions 6 
 and 7, and section 257C.01, subdivisions 2 and 3. 

    (d) If the court orders temporary custody under this 
 subdivision, the de facto custodian or interested third party 
 shall seek temporary or permanent custody of the child pursuant 
 to a petition under this chapter and the other standards of this 
 chapter apply. 

    Subd. 6.    De facto custodian; burden of proof; factors. 
  (a) To establish that an individual is a de facto custodian, 
 the individual must: 

    (1) show by clear and convincing evidence that the 
 individual satisfies the provisions of section 257C.01, 
 subdivision 2; and 

    (2) prove by a preponderance of the evidence that it is in 
 the best interests of the child to be in the custody of the de 
 facto custodian.  

    (b) The following factors must be considered by the court 
 in determining a parent's lack of demonstrated consistent 
 participation for purposes of section 257C.01, subdivision 2: 

    (1) the intent of the parent or parents in placing the 
 child with the de facto custodian; 

    (2) the amount of involvement the parent had with the child 
 during the parent's absence; 

    (3) the facts and circumstances of the parent's absence; 

    (4) the parent's refusal to comply with conditions for 
 retaining custody set forth in previous court orders; 

    (5) whether the parent now seeking custody was previously 
 prevented from doing so as a result of domestic violence; and 

    (6) whether a sibling of the child is already in the 
 petitioner's care.  

    (c) In determining the best interests of the child, the 
 court must apply the standards in section 257C.04. 

    Subd. 7.    Interested third party; burden of proof; 
 factors.  (a) To establish that an individual is an interested 
 third party, the individual must: 

    (1) 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; and 

    (2) 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. 

    (b) The following factors must be considered by the court 
 in determining an interested third party's petition: 

    (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 

    (8) the existence of a standby custody designation under 
 chapter 257B. 

    (c) In determining the best interests of the child, the 
 court must apply the standards in section 257C.04. 

    Subd. 8.    Dismissal of petition.  (a) The court must 
 dismiss a petition for custody if the court finds that: 

    (1) the petitioner is not a de facto custodian as set forth 
 in section 257C.01, subdivision 2; 

    (2) the petitioner does not establish at least one of the 
 factors in subdivision 7, paragraph (a); or 

    (3) placement of the child with the petitioner is not in 
 the best interests of the child. 

    (b) If the court finds that a party cannot establish 
 factors for visitation under section 257C.08, the court must 
 dismiss a petition for visitation. 

    HIST: 2002 c 304 s 3,13 

     257C.04 Best interests of a child. 

    Subdivision 1.    Custody factors.  (a) If two or more 
 parties seek custody of a child, the court must consider and 
 evaluate all relevant factors in determining the best interests 
 of the child, including the following factors: 

    (1) the wishes of the party or parties as to custody; 

    (2) the reasonable preference of the child, if the court 
 deems the child to be of sufficient age to express preference; 

    (3) the child's primary caretaker; 

    (4) the intimacy of the relationship between each party and 
 the child; 

    (5) 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; 

    (6) the child's adjustment to home, school, and community; 

    (7) the length of time the child has lived in a stable, 
 satisfactory environment and the desirability of maintaining 
 continuity; 

    (8) the permanence, as a family unit, of the existing or 
 proposed custodial home; 

    (9) the mental and physical health of all individuals 
 involved; except that a disability, as defined in section 
 363.01, subdivision 13, 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; 

    (10) 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; 

    (11) the child's cultural background; and 

    (12) 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. 

    (b) The court may not use one factor to the exclusion of 
 all others.  The court must make detailed findings on each of 
 the factors and explain how the factors led to its conclusions 
 and to the determination of the best interests of the child. 

    (c) The court must not give preference to a party over the 
 de facto custodian or interested third party solely because the 
 party is a parent of the child. 

    (d) The court must not prefer a parent over the de facto 
 custodian or third party custodian solely on the basis of the 
 gender of the parent, de facto custodian, or third party. 

