FMLA Eligibility (custody issue)

karenosi · July 2003

I have been asked by an employee if receiving custody of his child qualifies for Family Medical Leave. The child is 2-1/2 and the father has never had anything more than visitation privileges. He now has custody and has asked if that qualifies since he feels it is like the adoption of a child. I can find no references to custody other than what is detailed about receiving custody of a foster child or a child for adoption. Has anyone had this issue before, and how was it resolved?

Rockie · July 2003

I have never heard of getting custody of a biological child as a qualifying event for FMLA.

Down_the_Middle · July 2003

Since "bonding" is an eligible FMLA criteria, I'd be hesitant about making too quick a decision. I'd probably confer with legal counsel 2/c if your state has any precedence with this issue. Seems to me that this would qualify with the spirit of the Act-----a 2 1/2 yr old is different than a teenager who chooses to live with the other parent and presumably the child's placement has court involvement.

Don D · July 2003

I vote that this is by no means an FMLA qualifier. The act has very specific language about birth and adoption. Regaining custody is neither. JMO

Whatever · July 2003

It may feel like adoption to the employee, but it isn't by definition. As to bonding, he could have done that during his visitations. This is not a FMLA qualified.

cthr · July 2003

Does your company have some other type of leave policy that this person might qualify for even though it isn't covered under FMLA? Even though he may have bonded with the child during visitation it is still a big adjustment for both the child and the parent. How would you handle situations with other employees who need leave that isn't qualified?

Don D · July 2003

For the sake of argument, let's assume the child is three years old and the father, then living with the mother, took 12 weeks FMLA when the child was born. After that, a year later when the child was 22 months old, the child had a serious illness that allowed the father another 12 weeks FMLA and now the parent who, after a divorce, is becoming custodial again is 'up for' another 12 weeks for bonding and he's in a new 'clock year' for FMLA purposes. This thing could take some really odd turns. I'm fairly certain the framers of the Act did not anticipate or intend bonding in this instance. I'm afraid that if the company policy did not allow for other types of unpaid, approved leave of absence, I would not see a way to let him off.

skyrocket · July 2003

What a great question. FMLA law defines a child as:
Under the law a “child” can be any of the following:

1. Biological
2. Adopted (no age maximum)
3. Foster (no age maximum - requires state action rather than informal child-care arrangements
4. Stepchild
5. Legal Ward
6. Locum Parentis (legal term for temporary or substitute parents)
7. Any child over the age of 18 who is incapable of self-care due to a mental or physical disability and for whom the care-giver is responsible for day-to-day care and financial support of the child.

In addition, if one took guardianship of a foster child, this would indeed be subject FMLA. But this is a little different in that it is a custody transfer. I agree, a legal opinion is needed if you want to contest this. I would permit it in the interest of expediency - but that is my own personal opinion and not a legal opinion.

Don D · July 2003

> I agree, a legal opinion is needed if you want to
>contest this. I would permit it in the interest of expediency - but
>that is my own personal opinion and not a legal opinion.

Skyrocket: I notice you say you would permit the use of FMLA for the bonding between a parent and child as a result of a revision to the custody ruling. What then would you do, moving forward, when this serves as a precedent for a multitude of other situations where employees think their case, although not specifically authorized under FMLA, is just as strong as this one? And how would you then defend your argument that, "Well, in the interest of expediency I felt the new custodial parent should be able to take 12 weeks of FMLA".

I never considered that FMLA considerations should or might pivot on expediency. But, I'll have to think about it.

skyrocket · July 2003

Don

In response to your question, realistically speaking few people actually use FMLA for any great length of time if the time is unpaid. Since you can require that the employee use accumulated vacation (and sometimes sick leave), that way the employee takes the time he/she wants anyway and you start the old FMLA clock for the "year" (and the employees uses vacation time accrued).

The question really revolves around how is this child defined and is there any gray area? Since a child is defined in many ways, could it be implied that this is one that fits one of the definitions. A persistent attorney can play many word games and sometimes it is just easier to grant the leave. It sucks I know, but unless it is something clearly excluded as a serious medical condition or an otherwise eligible absence, I would rather err on the side of granting the leave than have an unhappy employee with a potential case.

As I did say, it was an opinion and not a legal one at that.

Eliant · July 2003

It's not like he had never seen the child or that he just found out he had fathered a child. In that case probably FMLA might be a qualifying event (emphasis on might) Yes, common sense tells you that if he just got full custody of a child regardless of the age there needs to be some time for adjustment. However, in this case it seems that this falls under personal leave of absence. I too agree that to be sure a legal consultation would be of benefit.
Would love to know the final outcome.

Good Luck
Eliant

Don D · July 2003

Several posts seem to indicte that the law is either silent or grey on the definition of what a child is. I don't find that at all. Clearly a change of custody is not mentioned among the multiple ones included in the definition. It's not up to our discretion, I wouldn't think, to decide that there might need to be some bonding. If we do not utilize some clear standards in our administration of FMLA, a federal investigator will have us for lunch. On the other hand, if FMLA is viewed at one's place of business as replete with loopholes and coin-flips and of no real consequence to the employer anyway, I can understand a loose approach to its application. I do want you to know that my experience with manufacturing employees requesting FMLA is that upwards of 80% of them have taken advantage (literally) of the full 12 weeks of leave, unpaid.

This all makes me recall that Bill Clinton made a final, serious run at having FMLA extended to PTA meetings as well as pet-illness issues, but failed in that attempt.

karenosi · July 2003

Thanks to all for your input. After much research and discussion, the determination was made that it was not eligible, as it was not an adoption or a State placement, and there were no medical issues.

FMLA Eligibility (custody issue)

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