Unmarried Fathers' Guide to Paternity, Custody, Parenting Time and Child Support in Minnesota
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Contents (This section is under construction. View PDF for the full booklet.)
About This Guide +
This guide has basic information about paternity, custody, child support, and parenting time for unmarried fathers in Minnesota. Every state has different laws on family law. This guide is for Minnesota only.
In this guide, the word “you” means the unmarried father. Even though not all biological mothers have physical custody of their children, the words “mother” and “custodial parent” mean the same thing in this guide. This is because if unmarried parents don’t have a court order about custody, then the mother of a child born to unmarried parents has sole legal and physical custody. Some of the legal ideas and legal standards in this guide are must first establish himself as the legal father before he has any right to ask for court-ordered custodial or visitation (parenting time) rights. This guide explains how this is done.
This guide provides general leal information.
It doesn’t take the place of advice from a lawyer about your situation.
Check with a lawyer for any recent changes in law.
If someone other than the mother has physical or legal custody of the child, different legal standards and/or different legal proceedings than those discussed in this guide may apply. Examples of people other than the mother who may have custody are the state or county through child protection proceedings in juvenile court, or a grandparent or relative through a custody action in family court.
Common Legal Terms +
Adjudicated Father – The man that a court or a Recognition of Parentage (ROP) says is the legal father of the child.
Affidavit – A written document made under oath. The person signing it is saying that these are the facts as they know them.
Best Interests of the Child – Minnesota law looks at what is best for the child when deciding about custody. This is called “Best Interests of the Child.” It is a legal standard of 13 factors. The factors are talked about later in this booklet.
Legal Custody – The parent(s) with legal custody make the big decisions in the child’s life. Things like choices about school, religion, and major medical decisions.
• The court likes parents to have joint legal custody. Then they have equal rights in making decisions. But, if there has been domestic abuse or if the parents can’t get along, the court doesn’t want them to have joint legal custody.
Motion – A formal request asking the court to do something.
Parenting Time – This is the time that a parent spends with the child. It does not matter who has physical custody. Mostly, “Parenting Time” is used when talking about the parent who does not have physical custody and the time they spend with the child. This used to be called “visitation” in Minnesota.
Paternity – Paternity deals with who is the “legal father” of a child. The biological father is not always the legal father. Only the legal father has the rights and responsibilities of a father.
• Paternity can be established when both the mother and father sign a Recognition of Parentage (ROP) or with a paternity action in court. You don’t have to have genetic testing (DNA testing) before deciding paternity, but is often a good idea.
Presumption of Paternity – In some cases, the court will take for granted that a certain man is the father of a child, like a husband. The man must prove he is NOT the father if he does not agree.
Paternity Order – A court order that says who the legal father is. The paternity order also says what rights the parents have. The order might say who has physical and legal custody of the child, and if parenting time is given to the noncustodial parent.
Physical Custody – The child lives with the parent who has physical custody. That parent is in charge of the child’s day-to-day care.
• One parent can have sole physical custody or both parents can have joint physical custody.
• One parent can have sole physical custody even if both parents have joint legal custody
Joint Physical Custody – When the child lives part-time with one parent and part-time with another parent. Joint physical custody is not always 50/50 between the parents.
Pro Se – “for oneself.” Pro se means that you don’t have a lawyer and are representing yourself in court.
Mom and Dad are unmarried and have a child. Mom has sole physical and sole legal custody until a court order says differently. WHY? +
The mother starts out automatically with sole physical and sole legal custody. This is because there is usually no question about who the mother is since she gave birth to the child. Because a father can’t be decided in the same way, the legal system waits for a signed Recognition of Parentage (ROP) or a court order that names a legal father. Only then can the father get the rights and responsibilities that are part of being a father.
Before Paternity - The Fathers' Adoption Registry. Why is it important to register? +
If you are an unmarried father, the Minnesota Fathers' Adoption Registry is a way for you to find out if a petition to adopt your child is filed in the State of Minnesota.
