A Minnesota court will award custody rights to a third party (often a grandparent) when a child has been living with that third party for extended periods, without the presence of the child’s biological or custodial parent. In Minnesota, these third parties are called ‘de facto custodians’ or ‘interested third parties’. Their rights to pursue custody of a child who isn’t theirs, are codified at Minn. Stat. Chapter 257C.
When awarding custody to a third party, the court also has discretion to award parenting time rights to the child’s biological parents, in accordance with Minnesota Statutes Chapter 518. This section is where the ‘best interest’ factors, commonly applied to child custody and parenting time decisions, are codified at Minn. Stat. §518.17 subd. 1, and also where the “25% presumption”** is codified at Minn. Stat. §518.175 subd. 1(g).
But in a recent decision Hastings v. Tuinder & Hastings (A21-1671), the Minnesota Court of Appeals found the ’25% presumption’ may not apply to a parent when a third party ‘de facto’ custodian is awarded rights to a child. There, the Court declined to award the child’s father with 25% of the child’s overnight parenting time. The Court decided that the 25% presumption was ‘inoperable’ in a third party custody proceeding.
The Court reasoned that in order for a de facto custody proceeding to exist, the court must already agree that “extraordinary circumstances” exist which give rise to a third party custody proceeding, that would make the 25% presumption “inoperable”.
The presumption that a parent should have 25% of a child’s overnights in their care, is overcome by virtue of the Court deciding that ‘extraordinary circumstances’ exist to give rise to a third party custody award. The ‘extraordinary circumstances’ the court referred to, are codified at Minn. Stat. §257C.03 subds. 6 & 7.
‘Extraordinary circumstances’ can include:
- That a third party (not the parent) has been the child’s primary caretaker for most of the child’s life;
- The third party (not the parent) fostered the child’s relationships with extended family;
- The third party (not the parent) showed a willingness to continue or discontinue the child’s education and religious studies;
- The third party (not the parent) provided satisfactory and safe housing for the child;
- The biological parent hasn’t shown consistent involvement with the child;
It is well settled that Minnesota courts have broad discretion in determining parenting time. Christensen v. Healey, 913 N.W.2d 437, 443 (Minn. 2018). A de facto custody proceeding recognizes that ‘extraordinary circumstances’ exist, that would rebut any presumption that 25% parenting time in favor of the noncustodial parent serves the child’s best interests,. Accordingly, declining to consider the 25% percent presumption is within a Minnesota Court’s discretion.
The lesson from Hastings v. Tuinder is that de facto or third party custody gives the court broad discretion to award parenting time, which includes declining to consider the 25% presumption that a noncustodial parent is typically allowed. Parties to a third party custody proceeding should be mindful of this broad discretion when leaving the question of parenting time to the court.
**The 25% presumption refers to a Minnesota parenting time law, codified at Minn. Stat. §518.175 subd. 1(g) which provides that “in the absence of other evidence, there is a rebuttable presumption that a parent is entitled to receive a minimum of 25 percent of the parenting time for the child.”
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