If a man and a woman are unmarried at the time of a child’s birth, the mother has sole legal and physical custody until the court issues an order stating otherwise. An unmarried father has to establish himself as the legal father of a child before he has any rights to ask for parenting time. Even if the parties are exercising parenting time and getting along, it is always best for the father to get his rights established through the court system. Without a court order granting the father parenting time, the custodial parent (presumed to be the mother in these cases) could abruptly stop parenting time or not allow the father to see the child. In most cases, this is not in the child’s best interest, but she has the legal right to stop visitation unless paternity has been established.

How can an Unmarried Father Establish Paternity?

Paternity can be established in one of two ways:

  1. By both parents signing a Recognition of Parentage (ROP). The ROP must be filed and accepted by the Minnesota Department of Health and Office of the State Registrar. An ROP does not automatically give the father the right to see the child. An ROP gives the father the right to go to court to ask for custody or parenting time. This is a “starting point” for a father to ask for legal rights.
  2. By court order in a Paternity Action. You may be granted some custodial or parenting time rights in the paternity action.

Parenting Time and Child Support

Even if an unmarried father is paying child support, he does not necessarily have legal rights to have parenting time with the child. Additionally, a father should not be told that he cannot see his child until he is current on his child support obligation. There are two different kinds of child support processes in Minnesota: one that uses a Magistrate and one that happens in District Court in front of a Judge.

An open child support case in front of a child support Magistrate is not the appropriate place to discuss parenting time or visitation. A Magistrate cannot hear issues on parenting time or visitation. The only time a Magistrate can decide an issue with parenting time and custody at a child support hearing is when it is part of a hearing to establish paternity. Then the child support magistrate can issue an order about those issues the mother and father agree on, like custody, parenting time, or the name of the child.

However, if the motion or action is brought in District Court, the Judge has the power to hear all of the issues, including child support and visitation.

Can an Unmarried Father get 50/50 or Joint Physical Custody?

The court looks at many different things the first time it decides custody. But the decision depends on the facts of each specific case. It is difficult to change a judge’s decision about custody after the decision has been made.

The court looks at the following 13 “best interest” factors to decide what is in the best interests of the child. This is for the very first time the court decides custody. These factors are:

  1. What each parent wants for custody;
  2. What the child wants. This only counts if the child is old enough. Generally, a child must be at least 10 years old before a court will ask about what they want. But the court will look at each child’s situation and decide if the child is old enough or able to say what they want.
  3. Who is the child’s primary caretaker;
  4. The closeness of the relationship between each parent and the child;
  5. The situation and relationship between the child and parents, siblings, and other people who may play a big part in the child’s life (like grandparents or parent’s new partner);
  6. The child’s adjustment to home, school, and community;
  7. The amount of time the child has lived in a stable and good environment and the need to maintain what the child is used to;
  8. The permanence of the proposed custodial home. For example, does the mother or father have a new boy or girlfriend? If they live together, how long has it been? Is it likely to last?
  9. The mental and physical health of everyone involved;
  10. The ability and willingness of the parties to give the child love, affection, and guidance and to keep educating and raising the child in his/her culture or religion;
  11. The child’s cultural background;
  12. If there is, or has been, domestic abuse by one parent against the other. How has that affected the child?
  13. The willingness of each parent to support and allow the child to spend time with the other parent (unless there is, or has been, domestic abuse).

The Court will take all of these factors into consideration when ordering custody. If parents do not agree on a custody arrangement, a parenting time evaluation may be ordered and then the evaluator will look at these factors and make a recommendation.

What if the Father is on the Birth Certificate?

Even if the father is on the birth certificate, he still may not be the legally presumed father. A birth certificate is not the legal proof of paternity in a court case. A father seeking to establish parenting time will need the certified ROP or a certified copy of the paternity order from the Court.