Third-Party Custody

Presenters: Emily K. Cooper and Tracy L. ReidCooper & Reid, LLC

Where are the children?

Informal - children living with grandparents or other relative households

Formal - juvenile proceedings and foster care

Statistics

Children not living with their parents - MN

Statistics

Racial make-up of third party caregivers

Statistics

34% of grandparents live in households without the parents present;

76% of relatives are under the age of 70;

10% live in poverty

Issues for third-party caregivers

Own child cannot parent

Fear for grandchild

Child support

Coping

Grief, loss, anger, pain, resentment, stress, insecurity

Issues for third-party caregivers

Who to talk to/where to get help

Tired

Parenting doubts

Different world

Stigma

Social isolation

Attitudes towards third-party

Grandparents - “will I be judged because my child can’t parent”

“the apple doesn’t fall far from the tree”

Third-party custody - MN Law

De facto custodian (257C)

Interested third party (257C)

Delegation of parental rights

Standby custodian (257B)

Custody consent decree (257C.07)

Adoption

Private CHIPS Petition or Foster Care/Juvenile Proceeding

Guardianship

De Facto Custodian

257C.01, subd 2

Primary caretaker of child

24 months immediately preceding petition

Child resided with individual

Without parent present

Lack of demonstrated consistent participation by a parent

De Facto Custodian

Child under 3 years old

6 months or more

Child 3 years or older

One year or more

De Facto Custodian

Burden of proof - 257C.03, subd 6

Clear and convincing evidence (of factors in 257C.01, subd 2)

Preponderance of the evidence that is it is in the best interests of child to be in custody of the de facto custodian

Interested Third Party

257C.01, subd 3

Person who is not a de facto custodian

Can prove at least one of the factors in Section 257C.03, subd 7, para (a) is met.

Not an interested 3rd party if...

Possession of child is through

Custody consent decree (257C.07)

Court order of voluntary placement (260C-child protection)

Adoption (259)

Interested 3rd-Party

Burden of proof (257C.03, subd 7(a))

Clear and convincing evidence that

parent has abandoned, neglected, exhibited disregard - child will be harmed by living with parent; or

Physical or emotional danger to the child such that placement with third party takes priority over preserving parent-child relationship; or

Other extraordinary circumstances.

Interested Third-Party

Lewis-Miller v Ross, 710 NW2d 565

Two step process

1. Do allegations in petition satisfy criteria of 257C.03, subd 7 (a)? Get an evidentiary hearing.

2. At evidentiary hearing, party seeking custody must prove best interests by preponderance of the evidence and one of the three child-endangerment factors by clear and convincing evidence.

Procedure

For de facto and interested third-party custody matters

Summons and Petition

Personal Service

Hearing

Delegation of Parental Rights

Minn. Stat. 524.5-211

Simple form

Up to one year (temporary)

Can be revoked

Does not include consent for adoption or marriage of child

Standby Custodian (257B)

Custodian in event of parent’s incapacity, death, debilitation or consent of parent

Requires notice to (and possibly approval of) other parent, if known

Takes effect upon a “triggering event”

Statute also allows for “temporary custodian” designation for up to 24 months

Custody Consent Decree

Minn. Stat. 257C.07

Parent can transfer custody to another person

Court can approve if the transfer is in the best interests of child and all parties consent and understand

Adoption

Complete transfer of parental rights and responsibilities.

CHIPS Petitions

Private or commenced by county/state

Usually involves child protection and can involve placement of child in foster care

For 3rd-party caregivers, private CHIPS action or report of concerns about child to social services may be best course of action

CHIPS Petition cont.

Relative caregiver of child can be designated a foster care once social services involved.

Eligible for foster care payments

If relative, eligible for Relative Custody Assistance (RCA funds)

Must accept transfer of permanent legal and physical custody to relative rather than termination of parental rights.

TPLPC advantages

Birth parent does not lose all legal rights

Child support order continues

Birth parent can access information

Birth parent can petition to regain custody

Inheritance through birth family

TPLPC advantages

Relative can obtain TANF (temp. assistance for needy families) grants

Relative custody assistance

Medical assistance for child

Guardianship

Minn. Stat. 524.05-201-211

Can become guardian through parental appointment, designation as standby guardian through 257B, upon appointment by court or by delegation.

Continues until terminated

Organizations

MN Kinship Caregivers Association

Grandkidsandme

Raising Our Children’s Kids

MN Dept of Human Services

Presenters

Emily K. Cooper - (612) 568-4529

Tracy L. Reid - (612) 568-5529