In Minnesota when an unmarried mother wants to place a child up for adoption, she doesn’t have to name the person she thinks is the father before an adoption can take place. But, if the father of the child has been legally recognized as the father, then he must give his okay for the adoption. On the other hand, if the father is not legally recognized, he might not even find out about the adoption.
If you are properly registered with The Minnesota Fathers’ Adoption Registry, then you have to get notice of the adoption. When you get a notice about adoption you can decide if you want to start the process to legally become the child’s father and be involved in what happens with the child.
If you are not legally recognized as the child’s father, registering with the Fathers’ Adoption Registry may be the only way to make sure you get notice if a child you may have fathered is put up for adoption.
Even if you don’t think the mother is going to place the child up for adoption, you should still register if you want to be absolutely sure that you can try to have a relationship with your child or play a part in any adoption process in Minnesota.
The law also says that not knowing about the pregnancy or birth is not a good enough reason for not registering. For more information, call the Fathers' Adoption Registry.
Acting quickly is important. You may also want to get legal advice.
I just learned my ex-girlfriend is pregnant and I am probably the father. I don’t know where she lives or if she is still in Minnesota. Should I still register here with the Fathers’ Adoption Registry, even if I don’t know for sure that she is living here or when the baby is due? +
Yes. Even if you don’t know when or where the baby will be born, you have to register in Minnesota no later than 30 days after the child’s birth to protect your rights in Minnesota to know about a potential adoption. (You may need to register with similar registries in other states to protect your rights in those states.)
In a case decided by the Minnesota Supreme Court in 2002, the court said that a potential father, who did not know that his pregnant ex-girlfriend was living in Minnesota and learned of the mother’s whereabouts and registered on the 31st day after the child’s birth, was not entitled to notice of the adoption because he registered past the 30 days. This meant he could not stop the adoption.
Are there situations when I will be told about adoption if I don’t register? +
It depends. The following are some situations when you should get notice of an adoption for a child you may have fathered:
• If you are legally established as the child’s father (declared the legal father by a court order or a
Recognition of Parentage)
• If you were married to the child’s mother within 325 days before the child’s birth or married the mother within 10 days after the birth of the child
• If you filed a paternity action within 30 days after the child’s birth and the action is still pending
• If your name is on the child’s birth record as the father (in Minnesota, only a father who is legally the child’s father can have his name on the child’s birth record)
• If you have supported the child to a large extent
• If you were openly living with the child or the mother or both.
Note: Even in these situations, it is still a good idea to register to make sure you are notified.
When do I register? +
You can register anytime during the pregnancy, but NO LATER THAN 30 DAYS AFTER THE CHILD’S BIRTH. If you don’t register on time you might not be told about the adoption and can lose any rights you may have as a father in the adoption process.
Registering means filling out and mailing the required forms. Your signature is required to put your name on the registry. Just calling the toll-free number does not count!
How do I register? +
- Click on “Certificates & Records”
- Click on “Father’s Adoption Registry”
Or contact them by mail or phone to ask for information and forms.
Minnesota Fathers' Adoption Registry
Office of Vital Records
P.O. Box 64499
St. Paul, Minnesota 55164-0499
Phone: 651-201-5994 or toll free at 1-888-345-1726
Fax: 651-201-5740 Email: firstname.lastname@example.org
What rights do I have when I register? +
If the child is put up for adoption, you have the right to get notified of the adoption proceeding.
Once you are notified, you have certain rights:
- you can deny paternity and give up your rights to establish yourself as the child’s legal father
- you can consent to the adoption
- you can start taking legal steps to claim your parental rights for the child
- you can do nothing, and any parental rights that you might have will be terminated
If you want to claim parental rights for the child, you must be legally established as the child’s father. When you get notice of the adoption proceeding, there is a form you need fill out and file with the court that says you intend to claim parental rights.