    (e) The fact that the parents of the child are not or were 
 never married to each other must not be determinative of the 
 custody of the child. 

    (f) The court must consider evidence of a violation of 
 section 609.507 in determining the best interests of the child. 

    (g) The court must not consider conduct of a proposed 
 custodian that does not affect the custodian's relationship to 
 the child. 

    (h) Section 518.619 applies to actions under this section. 

    Subd. 2.    Factors when joint custody is sought.  (a) 
 In addition to the factors listed in subdivision 1, if either 
 joint legal or joint physical custody is contemplated or sought, 
 the court must consider the following relevant factors: 

    (1) the ability of the parties to cooperate in the rearing 
 of the child; 

    (2) methods for resolving disputes regarding any major 
 decision concerning the life of the child and the parties' 
 willingness to use those methods; 

    (3) whether it would be detrimental to the child if one 
 party were to have sole authority over the child's upbringing; 
 and 

    (4) whether domestic abuse, as defined in section 518B.01, 
 subdivision 2, has occurred between the parties. 

    (b) If the court awards joint legal or physical custody 
 over the objection of a party, the court must make detailed 
 findings on each of the factors in this subdivision and explain 
 how the factors led to its determination that joint custody 
 would be in the best interests of the child. 

    HIST: 2002 c 304 s 4 

     257C.05 De facto and third party custody orders. 

    Subdivision 1.    Custody order.  In a child custody 
 proceeding under this chapter, the court must make any 
 additional order it considers just and proper concerning: 

    (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 section 518.551; and 

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

    Subd. 2.    Attachments to custody order.  All de facto 
 and interested third party custody orders must include Form 3:  
 Appendix A under the Appendix of Forms in the Family Court 
 Procedure in General Rules of Practice.  The court may also 
 notify the parties of the availability and uses of mediation. 

    HIST: 2002 c 304 s 5 

     257C.06 Modification. 

    The procedures in section 518.18 for modification of a 
 custody order also govern modification of an order under this 
 chapter. 

    HIST: 2002 c 304 s 6 

     257C.07 Custody consent decree. 

    A parent may transfer legal and physical custody of a child 
 to a relative by a consent decree entered under this section.  
 The court may approve a proposed consent decree if the custody 
 arrangement is in the best interests of the child and all 
 parties to the decree agree to it after being fully informed of 
 its contents.  A consent decree under this section must: 

    (1) transfer legal and physical custody of the child to a 
 named relative and state that this includes the ability to 
 determine the child's residence; make decisions regarding the 
 child's education, religious training, and health care; and 
 obtain information and public services on behalf of the child in 
 the same manner as a parent; 

    (2) indicate whether the transfer of custody is temporary 
 or permanent; and 

    (3) include an order for child support in the guidelines 
 amount and an allocation of child care costs as provided by 
 section 518.551, subject to income withholding under section 
 518.6111 and including an order for medical support under 
 section 518.171. 

    Either a parent or a relative who is party to a consent 
 decree under this section may file a motion to modify or 
 terminate the consent decree at any time.  A party who has 
 custody of a child under this section must seek modification of 
 the consent decree before transferring physical or legal custody 
 of the child to anyone. 

    For purposes of this section, "relative" means an adult who 
 is a stepparent, grandparent, brother, sister, uncle, aunt, or 
 other extended family member of a minor by blood, marriage, or 
 adoption. 

    HIST: 1997 c 112 s 2; 1997 c 203 art 6 s 92; 2002 c 304 s 13 

     257C.08 Rights of visitation to unmarried persons. 

    Subdivision 1.    If parent is deceased.  If a parent of 
 an unmarried minor child is deceased, the parents and 
 grandparents of the deceased parent may be granted reasonable 
 visitation rights to the unmarried minor child during minority 
 by the district court upon finding that visitation rights would 
 be in the best interests of the child and would not interfere 
 with the parent child relationship.  The court shall consider 
 the amount of personal contact between the parents or 
 grandparents of the deceased parent and the child prior to the 
 application. 

