Grandparent custody, not to be confused with grandparent visitation, refers to a grandparent who is attempting to get legal custody of a child or children. This is notable as, if successful, the grandparent(s) will have custody of the child, rather than one of the child’s parents.
Grandparent custody falls under the heading “3rd party custody”. Minnesota’s 3rd party custody statute is 257C.
Grandparent Custody – Two Ways
There are two bases that a grandparent may use to establish custody by the statute. The first is by being a “de facto custodian”. This is an individual who has been the primary caretaker of the child for either:
(1) six months or more, which need not be consecutive, if the child is under three years of age; or
(2) one year or more, which need not be consecutive, if the child is three years of age or older.
And this time is without demonstrated consistent participation by a parent. So for example, if the parent is living with their child and the grandparent at the same time, and that parent is providing some care, the statute would not apply.
The second way a grandparent may establish custody is by being an “interested 3rd party”. By default, this cannot be a de facto custodian. Instead, this is someone who can show one of the following:
(1) show by clear and convincing evidence that one of the following factors exist:
(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 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 both; or
(iii) other extraordinary circumstances;
(2) prove by a preponderance of the evidence that it is in the best interests of the child to be in the custody of the interested third party; and
(3) show by clear and convincing evidence that granting the petition would not violate section 518.179, subdivision 1a.
The statute also outlines what factors a court must consider for this analysis. This option is primarily designed for situations in which a child is being neglected or otherwise abandoned and gives the opportunity for someone else to step in to care for the child.