This form is called an “Admission of Paternity and Intent to Claim Parental Rights.” Go to www.mncourts.gov
- Click on “Get Forms”
- Click on “Adoption”
- Click on “Admission of Paternity and Intent to Claim Parental Rights” (choose Doc or PDF)
You must also start a paternity action. You do this by personally “serving” the birth mother with the paternity action documents. Both things must be done within 30 days of getting the notice of the adoption. See the next section for instructions on starting a paternity action.
You have the right:
- To get a free lawyer, if you have a low-income, and you filed your intent to claim parental rights with the court on time
- To get genetic tests
Once you are legally established as the child’s father, you have the right to be involved in what happens with the child. You can:
- Ask the court for custody of the child
- Be a part of making decisions in the adoption plan
- Agree to the adoption
- Agree to the adoption but seek a contact agreement
- Challenge the adoption
If you don’t file the intent to claim parental rights form with the court on time, you may have given up your right to challenge the adoption. If this happens you won’t get any more notice of hearings and your approval to the adoption is not needed.
If a child that you fathered is adopted, being a part of the process can also help make sure that the child knows about your social and medical history.
Call the fathers' adoption registry or a lawyer if you have any questions.
"Establishing" or Deciding Paternity +
When a child is born to an unmarried mother the child has no legal father until one is established by law. This is called “establishing paternity.” When a child is born to an unmarried mother, paternity is decided 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 the Office of the State Registrar. An ROP doesn’t give the father the automatic right to see the child. An ROP gives the father the right to go to court to ask for custody or parenting time.
(2) by court order in a paternity action (Paternity Order). You may be granted some custodial or parenting time rights in the paternity action.
Although parents are often asked for a copy of the birth certificate by different agencies, like if you apply for benefits from the government, the birth certificate is NOT an official proof of your paternity that you need in a court action like custody.
The official proof you need is the original or certified ROP or a certified paternity order. This is one reason why it is important to know if your paternity was established by ROP or court order.
My name is listed on the birth certificate as the father. Doesn’t that mean I’m already the legal father? +
Generally, yes. In Minnesota, if you are not married to the mother then your name should only be on the birth certificate if your paternity has already been decided. An unmarried mother is not allowed just to put any man’s name on the birth certificate. Only a legal father should be on the birth certificate. But sometimes an unmarried father’s name mistakenly appears on the birth certificate even though his paternity is not established. This can happen if the parents say they are married when the child is born, even when they are not. A husband’s name can be listed on the birth certificate because he is presumed by law to be the legal father.
When you sign an ROP and file it with the State, the State adds your name to the birth record as the father. If paternity was established by a court order, the court order must state that you are the legal father and that your name and other information is to be added to the child’s birth record. If you are being added as the father and the child’s last name will change, the court order must also state that the child’s last name is to be changed on the birth record.
There is a fee to change the birth record when there is a court order. Sometimes, if the court order establishing paternity goes to the State directly from the county court, the parents are not charged the fee.
How do I get and file a Recognition of Parentage (ROP)? +
You can get an ROP form from your child support office or find the ROP form online at www.mn.gov/dhs
- Click on the box that says “How do I”
- Under “Find” click on “eDocs and forms”
- Type the form title or the number 3159 into the search bar
Click search and choose your document from the list that comes up
Read the instructions and fill out the form. The form has to be signed in front of a notary. After both parents sign the ROP they file it with the Minnesota Department of Health. There is a fax number and address on the form. Once it is accepted by the Department of Health it is a final decision on paternity. It is the same legally as a court order stating that you are the father.
Is the ROP always a final decision on paternity? +
Usually. The only time the ROP is not final is if:
1) the mother was married during the pregnancy or at birth, or
2) another ROP is signed claiming a different man is the legal father, or
3) one or both parents are minors (under age 18).
1) If the mother was married during the pregnancy or at birth, the husband or ex-husband is thought to be the legal father. This is called a “presumption of paternity.” If the husband wants to give up his presumption of paternity, he can sign a form called a Spouse’s Non-Parentage Statement and file it with the State.
