Understanding Two Different Legal Concepts That Affect the Lives of Minnesota Families
Life can be complicated. But throughout those complications, one thing is true: Children need to be cared for in a safe, loving, stable environment. Sometimes this means a caregiver needs to go to court to seek custody or guardianship.
In this article, our legal team details what the terms guardianship and custody mean, how they are different and how they may apply in different situations. Here’s what you need to know about child guardianship law in Minnesota.
Guardianship vs. Custody in MN
Guardianship and custody both give caretakers a legal pathway to take responsibility for the care of a child. But there are some key differences:
- Guardianship is determined in probate or juvenile court. It functions to appoint someone who can step in when parents are deceased or when parental rights have been terminated.
- Child custody is a family law matter. It’s the standard legal structure for parents or third parties to physically care for and make legal decisions for a child. The key difference: In third-party custody proceedings, the parent may be unable to provide the care the child needs, but their parental rights have not yet been terminated.
Third-Party Custody Law in Minnesota
Under Minnesota Statute Section 257C.03, a person other than a parent can bring a child custody proceeding if they want to care for a child. You can request to do this care either temporarily or permanently as long as certain legal conditions are met. These proceedings are often referred to as “third-party custody” matters.
Third-party custody is an essential designation because it gives you the right to:
- Get medical care for the child.
- Enroll them in school.
- Give them a safe and stable home.
Only a court can grant someone third-party custody.
A third-party order will also include clear and enforceable guidelines about where the child will live and what parenting time the parents may have. That way, you’ll have peace of mind that the parents can’t come and take the child suddenly, and the child’s physical and emotional health is protected.
If a child custody order is in place, the caretaker may also be able to obtain child support from the parents. However, each situation is different. Many third-party custody situations arise when a parent cannot care for the child in any way, including financially.
Who Can Petition the Court for Third-Party Custody?
In order to bring a third-party custody claim, you must qualify as either a “de facto custodian” or an “interested third party.”
A de facto custodian is someone who’s been the primary caretaker of a child whose parents have not been a consistent presence in their life. The de facto custodian must have been caring for the child for:
- At least six months, if the child is under three years old.
- At least a year, if the child is three or older.
Often, de facto custodians are caring for a loved one’s child while that person struggles with addiction or other mental health issues.
An interested third party is someone who does not qualify as a de facto custodian, but who meets other legal criteria. Generally, this has to do with proving that the parent has abandoned, neglected or disregarded the child’s well-being. It often includes proving that the child would be harmed by living with the parent, like in a CHIPS case.
Child Guardianship Law in Minnesota
Legal guardianship authorizes a person to make decisions for a child (or, in some cases, an adult with a significant disability). A guardian makes crucial decisions about the child’s education, medical care, financial matters and everyday activities.
Again, the difference between guardianship vs custody in Minnesota is the circumstances: You may petition the probate court for guardianship of a child only when all legal parents have passed away or their rights have been terminated.
Generally, a court can appoint a guardian for the child until the child reaches 18. However, the appointment must be in the child’s best interests.
Who Can Petition the Court for Guardianship?
Minnesota Statute 524.5-205 outlines the process for seeking appointment as a guardian of a minor. It says that any person who is “interested in the welfare of a minor” may petition for appointment of a guardian.
This child guardianship law in Minnesota says that the petitioner also needs to:
- Be at least 18 years old.
- Have the physical and financial ability to care for the child.
- Be willing to dedicate the time and attention necessary to take care of the child.
Other Ways To Care for Children: Adoption and DOPA in Minnesota
There are other ways that caretakers can be given legal authority to care for children. These include adoption and DOPA forms.
Adoption creates a permanent legal parent-child relationship where there wasn’t one before. In an adoption, the court terminates the parents’ rights.
The adoption process can be complex, and outcomes can be hard to predict. The process is set out by the Minnesota Rules of Adoption Procedure. If you’re interested in adoption, it’s best to talk with an experienced adoption attorney.
Another option is called Delegation of Parental Authority (DOPA). This document is created by a parent when they need someone to care for their child temporarily. It gives that person the ability to make decisions about the child’s care (like taking them to the doctor or excusing them from school when sick).
A DOPA form isn’t filed with the court, and the parent can stop it at any time. It’s a good idea to have a parent create one if they may leave their child in your care for a long time, such as when they’re:
- Going on a long trip.
- At risk of going to jail.
- At risk of deportation.
Questions About Guardianship vs. Custody in MN? Get Answers.
Family law can be complex. It’s often difficult to know which option is best in your situation. The best way to learn more is to schedule a confidential case review with a family law attorney who knows child guardianship law in Minnesota.
To get started, talk with a lawyer at White & Associates in Otsego. We’ll listen carefully to your case and give you actionable steps you can take. Contact us or call us at 763-241-0477.
