Many of our clients are unmarried parents. With marriage comes automatic parental rights. When you are not married, the father must go to court to establish his rights before he is able to enforce them.
Custody cases for unmarried parents start in one of two ways. If the parents never did anything to show that he is the biological father, the case must start with a paternity action. This can be initiated by either the mother or the father. Once paternity has been established either through agreement of the parties or genetic testing, then custody may be established by the court.
If the father signed a Recognition of Parentage (ROP) at the time the child was born or shortly thereafter, which is filed with the Minnesota Department of Health, he is able to skip ahead to establishing his custodial rights in the court.
Often, neither party will bring the custody action to court until child support is requested. This may be because the parties were still romantically involved and sharing in parenting responsibilities, or that they were able to work out a schedule on their own that worked for both of them. Other times, the parties will have a falling out that prompts one parent to withhold the child and the other is forced to go to court to establish some legal rights.
Under Minnesota law, in a situation with unmarried parents, the mother is presumed to have sole legal and sole physical custody until the court determines otherwise. That is why it is important for parties to have some agreement in writing and file it with the court. Without the courts protection, a mother is able to make all decisions on behalf of the child and the father legally has no say in it.