Find the form at www.mn.gov/dhs.
- Click on the box that says “How do I”
- Under “Find” click on “eDocs and forms”
- Type the form title or the number 3159C into the search bar
- Click search and choose your document from the list that comes up
Read the instructions on the form. They tell you how to complete it and file it. This form must be signed within 1 year after the child’s birth. Once it is signed and filed, the man that signed the ROP can be the legal father. If the Husband’s Non-Paternity Statement is not signed within 1 year, then a court action is necessary to decide who the legal father of the child should be.
2) What happens if 2 ROPs are filed for the same child? If the mother signs and files an ROP with you, and another ROP with another man, then each ROP is just a “presumption of paternity.” This is a very unusual case that would probably need a court action to figure out who is the legal father. Normally, once an ROP is filed with the Minnesota Department of Health and is accepted, a second ROP for the same child would be turned down and sent back to the people who signed it.
3) Parents under 18: If you or the mother are under 18 years old when the ROP is signed, the ROP is only a presumption of paternity. This means that you may still need a court order to decide paternity if you want it decided while you are still younger than 18.
Once you are over 18, there may be a difference of what happens next if the county child support office is involved. Some counties pursue a paternity court order for any case they are a part of. The ROP is still seen as a presumption of paternity. Other counties consider the ROP final 6 months after the youngest parent turn 18 ½. Then they can go ahead with establishing child support without getting a paternity court order.
Both practices have been accepted by the courts. If you are a minor parent that signed an ROP, or were a minor parent when your child was born and signed an ROP, check with your local child support office to see what they do.
Canceling a Recognition of Parentage +
The mother or father who signed the ROP can revoke (cancel) it within 60 days of signing it, for any reason. The revocation must be in writing, notarized, and filed with the Minnesota Department of Health, Office of the State Registrar. A revocation form is available from any child support office. It’s also online at: www.mn.gov/dhs.
- Click on the box that says “How do I”
- Under “Find” click on “eDocs and forms”
- Type the form title or the number 3159E into the search bar
- Click search and choose your document from the list that comes up
After 60 days, only a court can cancel the ROP. This is called “vacating.” Vacating an ROP after 60 days is hard to do. There are also time limits- so act quickly! The person bringing the court action must ask the court to vacate the ROP. These are people that can start a court action:
- husband who signed a non-paternity statement
- child support office
The court action must be based on a good legal reason. The legal reasons the court will accept are:
- someone lied in signing the document (fraud)
- duress, meaning you were forced to sign it, or
material mistake of fact. This means you thought one thing and another thing is true.
This type of court action has time limits: the mother, father or husband must bring the action within 1 year of signing the ROP. Or within 6 months after getting genetic test results that show that the man named on the ROP is not the father. A child can bring an action within 6 months of getting genetic test results or before they turn 19, whichever is later. You may need a lawyer for this type of court action.
About the Court Order/Paternity Order Process +
If the parents don’t sign a Recognition of Parentage, the other way to establish paternity for unmarried parents is through a court action. This court action is often called a “paternity adjudication”. This action is often started by the county child support office, because paternity must be decided before child support can be ordered. However, other people can start a paternity action, such as the mother, the alleged father, or even someone on behalf of the child.
There are advantages and disadvantages to the court process. To learn more, read the booklet “Being a Legal Father: Parentage information for mothers and fathers”. It is very helpful. You can get it in English, Spanish, Somali and Hmong for free online.
Find it at www.mn.gov/dhs
- Click the box “How do I”
- A list pops up. Under “Find” click on “EDocs and forms”
- Type the title or number 3159 into the search box and click “Search”
Find more information at www.LawHelpMN.org and/or talk to a lawyer. Some options for free or low-cost meetings with a lawyer are listed in the Resource section, or contact your local legal aid office.
Establishing paternity is one of the biggest decisions you will make in your life. It is very important to understand all of the legal results from establishing paternity.
