Third Party Child Custody Without Parental Consent
For a third party to obtain custody of a child without the consent of the child's parents, the third party must prove to be either a "de facto custodian" or an "interested third party." Additionally, the court must find that the third party's custody of the child would be in the child's best interest.
De Facto Custodian
A "de facto custodian" is an individual who has been the primary caretaker of 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.
Interested Third Party
An "interested third party" is an individual who is not a de facto custodian but who can prove by clear and convincing evidence at least one of the factors outlined below:
- 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;
- 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
- other extraordinary circumstances.
In determining a Interested Third Party petition for custody, the Court must look at the following factors as well:
- the amount of involvement the interested third party 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 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
- whether there is a standby custody designation.
Just like in a “regular” custody matter, under Minnesota law, the court must determine the best interests of the child prior to making a custody determination.
You can file for custody as an interested third party. You will want to have a family lawyer help you because this is not an easy thing to do. I never recommend for third party or grandparent custody cases to be done without lawyers. It's just too difficult to win because you need to know what has to be shown.
I am happy to look for lawyers in your area if you'd like. Just let me know if you want me to and I'd need to know where to look -- the larger city the better. Minneapolis?