Minn. Stat. § 257C.03

Where to file your Third-Party Case

According to Minn. Stat. § 257C.03, subd. 1 (revisor.mn.gov/statutes/cite/257C.03), you must file your third-party custody case in the county where the child permanently lives, or where the child is found, or where there is an earlier court order for custody of the child.

Petition for 3rd party custody

• When preparing a petition for third party custody, it must meet all 15 statutory conditions outlined in Minn. Stat. § 257C.03, subd. 2.
• The Petitioner must also show they are either an interested third party or de facto custodian in order to have standing.
• The Petition must also make allegations which, if true, would allow the district court to grant the relief the party seeks.
  • In determining whether a petitioner has alleged a prima facie case for third-party custody, a district court accepts the allegations set forth in the petition and the moving party’s affidavits as true and disregards contrary allegations, though a district court may consider allegations that explain or contextualize, but do not contradict, a petitioner’s allegations. While a district court is required to accept as true the allegations of a moving party, a movant does not allege a prima facie case if the allegations are merely conclusory, too vague to support a finding necessary to grant relief, or unsupported by any specific, credible evidence.

De Facto Custodian vs. Interest Third Party

Within the Petition for 3rd Party Custody, it must set forth allegations that a petitioner fits the definition of a de facto custodian or an interested third party.

Definition of “De Facto Custodian”

1. If the child is under three years old, you may qualify as a “de facto custodian” if all the following statements are true:
   1. You have been the primary caretaker to the child while the child was living in your home; and
   2. The child lived with you for at least six (6) out of the last twenty-four (24) months. The months do not have to be consecutive (in a row). (For example, the time can be one month with you, two weeks not with you, two weeks with you—just so the total amount of time is six (6) out of the last twenty-four (24) months); and
   3. During this time, neither parent was residing in your home, and the parents have not consistently participated in the child’s life
2. If the child is more than three years old, you may qualify as a “de facto custodian” if all the following statements are true:
   1. You have been the primary caretaker to the child while the child was living in your home; and
   2. The child lived with you for at least twelve (12) out of the last twenty-four (24) months. The months do not have to be consecutive (in a row). The time can be, for example, one month with you, two weeks not with you, two weeks with you—just so the total amount of time is twelve (12) out of the last twenty-four (24) months; and
   3. During this time, neither parent was residing in your home, and the parents have not consistently participated in the child’s life

De Facto Custodians’ burden to be awarded Third party custody will be easier to meet than that of an interested third party. (see evidentiary hearing below). 

Definition of “Interested Third Party”

You may qualify as an “interested third party” if you are not a de facto custodian, and one or more of the following statements is true:

1. The parents have abandoned, neglected, or otherwise show a disregard for the child’s well-being and the child would be harmed by living with either parent; or
2. The child is in physical or emotional danger if the child lives with either parent; or
3. Other grave and weighty reasons make it necessary for the child to live with you and for you to have legal custody.

Interested third parties’ burden to be awarded Third party custody will be harder to meet than that of a defacto custodian (see evidentiary hearing below). 

Third-party custody proceedings

Third-party custody proceedings under chapter 257C occur in two stages.

First Stage (Prima Facie Case): At the first stage, a petitioner must allege a prima facie case by submitting a valid petition and supporting affidavits containing factual allegations that meet the statutory requirements which, if true, would allow the district court to grant the petitioner third-party custody as a de facto custodian or an interested third party.  At the prima-facie-case stage of the proceeding, a party seeking relief need not establish anything.

• • If prima face case fails:  if a petition and supporting affidavits fail to set forth a prima face case, dismissal of the petition is warranted. See Minn. Stat. § 257C.03, subd. 8(a) (requiring district court to dismiss third-party custody petition if it finds that the petitioner does not satisfy the statutory criteria for obtaining custodial rights as a de facto custodian or interested third party);

Second Stage (Evidentiary Hearing): If a petitioner makes such a prima facie case for third-party custody as outlined above, the district court must set an evidentiary hearing on the petition. The burden and what must be proven at the evidentiary hearing depends on if the petition is indicating they are a de facto custodian or an interested third party

Evidentiary Hearing:

If a petitioner makes such a prima facie case for third-party custody as outlined above, the district court must set an evidentiary hearing on the petition. The burden and what must be proven at the evidentiary hearing depends on if the petition is indicating they are a de facto custodian or an interested third party

To be awarded third-party custody as de facto custodians, petitioners must: (TLDR: best interest, primary caregiver for 24 months, parent not demonstrated consistent participation)

• (1) show by “clear and convincing evidence” that they satisfy the provisions of section 257C.01, subdivision 2; and
  • 257C.01, subdivision 2: the primary caretaker for 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 . . . one year or more, which need not be consecutive, if the child is three years of age or older.
    • Minn. Stat. § 257C.01, subd. 2(a)(2). And a “lack of demonstrated consistent participation” is the refusal or neglect to comply with the duties imposed upon the parent by the parent-child relationship, including, but not limited to, providing the child necessary food, clothing, shelter, health care, education, creating a nurturing and consistent relationship, and other care and control necessary for the child’s physical, mental, or emotional health and development. Id., subd. 2(c).
• (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 de facto custodian[s].” Minn. Stat. § 257C.03, subd. 6(a).

A district court must consider the following factors in determining a parent’s lack of demonstrated consistent participation:

1. the intent of the parent or parents in placing the child with the de facto custodian;
2. the amount of involvement the parent had with the child during the parent’s absence;
3. the facts and circumstances of the parent’s absence;
4. the parent’s refusal to comply with conditions for retaining custody set forth in previous court orders;
5. whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence; and
6. whether a sibling of the child is already in the petitioner’s care.
   1. Minn. Stat. § 257C.03, subd. 6(b).

 

To be awarded third-party custody interested third parties, petitioners must:

• (1) show by clear and convincing evidence that one of three child-endangerment factors in Minn. Stat. § 257C.03, subd. 7(a)(1) is met; The three child-endangerment factors are**:
  • (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 [exist].
• (2) by a preponderance of the evidence that placement with petitioners is in the best interests of the child; and
• (3) by clear and convincing evidence that petitioners have not been convicted of a crime listed in Minn. Stat. § 518.179 (2024) (collectively, “subdivision 7(a) requirements”). Minn. Stat. § 257C.03, subd. 7(a).

**While Minn. Stat. § 257C.01, subd. 3, provides that an “interested third party” is an individual who can prove that “at least one of the factors in section 257C.03, subdivision 7, paragraph (a), is met,” we read this requirement to mean that petitioners seeking custody under chapter 257C as interested third parties set forth the jurisdictional basis for a petition by alleging that at least one child-endangerment factor is met, in addition to the other subdivision 7(a) requirements.