Even more rare than third party visitation is third party custody and placement, but the court is empowered to do this by statute. The rule is essentially as follows: If the interest of any child demands it, and if the court finds that neither parent is able to care for the child adequately or that neither parent is fit and proper to have the care and custody of the child, the court may declare the child to be in need of protection or services and transfer legal custody to a relative or agency.
Third party placement sometimes occurs when the parents have had difficulties in life and have allowed relatives to care for the children, and then when the parents seek divorce the relatives step in seek custody and placement. When this occurs, the appropriate standard which the court uses to decide the issue is known as the Barstad standard after the case of Barstad v. Frazier, 118 W2d 549, 348 NW2d 479 (1984), in which the standard was articulated. In recognition of the strong preference for parental custody required by constitutional law, the Barstad standard says that custody shall be awarded to a parent unless both parents are either unfit or unable to care for the children or there are compelling reasons for awarding custody to a third party. Compelling reasons include abandonment, persistent neglect of parental responsibilities, extended disruption of parental custody, or other similar extraordinary circumstances that would drastically affect the welfare of the child. If the court finds such compelling reasons, it may award custody to a third party if the best interests of the children would be promoted thereby.
