Other family members and visitation with a child after a parent dies
You might have read our previous post about grandparents’ visitation rights: Grandparent Rights A quick recap: Minnesota law recognizes that there are times when a parent might try to deny grandparents visitation with their grandchild, and provides a way for grandparents to obtain visitation rights through court if this happens. Okay, you think, what about other relatives? Aunts, uncles, former step-parents, etc. might have just as close a relationship with the child as grandparents do.
Earlier this week, though, the Minnesota Supreme Court decided a case where it found that an aunt had no right to independent visitation with her niece. The niece’s mother was the aunt’s sister. The mother had recently died, leaving the niece with only her father as a parent. After the mother’s death, the family moved to Minnesota and the father, for whatever reason, refused to allow the aunt to visit with the child independently (the father did, however, allow the aunt to visit with the child while a grandparent was present). The aunt petitioned the court for visitation rights.
The court found that the state law providing for grandparent visitation didn’t apply because, of course, the aunt was not a grandparent of the child. The court basically said that the state didn’t just “forget” to include aunts/uncles/other relatives when it was writing the law. There is a separate law that allows someone with whom the child resided for 2 or more years to get visitation rights, but in this case, that law didn’t apply because the niece hadn’t lived with the aunt for 2 or more years, and even if she had, the aunt didn’t provide the court with evidence of an emotional tie between the aunt and the niece that was like a parental relationship (in loco parentis). Finally, the court found that there was no general right of aunts and uncles to have visitation with their nieces and nephews.
So what’s the moral of the story? Minnesota courts don’t appear to be inclined to award visitation rights, over the objection of a parent, on a broad scale beyond what is specifically provided for by law. If you are a non-grandparent seeking visitation rights, you will almost certainly need to show that you had an in loco parentis relationship with the child and that that relationship lasted for 2 or more years. Talk with your lawyer to determine what evidence would best show this was the case in your situation. Another option might be to attack the fitness of the child’s parent, saying that the parent is unfit to be a parent and that therefore their objection to your visitation should be given less weight.
Rosengren, Kohlmeyer & Hagen Law Office Chtd.
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