Wrongly, grandparents can easily be cast in the ‘dowdy’ mould of an itinerant, doting subordinate, having no role in actively meeting a child’s daily needs, but defiantly spoiling the child and thwarting the beleaguered parent’s efforts to raise the child to become a responsible, productive adult. It can be tempting to think of a grandparent as ‘lacking’ ability to actually ‘parent’ a child as much as ‘pander’ to the child’s whims.
If you’re of age, think of the 1980’s coming-of-age teen comedy, Sixteen Candles, and the eye-rolling depictions of the protagonist, Sam’s (played by Molly Ringwald) grandparents, who converge on Sam’s household, even ousting Sam from her own bedroom, while attending a family wedding for which Sam’s 16th birthday has been confoundingly upstaged; in fact altogether forgotten by her family.
Molly’s grandparents, while no doubt well-meaning and loving, present as clueless and inept at navigating daily life; and are well out-of-their league in understanding the needs of their grandchildren, much less a 16 year old teenage girl. If you’re looking for a laugh, check out the scene here, where grandparents play ‘interference’, fielding a late-night phone call from Molly’s high school crush.
But don’t be fooled! Grandparents are not to be underestimated. They can play a vital role in cases where their grandchildren are subject to harm or neglect by their custodial parents. Often coming (thankfully) to the child’s rescue and assuming the role of care provider.
GRANDPARENT CUSTODY RIGHTS
Minnesota law affords grandparents (among others) the right to pursue custody of their grandchildren, through a process called ‘De Facto’ or ‘Interested Third Party’ Custody. While the process can be daunting, a grandparents resolve is not to be underestimated…
INTERESTED THIRD PARTY CUSTODY
Let’s focus on the latter of the two options, ‘Interested Third Party’ custody. The former ‘De Facto’ custody requires proof that a child has spent considerable, uninterrupted time living with the person. Instead, we’re going to talk about circumstances involving harm or neglect.
QUALIFYING FOR ‘THIRD PARTY CUSTODY’ STATUS
To be granted ‘third-party custody’ status, grandparent must satisfy several conditions. See Minn. Stat. §257C.03 subd. 2(a).
First, they must prove:
- (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 grandparent 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.
If grandparent alleges facts that (if proven at a trial) would satisfy one of the above criteria, grandparent is entitled to a trial. Lewis-Miller v. Ross, 710 N.W.2d 565, 570 (Minn. 2006).
- Then at trial, grandparent present evidence as follows:
- That they have not been convicted of a violent crime;
- The amount of involvement they had with the child during the parent’s absence or during the child’s lifetime;
- The amount of involvement the parent had with the child during the parent’s absence;
- The presence or involvement of other interested third parties;
- The facts and circumstances of the parent’s absence;
- The parent’s refusal to comply with any conditions for retaining custody set forth in previous court orders;
- whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence;
- Whether a sibling of the child is already In the care of the interested third party; and
- The existence of another custodian for the child.
CHILD’S BEST INTERESTS
Assuming grandparent can present evidence as to these factors above, then the analysis moves to whether it is in the child’s best interests to be in grandparent’s custody. In determining the child’s best interests, the court considers these 12 factors:
- the wishes of the parties;
- the reasonable preference of the child;
- child’s primary caretaker;
- the intimacy of the relationship between each party and the child;
- the interaction and interrelationship of the child with the parties, siblings, and any other significant persons;
- the child’s adjustment to home, school, and community;
- the length of time the child has lived in a stable, satisfactory environment;
- 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,
- the capacity and disposition of the parties to give the child love, affection, and guidance;
- (11) the child’s cultural background; and
- (12) the effect on the child of the actions of an abuser.
After a considerable amount of evidence is submitted at trial, and after giving the court time to carefully consider all of these factors, it is possible for a grandparent to be awarded custody of their grandchild.
As you can imagine, it’s a lengthy process. But, as Sam’s parent’s show us, grandparents know how to get tough when protecting their grandchildren! If you have questions about grandparent custody or visitation rights, please contact us at Beyer & Simonson.
Meet Tim Simonson
Tim has been practicing for more than twenty (20) years now, He's handled divorce, child support, child custody, third party and grandparent rights, domestic abuse, parenting time, and many other areas of family law. He always enjoys the chance to meet people and see whether he can help find solutions to their legal problems.
Contact Beyer & Simonson
If you are facing divorce and any of the divorce-related issues such as spousal maintenance, child support, child custody, property division, or domestic abuse matters, you need our experienced Minneapolis divorce attorneys to help you. Contact Beyer & Simonson in Edina, Minnesota today at (952) 303-6007.
