Grandparents Rights in Minnesota

Courts Must Consider Two Factors When Deciding a Case

A Minnesotan grandparent and grandchild
Photo © Holloway/Getty Images

Grandparents may petition for visitation rights in Minnesota in three separate situations. In all three situations, visitation may be awarded if the court finds that such contact is in the best interests of the child and will not interfere with the relationship between parent and child.

Visitation Suits in Three Situations

First, if a child's parent is deceased, the parent's parents may seek visitation.

In addition to the two factors to be considered above, the court is also directed to consider the amount of contact between the grandparents and grandchild before the petition for visitation. (Minnesota Statute 257C.08, Subd. 1)

Second, Visitation may be sought during or after proceedings dealing with divorce, separation, custody, annulment and paternity. Again, the court is instructed to consider the amount of grandparent-grandchild contact. One additional provision prohibits grandparents who have lost a visitation suit from filing another suit for six months. (Minnesota Statute 257C.08, Subd. 2)

Third, a petition for visitation rights can be filed independently of one of the preceding actions if the grandchild has lived with the grandparent for at least a year and was removed from the grandparent's home by the parent. (Minnesota Statute 257C.08, Subd. 3)

Great-grandparents are expressly mentioned in the statutes as well.

If the Parents of the Grandchild Are Unmarried

Prior to 2013, if a child's parents were unmarried, the grandparents were on shaky legal ground, as most of the proceedings listed in Subd. 2 (divorce, separation, custody and annulment) only apply to married parents. Grandparents could sue for visitation rights as part of a paternity hearing, but if a child's paternity had never been tried in court, grandparents were in limbo.

In the 2013 Minnesota Supreme Court case of Christianson v. Henke, the courts decided that the signing of a Recognition of Parentage (ROP) could count as a court proceeding. The ROP is a document signed by unmarried parents who were unmarried at the time of the birth of a child who wish to document their relationship to the child. This decision opened the door for more grandparents to file for visitation.

Visitation After Adoption

In the state of Minnesota, adoption cuts off visitation rights unless the adopting party is a stepparent. In the case of a child adopted by a stepparent, a grandparent is able to sue for visitation if his or her child who was the parent of the child is deceased or has given up parental rights. Again, the court is directed to consider the best interests of the child and the impact on the parent-child relationship. One additional provision is that failure to comply with court-ordered visitation does not affect the legal status of the adoption.

Constitutional Challenges

In 2002 the U.S. Supreme Court overturned Washington state's statutes for third-party visitation. It stated that the law was "breathtakingly broad" and that it did not give sufficient weight to the wishes of the parents.

In a suit for grandparent visitation, the court said, the grandparents bear the burden of proof.

Following Troxel, many other states had their laws challenged in court or took action preemptively to be sure that their laws were constitutional.

Minnesota's laws haven't faced serious challenge, although one small provision was declared unconstitutional in the case of Soohoo v. Johnson (2007). The relevant section reads, "The court may not deny visitation rights under this section based on allegations that the visitation rights would interfere with the relationship between the custodial parent and the child unless after a hearing the court determines by a preponderance of the evidence that interference would occur." In other words, the parents must prove that visitation would negatively impact the parent-child relationship.

 This part of the law is unconstitutional because it wrongfully places the burden of proof on the parents.

How Much Visitation?

Although Minnesota law does not specify how much visitation grandparents should be given, a 2011 case sheds some light on that issue. The case In Re: The Minor Child C. D. G. D. concerns a grandmother who sought custody of a grandchild after her daughter, the child's mother, was murdered. When the court awarded custody instead to the child's father, she sought and was granted extensive visitation. On appeal, the grandmother's visitation was found to be inappropriately equal to what might be given a noncustodial parent. The court instead awarded the grandmother what the father had suggested -- one overnight visit per month plus some time on holidays.

An Important Reversal

Appeals courts seldom overturn the decisions of lower courts when those decisions are rightly based on the best interests of the child. In a 2015 case, however, the Minnesota Court of Appeals did just that. In the case of Hansen v. Hanson, a father inherited custody of his two children after they were taken away from the mother. The father, who had spent time on the street and in jail, moved in with his mother, who took over most of the care of the children. Some years later, the father developed another relationship, took his children and moved out, subsequently cutting off his mother's access to the children. The lower court accepted his allegations that contact with his mother adversely affected his relationship with his children and led to behavioral problems.

The appeals court overturned that decision, citing services rendered by the grandmother over a period of years. It found that the father's negative allegations were insufficiently supported by evidence. The court also referred to the father's sworn statements that his mother was a good grandmother and that the children in question loved her. 

It's true that one case doesn't necessarily indicate a trend, but perhaps there is reason to be hopeful about the future of grandparents' rights in Minnesota.