Perspectives

Family Law

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

Parenting Time under COVID-19 Shelter-In-Place Restrictions

As of March 27, 2020, the State of Minnesota has ordered a Stay at Home restriction. This means that the state is restricting the travel & all businesses to only allow essential services to continue to function.

What does this mean for parents who have court ordered parenting time?
Neither the federal government or state has suspended court orders. All current orders are still in effect. This means, as close as you are able, continue to abide by the court ordered parenting time schedule.

If there is someone in your home or the other parent’s home that is sick or is exhibiting symptoms, it is best that all people currently at that home with the sick person remain there. That means you may miss out on your parenting time schedule as ordered; however, you can schedule for compensatory or make-up parenting time once the person is no longer sick and has had no symptoms for at least 14 days.

During parenting time, do not allow in-person play dates or for them to socialize in-person with people from outside the home. It is best to have video-chat play dates and social activities or do something as a family inside the home.

What if I do not have Court Ordered Parenting Time?
Unfortunately, the Courts have mostly shut down. Unless it is an emergency and your child is in danger, the Courts are not scheduling any new cases until after the state of emergency is lifted. If there is an emergency and your child is in danger, those court proceedings are held remotely by phone. Court Administration is only accepting filings by eFiling. Some variations may be made on a case-by-case basis depending on the courthouse. Contact your local courthouse for guidance.

What if I have a case current in the Court process?
They are still accepting submission by eFiling. If you have court deadlines, you should plan to abide by them until further notice. If you have a hearing coming up, you should call the Court Clerk and ask if it will be held remotely or if it will be postponed.

Recommendations to stay healthy during parenting time swaps:

  1. If no one at your home or the other parent’s home is sick, it is still best to avoid cross-contamination of germs. If you child is old enough to do so, it is best to do curbside pick ups with one parent at the car and the other parent at the door. When your child comes to you, have hand sanitizer or disinfectant wipes.
  2. When your child gets into your home, have them bathe, wash their clothes, and change into clean clothes from your home. Disinfect their car seat or where they sat in the car. If your child brought homework or toys with them, wipes them down with disinfectant, as well.

Co-Parenting Recommendations:

  1. Come to an agreement if you are going to home-school your child or if their school has remote learning options, how you will assist your child with their learning. If home-schooling, agree on what to teach them. Keep in mind that you and the other parent may have different styles of teaching, but what is important is to teach your child in a way they can learn. Don’t forget that nature walks can be included in learning!
  2. Keep a daily journal as to their activities so you can keep the other parent updated. Google Docs or google sheets may be an easy way to accomplish this.

If you have any specific questions or wish to talk to an attorney about your case, our family law attorneys are here to help.

Attorney Samantha Ivey | Posted on April 2, 2020