Family Law Updates

There are a variety of reasons why a child may be in the custody of a third party and not with their parents. This blog will focus on why and how a third party might get custody or visitation rights under Minnesota law. In 2002, the Minnesota legislature enacted a comprehensive statute covering third party custody and visitation. Minn. Stat. §257C. First, to seek custody as a third party, a person must qualify under the Minn. Stat. §257C. A person seeking visitation rights under Minn. Stat. §257C must qualify under Minn. Stat. §257C.08 that governs rights of visitation to unmarried persons. Determining third party custody and visitation is based on the facts of a situation.

Wallin v. Wallin, 187 N.W.2d 627 (Minn. 1971) is a major case in determining third party custody in Minnesota. In this a case where the biological parents were having marital difficulties and gave their daughter to the paternal grandparents. Later after the parents had divorced and the mother remarried. The mother with her new husband wanted custody of the child. At the trial court level, the grandparents were to have custody. The court of appeals remanded the case to the trial court to decide if after hearing all of the facts if the mother had abandoned her child or if she was unfit to care for the child. The case went up to the Supreme Court of Minnesota where the court adopted a two-pronged approach to determining custody disputes between a biological parent and a third party:

• Biological parents are entitled to the custody of their children unless it clearly appears that they are unfit or have abandoned their right to custody, or unless there are some extraordinary circumstances that would require that they be deprived of custody; and
• The best interest standard of the child is the primary test to be applied in awarding custody

Some courts have found that these two prongs are at odds with each other. However, the Supreme Court has maintained that there is a presumption for custody to remain with a fit biological parent. The person seeking custody in that situation has the burden of disproving the presumption. Durkin v. Hinich, 442 N.W.2d 148 (Minn. 1989). The third party must show that there has been “neglect, abandonment, incapacity, moral delinquency, instability of character or inability to furnish the child with needed care, … or unless it has been established that such custody otherwise would not be in the best welfare and interest of the child.” Durkin v. Hinich, 442 N.W.2d 148, 153 (Minn. 1989) (quoting Wallin v. Wallin, 290 Minn. 261, 266, 187 N.W.2d 627, 630 (1971)).

In re N.A.K., 649 N.W.2d 166 (Minn. 2002), the Minnesota Supreme Court acknowledged that a biological parent is entitled to custody absent “some extraordinary circumstances which would require that [he or] she be deprived of custody.” 649 N.W.2d 166, 174 (Minn. 2002). The Supreme Court found that the trial court was correct in applying to the best interest standard to determining the custody of the child. However, the trial court erred because it did not base its decision on any finding that there were extraordinary circumstances of grave or weighty nature to justify denying the father custody.

In the most recent case regarding third party visitation, the Minnesota Supreme Court in Soohoo v. Johnson, 731 N.W.2d 815 (Minn. 2007) determined that Minn. Stat. §257C.08, subd. 4 was facially constitutional because it was limited to those who were eligible for third party visitation, whether the visitation was in the best interest of the child, and whether the award of visitation would not interfere with the custodial parent’s relationship with the child. The Supreme Court found that the trial court had correctly determined that Johnson had lived with the children as a parent for over two years and that there was a parent-child relationship between her and the children, and that it was in the children’s best interest that there was visitation.

If you have Divorce and Family Law questions, please contact the Family Law experts at Minneapolis based Lake Harriet Law Office at 612-750-4843.