Leave to seek custody not automatically covered by FMLA

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 entitle 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 doesn’t 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 doesn’t appear your employee is standing “in loco parentis,” if she is merely requesting custody.