Perspectives

DO YOU HAVE CUSTODY RIGHTS? A FATHER’S GUIDE TO CUSTODY AND PARENTING TIME

Most people may be surprised to learn that a father has no legal rights to custody or parenting time with his child if he was not married to the child’s mother at the time of the child’s birth. In Minnesota, if a child is born to an unwed mother, the mother is the sole legal and physical custodian of the child. A father has to bring a legal action to obtain rights to custody and parenting time, even in cases where paternity is uncontested.

At the hospital, many unwed fathers sign a Recognition of Parentage (ROP) form along with the Birth Certificate. The ROP is different than an application for a birth certificate. The form must be completed by both parties and signed in the presence of a notary public. Then the form is filed with the Minnesota Department of Health. The legal effect of the form is to provide the father with a paternity presumption determination akin to that of a judgment or court order. If the ROP is on file with the state, the father may commence an action to determine legal custody, physical custody, and parenting time with the minor child or children. If a ROP has not been signed and filed with the state, then the father must first bring a paternity action to declare the existence of a parent-child relationship before any rights of custody or parenting time can be determined.

If a father is named on the child’s birth certificate but a Recognition of Parentage has not been completed by the parties, the birth certificate provides the father with a presumption of paternity but is not legally conclusive, nor legally binding like a ROP.

To put it another way, if a father does not sign the birth certificate, the mother or the County may file a paternity action to determine if the father is the biological father and therefore responsible to pay child support.  If a father signed the birth certificate and ROP, then the mother or County can merely apply for child support and begin those proceedings.  However, just because a father is responsible to pay child support does not mean that he has a right to custody or parenting time.  The only way for an unmarried father to gain custody and parenting time rights is to file for a Petition to Establish Custody and Parenting Time (or Paternity action if you are not on the ROP).  If the mother agrees that the father should have custody and parenting time, there is a Joint Petition to Establish Custody and Parenting Time that the parties can file with the Court.  If the mother does not agree, then the father can file a Petition with the Court and begin proceedings to establish custody.

If you’re a father struggling to obtain rights to your child, please do not hesitate to call one of our experienced attorneys to help you through the process.

Attorney Samantha Ivey| Posted July 9, 2020