Maci Burke*

Third-party visitation rights are statutory provisions that recognize  nonparents have “an interest in maintaining a relationship with a child with whom they have formed a connection.”^[1] Courts have been reluctant to grant third-party visitation rights following the Supreme Court decision in Troxel v. Granville, which effectively held fit parents must be granted some deference under the Fourteenth Amendment to make decisions concerning the care, custody, and control of their children.^[2] However, as modern families have evolved, courts have generally become more lenient. This has unlocked the door for unmarried same-sex couples who share children but failed to establish legal parentage before separation to attempt to utilize third-party visitation rights to maintain relationships with non-biological children.^[3]

 

Whether such a person can successfully utilize third-party visitation rights hinges on state law. Third-party visitation laws vary in stringency by state; some states—such as North Dakota—^[4]have expanded third-party visitation statutes to apply to stepparents, while other states—like Minnesota—have vague statutes and case law that give non-biological parents no certainty.^[5]

 

Minnesota law permits a person who has resided in a household with an unmarried minor “for two years or more and no longer resides with the person . . . [to] petition the district court for an order granting the person reasonable visitation rights to the child during the child’s minority.”^[6] In determining whether third-party visitation rights apply, Minnesota courts must consider the following factors: “(1) visitation rights would be in the best interests of the child; (2) the petitioner and child had established emotional ties creating a parent and child relationship; and (3) visitation rights would not interfere with the relationship between the custodial parent and the child.”^[7] This is one of Chapter 257C’s “very stringent standing requirements that must be met before a non-legal parent can file a petition or motion for custody or visitation.”^[8] And “[a]s a result . . . unmarried same-sex partners who never established legal parentage before the family breakup are often left without any legal recourse to establish custody and visitation rights when their relationships end.”^[9] That being said, the Minnesota Court of Appeals recently indicated its willingness to expand its interpretation of third-party visitation rights.^[10]

 

In 2019, the Minnesota Court of Appeals released an unpublished opinion, In re Custody of N.S.V. (“N.S.V.”), which upheld the application of third-party visitation rights for an unmarried, non-biological parent formerly in a same-sex relationship with the biological parent.^[11] Terri Ann Bischoff and Linda J. Vetter were in a romantic relationship from about 2002 to 2010, and Vetter gave birth to N.S.V. in 2004 and L.J.V. and E.T.V. in 2007.^[12] Vetter and Bischoff lived together and held themselves out as the children’s parents.^[13] After Vetter and Bischoff split in 2010, they maintained child-support payments and parenting-time schedules until 2015.^[14] Bishchoff commenced this action in 2015 after Vetter requested that Bischoff “keep away from her children.”^[15] The Court affirmed the District Court’s denial of third-party custody to Bischoff but granted third-party visitation rights.^[16]

 

What does N.S.V. mean practically? Not much. The expansion of third-party visitation rights to unmarried same-sex couples indicates a shift in the Court’s interpretation of the statute, but as aforementioned, the opinion was unpublished, and therefore, it “must not be cited as precedent, except as law of the case, res judicata, or collateral estoppel.”^[17] Thus, non-biological parents still face these proceedings with uncertainty, but N.S.V. indicates that parties may have some wiggle room where a sympathetic judge can try to force a settlement or a limited ruling that at least preserves contact with the non-biological parent. So, despite the opinion’s weak practical significance, it demonstrates an important shift in the application and interpretation of the Minnesota third-party visitation statute. N.S.V. may ignite momentum to expand interpretation of Minnesota’s third-party visitation statute to apply to stepparents and, formally, unmarried same-sex couples.

 

Further, N.S.V. prompts the following question: Would Bischoff have been granted third-party visitation rights if same-sex marriage was legal while the parties were in a relationship?  It was not until 2013 that the Minnesota legislature passed new laws permitting same-sex marriage.^[18] If the parties had the opportunity to wed, but opted out, it is possible the Court would have been more hesitant to grant Bischoff third-party visitation rights.

 

The expansion of third-party visitation rights for unmarried, same-sex couples would bring same-sex couples one step closer to equal family law treatment as opposite-sex couples. Critics of third-party visitation expansion may argue that expanding third party visitation rights to unmarried same-sex couples when those couples had the opportunity to wed would open the floodgates for any individuals that acted as parental figures over their partner’s biological child to raise third-party visitation claims. This third-party visitation issue is gaining momentum, and it is likely Minnesota will continue to see more claims arise under the third-party visitation statute in the near future. Thus, Minnesota will likely issue a published opinion on the topic soon.

 

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*University of Minnesota Law School, 2021 J.D. candidate

[1] Beth Sherman, Third Party Visitation Statutes: Society’s Changing Views About What Constitutes A Family Must Be Formally Recognized By Statute, 4.1 Benjamin N. Cardozo Sch. L. J. Conflict Resol. 1 (last visited March 6, 2021).   https://cardozojcr.com/issues/volume-4-1/note-3/  (included because I saw you linked other sources in past blog posts)

[2] Troxel v. Granville, 530 U.S. 57, 70 (2000) (“[I]f a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.”).

[3] In re Custody of N.S.V., 2019 WL 4412722 (Minn. Ct. App. Sept. 16, 2019).

[4] McAllister v. McAllister, 779 N.W.2d 652, 661–62 (N.D. 2010) (granting a stepfather third-party visitation rights over a child).

[5] Minn. Stat. § 257C.08.

[6] § 257C.08.

[7] § 257C.08.

[8] Gary A. Debele, Family Law Issues for Same-Sex Couples in the Aftermath of Minnesota’s Same-Sex Marriage Law: A Family Law Attorney’s Perspective, 41 Mitchell Hamline L. Rev. 157, 173 (2015). (https://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=2676&context=wmlr )

[9] Id.

[10] In re Custody of N.S.V., 2019 WL 4412722 (Minn. Ct. App. Sept. 16, 2019).

[11] Id. at 5.

[12] Id. at 1.

[13] Id.

[14] Id.

[15] Id.

[16] Id. at 5.

[17] Minn. Stat. § 480A.08.

[18] MINN. STAT. § 517.01.