Leave to Seek Custody

Q.       An employee will need time off to attend out-of-state court hearings to request custody of her granddaughter. Would her leave fall under Family and Medical Leave Act (FMLA) protection?

A.       FMLA protection exists to balance the needs of the workforce and productivity in the workplace, allowing for stability in a position when a worker needs to respond to a family emergency. This protection is limited to reasonable unpaid leave for medical reasons, birth or adoption of a child, and for the care of a child, spouse, or parent for a serious health condition. Protections also exist for related purposes for servicemembers.

The regulations related to FMLA leave for the birth or adoption of a child generally entitles leave to all eligible employees for “placement with the employee of a son or daughter for adoption or foster care.” The definition of a child does not include a grandchild but does include a child of a person standing “in loco parentis,” which is further defined as one who has daily “responsibilities to care for and financially support a child.” At this point in the out-of-state court proceedings, it does not appear that your employee is standing “in loco parentis,” if she is merely requesting custody.

Nor may she be far enough along in the process to determine whether she would be entitled for leave under the foster care provision, which includes placement with a child’s relatives. For an employee to qualify for FMLA-protected leave for foster care placement, there must first be a formal state action involving the employee. The FMLA definition of foster care specifically includes this state action requirement:

24–hour care for children in substitution for, and away from, their parents or guardian. Such placement is made by or with the agreement of the State as a result of a voluntary agreement between the parent or guardian that the child be removed from the home, or pursuant to a judicial determination of the necessity for foster care and involves agreement between the State and foster family that the foster family will take care of the child. Although foster care may be with relatives of the child, State action is involved in the removal of the child from parental custody.

Thus, more information is necessary before your employee would be entitled for leave under the FMLA, particularly because there is no evidence yet that an actual placement of the grandchild with your employee is currently taking place. If a judicial determination is made that actual placement with the employee is suitable and permitted, or an agreement is put in place between the employee and State to remove the grandchild from his or her parent’s home into the employee’s custody, the employee could then seek leave for further absences required for the placement to proceed. While this employee may no doubt be facing a family emergency, until a placement is officially imminent, this emergency would not be entitled to FMLA protection.  

Jason R. Mau is an attorney in the Boise office of Parsons Behle & Latimer. He can be reached at 208-562-4898 or jmau@parsonsbehle.com.