- What are the legal issues?
- What is a recognition of parentage?
- What are parentage tests?
- What happens with custody rights?
- How does a court determine custody issues?
- When can a child determine where to live?
- Do I really need an attorney?
The birth of a child to parents who are not married to each other, creates a number of special
legal issues which at some point usually end up being addressed in a family court proceeding. Issues
of parentage, legal custody, physical custody and parental access rights, as well as child support,
medical support and child care expense contribution issues will often need to be addressed by court
order. These can be complex and often difficult issues to resolve. Competent and experienced legal
representation for both parents is often required in order to ensure the best interests of the child
and both parents.
In order to allow the state and federal government to more easily obtain reimbursement for public
assistance that is placed on behalf of children born outside of marriage, the Minnesota legislature
passed a law providing that fathers may be court-ordered to pay child support, if both parents have
signed a document before a notary public, acknowledging who the father is. This document is called
a “Recognition of Parentage”, (commonly referred to as a “ROP”). It allows not
only the county, but the mother as well, to seek a court order directing that the father pay child
support and provide other financial assistance. In fact, hospitals usually receive a financial incentive
for having both parents formally sign a Recognition of Parentage at the time of the child’s birth.
A Recognition of Parentage also allows the child to qualify to receive social security benefits, and
inherit property from the father’s estate. However, a ROP does not establish any
legal rights in the father as to legal custody, physical custody, or even confer upon the father
any legal right to parental access with the minor child. Signing a ROP also limits the time either
parent may have to later ask a court to order paternity testing to confirm parentage.
It should also be noted that in Minnesota, where the biological father is not named on the birth
certificate, where no Recognition of Parentage has been signed, and there is no court order formally
declaring him to be the father, and the father has not listed himself with the Minnesota Father’s Adoption
http://www.health.state.mn.us/divs/chs/registry/top.htm), the mother may petition a court for the
adoption of the child by a third person, with no notice whatsoever required to be given to the biological father.
Some persons refer to ROPs as the “poor man’s adoption”, as they inexpensively and
quickly create a legal parent-child relationship, upon a man to whom the mother was not married
at the time of the child’s birth. However, it is usually not a wise thing for either the man or
the mother to sign, unless they are absolutely certain that the man truly is the biological father
of the child. There are many valid reasons why either a mother, or an alleged father should not
sign a Recognition of Parentage. You should consult with an attorney to discuss these reasons in
detail, BEFORE you sign a ROP.
Parentage tests are performed by drawing samples from the mother, child, and the alleged father.
Traditionally, the samples tested were blood samples, however most labs now do DNA testing, with
the sample consisting of a swab of saliva. Also, some labs are now able to do testing with samples
supplied by only the child and the alleged father. In any event, a lab worker analyzes the samples
to see if the child’s genetic markers are consistent with those provided by the alleged father. If
the child has certain markers that are not present in either the mother’s sample or the father’s
sample, it can be conclusively established that those markers came from someone else, and therefore
that the alleged father is not the biological father of the child. However, it
cannot yet be determined with 100% certainty (even with DNA testing), that someone is
the father of a particular child. If an alleged father is not excluded by testing, a report will
indicate the percentage likelihood of paternity. Although the actual percentage figure expressed may
be high (99% or greater), it should be noted that most labs will start with a 50% paternity assumption
factor. Nonetheless, under Minnesota law, if there is a paternity likelihood of 92% or higher, the
court can order child support to be paid. Also, with a high paternity likelihood, the burden of proof
shifts to the alleged father to prove that he is not the biological father of the child.
The legal rights of a father to a child born outside of marriage, are extremely limited, even if the
father’s name appears on the birth certificate, and even if both parents have signed a Recognition of
Parentage or other similar document. Under Minnesota law, the mother of a child born outside of marriage
is entitled to sole legal and sole physical custody of the child, until – a lawsuit is brought to address
those issues. Legal custody means the right to make major decisions concerning the child. For example,
schooling, religious training, and non-emergency medical decisions are made by the parent or parents who
have legal custody. Physical custody means the day-to-day care of the child. Absent a court order awarding
the father specific custody or parental access rights, the father of a child born outside of marriage has
no legal right to see or be with the child. Although the denial of such access by the mother may later
prove detrimental to the mother (as well as to the child), if the mother will not voluntarily allow access,
it is necessary for the father to obtain a court order declaring him to be the father of the child (unless
he has signed a ROP), and awarding him specific legal rights with regard to custody and parental access.
In order to obtain such a court order, the father must commence either a paternity or custody and parental
The court is required to address both aspects of custody, including “legal custody” and
“physical custody”. Under Minnesota law, once the father is adjudicated (i.e. formally
declared by a court order to be the father), there is a presumption that it is in the minor child’s
best interests for the parents to share in joint legal custody. However, the father must request his
custody rights. Most judges will usually grant both parents joint legal custody, unless there is a
showing made that the parents do not, or cannot effectively cooperate and communicate on major issues
concerning the child’s upbringing. If there has been domestic abuse, the court is also less likely to
award the parents joint legal custody.
Traditionally, parents agree to joint legal custody, with one parent having physical custody, subject
to the other parent’s reasonable parental access rights (usually alternating weekends, one evening a week,
alternating holidays, and extended periods of time throughout the year). However, arrangements to share
in the child’s care jointly (joint physical custody arrangements), may be an option, where both parents
are willing to assume major roles in caring for the children, and if both agree to it. Joint physical
custody does not have to mean an exactly equal division or sharing of time with the child. Arrangements
for joint physical custody are as varied and different, and as creative, as people can imagine. For example,
some parents will agree on one parent being the “school-year-custodian” with the other parent
being the “summer-months-custodian”. Other parents will share near equally in the children’s
care such that on Mondays and Tuesdays the child is with one parent, and on Wednesdays and Thursdays the
child is with the other parent, with the parents then alternating Friday through Monday morning to school.
Older children may live with the parents in alternating one week or two week periods. However, for joint
physical custody arrangements to work effectively, the parents need to be able to work together and
effectively communicate and address issues concerning their children. It is also greatly helpful if the
parents reside in relative close proximity, preferably within the same school district.
If the parents cannot agree on the custody arrangements on their own, it is often times helpful to
mediate the issue with trained professional mediators. If an agreement is still not possible, then a
complete stranger, that is, the family court judge or referee, will make a decision for the child, based
upon the court’s perception of what is in the children’s “best interests”. This may result
in a decision that is in neither parent’s liking.
Under Minnesota law there is no “magic” age at which a child’s preference for the custodial
parent controls. It is only one of many factors that the court is required to consider. However, the older
the child (for example a 15 year old), the more weight is given to the child’s stated preference. For very
young children, the court will not give much, if any, weight to an expressed preference as to custody.
Also, the court will look with extreme displeasure at parents who have tried to influence a child’s decision
about which parent they want to live with. Often times, judges will consider which parent has assumed the
major role in providing for the children’s direct care. This has a tremendous impact upon the court’s
decision. Things such as purchasing clothing, feeding, bathing, arranging for and attending doctors visits,
school conferences, games or activities, and the like, are factors which the court closely examines.
If custody and parental access rights to minor children are being determined, or if child support is
being established or modified, it is important for you to have competent legal counsel and advice. Do NOT
rely on county employees to look after your best interests. If someone says, “Oh, you don’t need a
lawyer, it’s a very informal setting” you should ask them why the County always has their attorney present.
Any time you set foot into a courtroom, even in an informal setting before a child support magistrate, you
should be represented by competent legal counsel. The setting may be informal, but the resulting court
order will have a very formal and lasting effect on you life, and your child’s life, for years to come.