How can the court decide I’m the legal father if I wasn’t at the court hearing? +
A court can make a decision about paternity even if the father, or mother, does not show up or take part in the hearing process. These are called “default orders.” What this means is that the parent gives up his or her rights because they did not show up.
In these cases the court decides paternity without genetic testing, unless the mother or another person that is part of the paternity lawsuit asks for the court to order genetic tests. The court usually decides paternity in cases without genetic testing by listening to who the mother says the father of the child is. She makes this statement under oath. That is why it is important to go to court if you are served with court papers for a paternity case.
Go to court whether you think you are the father or not. If you don’t go, you may lose the right in the future to argue that you may not be the father of the child. And if you are the father, it is important for you to be there. Important things can get decided at this time in addition to paternity, such as child support, custody and parenting time rights, the child’s name, etc.
Other paternity information: What is a presumption of paternity? +
If a man has a “presumption of paternity,” he is considered the legal father by the court. If he does not agree he is the father, he has to prove it with clear and convincing evidence. If 2 or more men are presumed the father of a child, then the court must decide the child’s paternity. Some presumptions of paternity are listed on page 10 (when the mother was married, if 2 ROPs are signed for the same child, or if one or both of the parents are under 18).
Other presumptions of paternity happen when people are married, or try to get married, during pregnancy or after the child’s birth. If this applies to your situation, you should talk to a lawyer.
The current law in Minnesota says that a man who “receives the child into his home and openly holds out the child as his biological child” may be presumed by law to be the child’s father. But if the man is not married to the mother, he still needs a court order or ROP to be the legal father.
If you have a question about how presumptions of paternity might apply to your situation, you should talk to a lawyer. This can be a complicated area of law to understand.
Genetic Testing +
Genetic testing is often very helpful—and usually a good idea—when paternity needs to be established.
Genetic testing is usually done by buccal swab (cotton swab rubbed inside the cheeks for cell collection) or sometimes by blood tests (blood drawn from the arm). The buccal swab is used most often because it is easy and painless, and just as accurate as a blood draw.
Most samples can be taken any time after the child’s birth. Test results usually take a few weeks. Genetic testing can show that a man is not the biological father of the child or it can show a greater than 99 percent probability that the man is the biological father. Today’s test results are highly reliable and readily accepted by the courts. (There is a procedure in the law to challenge test results, but it rarely happens and in those cases it is usually due to some highly unusual situation.)
If you want a genetic test to find out if you are the biological father of a child, you may not need a court order if the mother agrees to do the testing.
To get tested, parents can talk to hospital staff about genetic testing before or at the time of the child’s birth, contact their county child support office or contact a private lab. If the county child support office does not have an open case and paternity has not yet been established, either parent can apply for services from the county and ask for genetic testing. When testing is arranged through the county child support office, the cost for the test is much lower than a private lab.
What about over-the-counter paternity tests? +
There are companies that advertise “over-the-counter” paternity tests you can buy at a drugstore. You usually can’t use these test results in court. This is because usually there is no way to prove who actually did the test swab.
These over the counter tests can help you find out if you are the biological father, but if you take it to court or the county child support agency, you probably will have to do another round of genetic testing that follows the proper legal requirements to be considered legally “valid”.
Are genetic tests required? +
Genetic tests are not required before signing an ROP.
It may be a good idea to get genetic tests before signing the ROP, but you don’t have to. One reason it’s a good idea is that it takes away any doubt. This can prevent future problems that sometimes happen later if questions are raised about who really is the biological father of the child.
It is also a good idea because when you sign the ROP, you give up your right to get genetic testing later on. Generally, this means that you can’t go to court later and ask the court to order a genetic test just because you now decide you want one. If you signed an ROP more than 60 days ago, and now want genetic testing, you may need to talk to a lawyer. If it’s less than 60 days see page 11 about canceling an ROP.
Genetic tests might be required in a court action to decide paternity.
