Two Types of Grandparent Rights
There are two kinds of cases that fall under the grandparents rights umbrella:
Grandparent visitation refers to a grandparent getting Court-ordered time, also known as visitation, with a child.
Since parents with parenting time rights can generally let whoever they want visit their children, this is often not an issue.
However, a typical grandparent visitation case occurs when one parent dies and the remaining parent has friction with his or her in-laws.
Without a visitation order, a parent has no legal obligation to allow a grandparent to visit his or her child. In order to deal with this difficult situation, grandparents have the option of using the legal system to pursue grandparent visitation.
“How Can I See my Grandchildren?”
To establish visitation, a grandparent needs to show:
- Visitation with the grandparent is in the best interests of the child, and
- Visitation with the grandparent would not interfere with the parent-child relationship
A grandparent visitation proceeding does not give the grandparents any rights relating to the child other than the right to have the child visit with them. If grandparents want decision-making rights with regard to the child, they would have to try for custody of the child.
Third Party Custody
Third party custody refers to a grandparent getting Court-ordered legal and/or physical custody of a grandchild. A third party custody proceeding establishes this.
More generally, third party custody arises when someone other than the child’s parent has legal and/or physical custody of the child. It doesn’t necessarily have to be a grandparent.
How Do I Get Custody of my Grandchild?
There are two ways to bring a 3rd party custody case:
1. As a De Facto Custodian, or
2. As an Interested 3rd Party
The petitioner, in this case, a grandparent, must establish that he or she is either a De Facto Custodian or an Interested 3rd Party before a court can decide the custody issue.
Showing You’re a De Facto Custodian
A De Facto Custodian must establish, by clear and convincing evidence that:
1. He or she has been the child’s primary caregiver, and
2. If the child is under 3, that the child has resided with the grandparent as cargiver for at least 6 months, or if the child is older than 3, that the child has resided with the grandparent as caregiver for at least 1 year, and
3. The parent has refused or neglected to comply with the duties of the parent-child relationship, like providing food, clothing, shelter, education and promoting the child’s physical, mental, and emotional health.
Showing You’re an Interested 3rd Party
An Interested 3rd Party must establish, by clear and convincing evidence that:
1. The parent has abandoned, neglected, or exhibited disregard for the child’s well-being to the point that the child would be harmed by living with the parent
2. Physical or emotional danger to the child exceeds the desire to maintain the parent-child relationship or
3. Other extraordinary circumstances exist.
Then, and only when a grandparent has established him/herself as a De Facto Custodian or Interested 3rd Party, can the court decide whether a custody change is in the best interests of the child based on the statutory factors.
Grandparent Rights at Court
In Minnesota, grandparent rights are not equal as parent rights. Parents have Constitutionally protected parenting rights. In fact, most grandparents hire a family law attorney because of this disadvantage.
In addition, navigating a 3rd party custody or visitation situation requires careful attention to the facts of the situation, and following proper procedure to ensure that parental rights are respected while promoting what’s in the best interests of the child.
For other divorce or family law questions, please consult the list to the left or the FAQ page. If you’re interested in retaining an attorney to help you, please feel free to contact my office for a consultation using the contact information on the left or the contact form on the Majeski Law home page.