Third-party custody is when a third person is given custody of the child/children. Third-party custody typically occurs when the biological parents do not want custody of the child/children or the biological parents are incapable of caring for the child/children.
In some instances, parents agree to allow an adult other than themselves to raise their child or children. These situations where custody is awarded via an agreement between the parties can also be part of the basis for establishing third-party custody. Voluntary agreements for third-party custody often leave the court with jurisdiction over the matter so either parent can petition the Court to restore custody to them in the future.
Third-party custody by order of a Court
Custody may be awarded by a family Court to a third party (who is neither of the biological parents) to raise the child or children. This generally happens when the Courts finds that the parents are unfit to raise the child or children. The basis for finding parents unfit and giving custody to a third party include: in cases of child abuse or neglect, substance abuse by the parent/s, abandonment of the child/children, inability to provide for or care for the child, or inability to adequately raise or protect the child.
A parent or parents will be found unfit if the Court deems that it is contrary to the best interests of the child or children to be allowed to remain in the custody of the parent/s due to any one of the above factors or factors similar or adding up to the above.
If a parent or parents are found to be unfit and a suitable third-party petitions for custody of the child or children, the court will consider the petition by using the best interests of the child standard established under Minnesota statue 518.17 subd.1. The Court retains authority over the case and may later consider a petition by the parents to regain custody if circumstances significantly change.
Special Immigrant Juvenile Status (SIJS)
A Special Immigrant Juvenile is an unmarried person under the age of twenty-one who is in the United States; and who has been declared dependent on a juvenile court located in the United States or whom a juvenile court has legally committed to, or placed in the custody of, an agency or department of a State or of an individual or entity appointed by a State or juvenile court; and whose reunification with one or both parents is not viable due to abuse, neglect, abandonment or a similar basis found in state law. 8 U.S.C. § 1101(a)(27)(J).
With respect to the special juvenile status and family courts, an important provision of the statute is the reference to the placement of the child in the custody of “an individual” as provided the above federal statute. While this statute helps place juveniles in the custody of an agency, entity or individual (third-party) approved by the family court, it is most significant for special juveniles who happen to be unauthorized immigrants. The third-party custodian who petitions to be awarded custody of the child/children, who are in the US illegally, must make sure that the Court makes certain factual findings that allow the custodian the ability to continue to care for the child/children without negative immigration consequences, like the deportation of the child. To avoid such consequence, the petitioning custodian must be a US citizen and petition for special immigrant juvenile status for the child once third-party custody is granted.
Eligibility and Requirements
The requisite findings that make it possible for the third-party custodian to petition the immigration service for Special Immigrant Juvenile Status (SIJS), legal status, for the child or children, are detailed in the SIJS regulations. For a child without legal status who has been given over to a third-party custodian to be eligible to apply for SIJS, the Juvenile Court or State Court must first make several findings of fact. Under the law, the Juvenile or State Court does not make any immigration decisions, but rather, makes factual findings concerning the child. The Juvenile or State Court –not immigration– makes these findings because these are the courts with both knowledge and skill in juvenile matters. The required findings include:
- That the child is dependent upon the juvenile court or has been legally placed under the custody of an individual (third-party);
- That the child’s reunification with one or both parents is not viable due to abuse, neglect, abandonment or similar basis under state law; and
- It is not in the “best interest” of the child to be returned to his parents’ previous country of nationality or country of last habitual residence.
A prudent third-party custodian should argue to the family Court that the lack of security for the child/children, neglect, or desertion of the child that leads to the child’s or children’s illegal crossing or entry alone into the United States is akin to abandonment under the law. While the above findings by the family court will not entitle the child to be awarded residency in the U.S. by the immigration service, they are a prerequisite for applying to the immigration service for any legal status. Without an order from the Family Court with the above findings, the child cannot petition the immigration service for legal status.
What to Do
If you find yourself involved in a third-party custody case or a third-party custody case with SIJS implications, contact an experienced family lawyer immediately, especially if the child is not a U.S. citizen and you are a U.S. citizen. A third-party custody award may provide immigration options for the child.
If you have questions about a third-party custody case, its immigration consequences, or any other issues in this article, contact an experienced family law attorney. Consult a family lawyer to determine what process is relevant to your particular case or situation or for any of the issues raised in this article.
Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in family law.