By Sarah J. Hewitt  and Gina Giambruno

When family relationships become strained, it can be confusing and painful to navigate contact with grandchildren. Minnesota grandparents’ rights are often misunderstood. Many people assume grandparents have an automatic right to spend time with their grandchildren, but there is no inherent right to visitation in Minnesota. Grandparents—and other nonparents in certain circumstances—have the right to ask a court for visitation, but they must meet specific statutory criteria and a heightened evidentiary burden before a court will grant their request over a parent’s opposition.

Minnesota’s Statute on Grandparent and Third-Party Visitation

Under Minnesota Statutes Section 257C.08, a grandparent or great-grandparent may petition for visitation only in defined circumstances, including:

• When the child’s parent (specifically the grandparent’s child or grandchild) is deceased.
• During or after a family court proceeding involving the child, such as a divorce, legal separation, annulment, custody, or parentage proceeding.
• After the child lived with the grandparent or great-grandparent for 12 months or more and was then removed from the shared home by a parent.

The same statute permits certain nonparents (also called “third parties”) to seek visitation, even if they are not related to the child. To qualify, however, a third party must show:

• The child resided with the third party for at least two years and no longer lives with that person; and
• The child and the third party developed emotional ties amounting to a parent–child relationship.

These timing and relationship requirements are only the threshold that allow a non-parent the right to request visitation. If the requirements are not met, a court must deny the request for court-ordered visitation.

Best Interests and Noninterference with the Parent–Child Relationship

Meeting the statute’s threshold requirements is not enough to guarantee visitation will be ordered by the court. The petitioning grandparent (or other third party) must also prove:

1. The requested visitation is in the child’s best interests; and
2. The requested visitation will not interfere with the parent–child relationship(s).

Minnesota courts evaluate children’s best interests by weighing twelve (non-exclusive) factors set by the Legislature, including details about the child’s needs, the caregiving history, and other relevant considerations. A child’s preference may be considered, depending on the child’s age and maturity.

Whether visitation would “interfere” with a parent-child relationship depends on family dynamics and the practical effect visitation would have on the child and the custodial parent’s relationship with the child. Ordinary disagreement or litigation-related friction does not typically, by itself, establish interference; courts focus on whether the conflict undermines the parent–child relationship. For example, visitation requests have been denied or overturned by Minnesota courts on the basis of interference for each of the following reasons:

• the visitation schedule required too much time away from the child’s parents;
• the requesting grandparent refused to respect a parent’s safety concerns, and the child showed behavioral problems after visits; and
• the requesting grandparent previously requested custody of one child and threatened to “keep searching for a reason” to take the children away from a parent.

Heightened Burden of Proof

Grandparent and third-party visitation petitions are subject to a heightened “clear and convincing evidence” standard when the court weighs conflicting evidence. The Minnesota Supreme Court adopted this standard in the 2007 case of Sohoo v. Johnson, following the U.S. Supreme Court’s ruling that courts must give special weight to fit custodial parents’ decisions about their children. In practice, this makes it much more difficult for non-parents to prevail on a visitation request than it is for parents to be awarded visitation in a divorce, custody, or paternity case.

Practical Considerations

• No automatic right: Visitation must be ordered by a court; there is no automatic rights for grandparents, great-grandparents, or other third parties to have visitation or even contact with a child.
• Procedural complexity: Section 257C.08 has multiple, interlocking requirements that must be proven with clear and convincing evidence.
• Forms and proof: There is currently no state court form for requesting third-party visitation, which makes it more difficult to bring these requests without a lawyer’s guidance.
• Case-specific outcomes: Success often turns on detailed facts about the child’s history with the third party, the current parenting arrangement, and how a proposed visitation plan might affect the parent–child relationship.

How Henson Efron Can Help

Whether you are seeking visitation or opposing a petition, experienced counsel is a critical factor. If you have questions about grandparent or third-party visitation, we are ready to help you understand your options and advocate for your goals. Contact Henson Efron’s family law team to discuss your situation.

The purpose of this article is merely to provide general information and should not be construed as legal advice.