The mother, alleged father or other parties to the court case, like the county child support office, may ask the court to order genetic testing. Some child support agencies require genetic testing in cases in which they are involved in establishing paternity through the court process. Contact your local child support agency if you have questions about this.
I think that I am the father of a child, but paternity has not yet been decided for the child. I think I want to sign the ROP, but I would also like to have genetic tests done to make sure that I am the biological father. Do I have to wait until I’m brought to court to get genetic tests? +
No. If you and the mother agree, you can schedule and pay for genetic testing yourself. If you don’t have the money to pay for genetic tests, you can ask the child support office to help you. The child support office helps mothers and fathers establish paternity. They can usually help you set up genetic tests before the court process is started (unless the court process has already started). Call your county child support office to ask for help. See the Written Resources section at the end of this guide for the website and phone number.
If you ask the child support office for help in establishing paternity, they will also set up child support if the mother is getting public assistance. But, they must pursue child support in any case where the mother is getting public assistance, even if you don’t ask for help in getting genetic testing. For more information see the child support section of this guide.
You can always sign an ROP after you obtain genetic test results if the child’s paternity has not yet been established, but you can’t get the child support agency to help you get genetic tests done after you sign the ROP. The only exception to this is if you are within 60 days of signing the ROP, then you can revoke the ROP and ask for genetic tests.
Do I need to go to Court if there aren't any problems? +
There are many reasons for an unmarried father to go to court or file a motion to set up parenting time or custody. You may want to go to court or get a court-ordered agreement even if you don’t have any problems seeing the child. A court ordered agreement makes sure your rights are protected.
A court order could be especially important to get if the child lives with you but you don’t have a court order saying that. Here are some other reasons to go to court:
To make sure you get to spend time with your child. If you never set up parenting time or custody rights in a court order, you can only have the child if it is okay with the mom. The mom is the custodial parent. This is because the law gives an unmarried mother sole legal and sole physical custody of the child. Only a court order can change that. If there is no court order, the custodial parent can change her mind about letting you see the child.
- To get notice if the mother wants to move out of state. If you have court-ordered parenting time rights, the mother can’t move out of state with the child unless you say it is okay. Or she gets a court order saying it is okay to move. If there is no court order giving you parenting time rights, she can move out of state without asking. It does not matter if you are a big part of the child’s life.
If the mother asks the court for permission to move, the court looks at several things to decide if it is okay. These things include:
- your relationship with the child
- how possible it would be to continue that relationship
- how far the mother is planning to move
- your financial situation.
To get notice if the mother wants to give someone else temporary custody. Sometimes, a mother gives temporary custody to someone else. She doesn’t have to tell you about it or ask you if it is okay UNLESS you have court-ordered rights. There is a form called a Delegation of Parental Authority that a custodial parent can use to give another person temporary custody of the child for up to 1 year. As the legal father, you only get a copy of this form if you have court-ordered parenting time rights that are not supervised. There also can’t be an Order for Protection (OFP) in place against you.
- To get holiday time with your child. The court can order that you get to spend time with your child on certain holidays, birthdays, etc. You can also ask for vacation time with your child. The court order is enforceable. This means that that if the other parent is not letting you get the time you are supposed to, there are ways to make them follow the rules of the order.
- To get make-up parenting time for time that you have been denied. If the mother is not letting you see your child or if you have had problems with your parenting time, you can ask the court for help. The court can give you extra time with your child to make up for the court-ordered parenting time that you did not get.
- To enforce your parenting time rights. If you have ongoing and serious parenting time problems, the court can hold the other parent in contempt of court or change custody. The problems must be serious before the court will even think about these options. You must have gone to court at least once or more to try to make the other parent follow the parenting time order.
- To qualify for the parenting expense adjustment. Under the child support law in Minnesota, parents with court ordered parenting time can get a parenting expense adjustment. The adjustment lowers the basic child support amount you have to pay by 12 percent. Your parenting time has to be between 10 and 45 percent of time with the child. Only parents with court ordered parenting time are supposed to get the adjustment.