    Subd. 2.    Family court proceedings.  (a) In all 
 proceedings for dissolution, custody, legal separation, 
 annulment, or parentage, after the commencement of the 
 proceeding, or at any time after completion of the proceedings, 
 and continuing during the minority of the child, the court may, 
 upon the request of the parent or grandparent of a party, grant 
 reasonable visitation rights to the unmarried minor child, after 
 dissolution of marriage, legal separation, annulment, or 
 determination of parentage during minority if it finds that:  (1)
 visitation rights would be in the best interests of the child; 
 and (2) such visitation would not interfere with the 
 parent-child relationship.  The court shall consider the amount 
 of personal contact between the parents or grandparents of the 
 party and the child prior to the application. 

    (b) If a motion for grandparent visitation has been heard 
 and denied, unless agreed to in writing by the parties, no 
 subsequent motion may be filed within six months after 
 disposition of a prior motion on its merits. 

    Subd. 3.    If child has resided with grandparents.  If 
 an unmarried minor has resided with grandparents or 
 great-grandparents for a period of 12 months or more, and is 
 subsequently removed from the home by the minor's parents, the 
 grandparents or great-grandparents may petition the district 
 court for an order granting them reasonable visitation rights to 
 the child during minority.  The court shall grant the petition 
 if it finds that visitation rights would be in the best 
 interests of the child and would not interfere with the parent 
 and child relationship. 

    Subd. 4.    If child has resided with other person.  If 
 an unmarried minor has resided in a household with a person, 
 other than a foster parent, for two years or more and no longer 
 resides with the person, the person may petition the district 
 court for an order granting the person reasonable visitation 
 rights to the child during the child's minority.  The court 
 shall grant the petition if it finds that: 

    (1) visitation rights would be in the best interests of the 
 child; 

    (2) the petitioner 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 shall consider the reasonable preference of the 
 child, if the court considers the child to be of sufficient age 
 to express a preference. 

    Subd. 5.    Exception for adopted children.  This 
 section shall not apply if the child has been adopted by a 
 person other than a stepparent or grandparent.  Any visitation 
 rights granted pursuant to this section prior to the adoption of 
 the child shall be automatically terminated upon such adoption. 

    Subd. 6.    Grandparent visitation with an adopted child. 
  (a) A grandparent of a child adopted by a stepparent may 
 petition and a court may grant an order setting visitation with 
 the child if: 

    (1) the grandparent is the parent of: 

    (i) a deceased parent of the child; or 

    (ii) a parent of the child whose parental relationship was 
 terminated by a decree of adoption according to section 259.57, 
 subdivision 1; and 

    (2) the court determines that the requested visitation: 

    (i) is in the best interests of the child; and 

    (ii) would not interfere with the parent and child 
 relationship. 

    (b) Failure to comply with the terms of an order for 
 visitation granted under this subdivision is not a basis for 
 revoking, setting aside, or otherwise challenging the validity 
 of a consent, relinquishment, or adoption of a child. 

    Subd. 7.    Establishment of interference with parent and 
 child relationship.  The court may not deny visitation rights 
 under this section based on allegations that the visitation 
 rights would interfere with the relationship between the 
 custodial parent and the child unless after a hearing the court 
 determines by a preponderance of the evidence that interference 
 would occur. 

    Subd. 8.    Visitation proceeding may not be combined with 
 proceeding under chapter 518B.  Proceedings under this section 
 may not be combined with a proceeding under chapter 518B. 

    HIST: 1976 c 198 s 1; 1977 c 238 s 1,2; 1986 c 444; 1988 c 668 
 s 4; 1989 c 248 s 1; 1993 c 62 s 1; 1993 c 322 s 3,4; 1997 c 177 
 s 2,3; 1998 c 254 art 2 s 27,28; 2002 c 304 s 13