Do I have to pay to go to court? +
Most court forms have a filing fee that you have to pay. If you have a low income you can ask the court to let you file for free. There is a form you fill out and file with your other court papers. It is a fee waiver form called “In Forma Pauperis” or IFP. You can get one at your court or online at www.mncourts.gov
- Click on “Get Forms”
- Click on “Fee Waiver / In Forma Pauperis”
- Click on “Fee Waiver (IFP)” packet
- Click on “Debts, Fees, Deposits”
- Click on “Court Fee Waiver (IFP)”
Establishing Physical Custody: Who should the child live with? +
The court looks at many different things the first time it decides custody. But the decision dependson the facts of each specific case. It is difficult to change a judge’s decision about custody. The court looks at the following 12 factors to decide what is in the best interests of the child. These “best-interest” factors are:
1. A child’s physical, emotional, cultural, spiritual, and other needs. How does the parents’ plans for the child affect these needs and the child’s development?
2. Does the child have any special medical, mental health, or educational issues that need special parenting arrangements or access to services?
3. What does the child want? If the court decides the child is able, old enough and mature enough to make a choice.
4. Has domestic abuse happened in either parent’s household or relationship? What are the details of what happened and will it affect parenting or the child’s safety or needs?
5. Does a parent have physical, mental, or chemical health issues that affect the child’s safety or developmental needs?
6. How has each parent provided care in the past?
7. The willingness and ability of each parent to keep caring for the child. How will the parent meet the child’s developmental, emotional, spiritual, and cultural needs? Can the parent be consistent and follow through with parenting time?
8. Will changes to home, school and community affect the child’s well-being and development?
9. The relationship of the child with each parent, brother and sister, and anyone else who is important to the child. How will the proposed custody plans affect these relationships?
10. It is usually better for the child to spend as much time as possible with both parents. The court looks at this and also looks at if spending less time with one parent might harm the child in some way.
11. Will each parent help the child have contact often and regularly with the other parent? (except when there is family violence – see #4)
12. The willingness and ability of parents to cooperate in raising their child. Can the parents share information? Can they keep the child away from their conflicts? Do they have good ways to resolve arguments over big decisions about the child?
Custody Evaluations +
If parents don’t agree about custody, the court may order an investigation. The investigator will report about what kind of custody and parenting time are in the child’s best interests. These reports are usually called “custody evaluations.” Judges rely heavily on “custody evaluations” in making their decisions. It is important to participate in this process.
Custody evaluations may be done by:
- court services, a department of the county that is assigned to complete these reports (typically in larger counties)
- a guardian ad litem
- a private custody evaluator
You may have to pay for a custody evaluation. Custody evaluations usually take at least 4 months to do. They might do things like:
- interview both parents,
- make a home visit with each parent,
- observe the child with each parent,
- do a records check (criminal, child welfare, mental health, and school records of the child), or
- do a psychological evaluation or chemical dependency assessment, if needed.
After getting all the information, the evaluator makes a detailed report to the court. The evaluation looks at each of the 12 best-interest factors when deciding legal or physical custody.
Judges take these evaluations very seriously because the evaluator has investigated and analyzed the case.
If a parent does not agree with the custody evaluator’s suggestions, the parent can usually ask for a trial. At the trial, the parent can have evidence and witnesses to show why they think the evaluator’s suggestions should not be followed by the judge. But it can cost a lot of money and is generally hard to win custody with an evaluation that is not in your favor.
Once a court order deciding custody is final, any future court actions about custody can only be requests to change (or modify) custody.
This includes a paternity order that sets custody. A request for a change in custody is harder to win than your first request for custody. See the next section: Changing Physical Custody.
Changing Physical Custody +
Once the court makes the very first custody decision, it is generally very hard to change it later unless there is harm to the child or the parents agree to the change.
To change custody, the court can only look at facts that have happened since the very first custody order was made. They can also look at facts that were not known to the court at the time of the first court order. The change of custody must be in the best interests of the child.
IMPORTANT—There are time limits on asking to change custody. The court can only consider a motion to modify custody if at least 1 year has passed since custody was first set by a court order. If you asked for a change already and had a decision from the court, then you must wait 2 years. In emergency situations, these time limits can be waived.
If the time limits have passed, and there is a change in facts since the last order, the court can change custody only if:
1) Agreement: Both parents agree to the change of custody
2) Integration: The custodial parent has let the child become part of the other parent’s home
3) Harm: There has been a big change in the child’s situation, and the child’s present custody harms or puts the child in danger, physically or emotionally. The benefits of changing custody have to be greater than the harm likely to be caused by a change in environment
4) Custodial Parent Moves Out of State, Even Though the Court Said They Could Not Move: If the court said the primary custodial parent could not move out of state with the child, but they did anyway.
Parenting Time Interference +
In some cases, denial or serious interference with parenting time may be good cause to change custody. This means that the custodial parent is not letting the other parent see the child, or is making it very hard for that parent to spend time with the child. Using this to try to change custody is often a last resort. It would be used only after trying other ways to get the custodial parent to follow a parenting time order has not worked.
Just because you file the motion to change custody does not mean that the court will okay it. It is not enough to say that you are “the better parent” in a motion to change custody.
Two-stage hearing process +
There is a 2-stage process for changing custody. In the first hearing, the court decides if what you have told them is enough for the court to change custody. “What you have told” the court means what you put down in your written affidavit of your motion to change custody. In the affidavit it is very important to tell the court everything you want them to think about in looking at your request to change custody.
Make sure you put everything in your affidavit or in supporting affidavits from witnesses. The court does not have to consider anything that you say at the hearing that is not in the affidavit.
If the court decides that your affidavit gives good reason to ask for a change in custody, there will be a second hearing. In the second hearing, you have to prove the facts that you wrote about in your affidavit. The court may order a custody evaluation to get updated information between the first and second hearing.
What if I want joint physical custody? +
Joint physical custody is where the daily care,control and home of the child are shared between the parents. If no custody order has ever been decided, then the very first request for joint physical custody is decided under the best-interests of the child standard.
When parents can’t agree about joint physical custody, the court is unlikely to order it. They will only order it in specialsituations. An important factor in getting the court to order joint physical custody is if the parentscanshow thatthey can work together. Another concern is whether the parents can easily move the child back and forth between their homes. The court looks at things like how close the parents live to one another,if theyboth have a car oranother way to get the child around, and where the child’s school or day careis located.Courtswilllookathowthe parents have worked together on things in the past.
If the court finds there has been domestic abuse between theparents, then the court assumes that joint physical custody is not in the best interests of the child. The parent asking for joint physical custody must prove otherwise.
Joint physical custody is NOT easily granted in a custody case where the parents don’t agree to it.
What things may make it more likely for me to be given joint physical custody? +
- You and the child’s mother have already been sharing physical custody, but you have never had a court order giving you both joint physical custody
• You and the child’s mother can get along well when it comes to planning and/or making decisions for your child
• You had the child in your home for long periods of time (for example, the child’s mother left the child with you while she moved out of state and then returned a year later) or you took care of the child as much as the mother did
• You can show in other ways that it is in thebest interests of your child to have joint physical custody
Remember, you and the mother can agree to joint physical custody.
What happens to child support if I am granted joint physical custody? +
You may still have to pay some child support if you are given joint physical custody. See the section on child support.
What happens if the court gave me parenting time but now I want joint physical custody? +
Most orders that give parenting time also set physical custody. If custody has already been decided by a court order, but now you want to ask for joint physical custody, you must make a Motion to Change Custody of the child. For the motion to be heard by the court:
1) you must meet the time lines (see section on Changing Physical Custody),
2) you must be able to give facts that show good reason to change custody, and,
3) These facts must be ones in the list of what the court can look at.
See the section on Changing Physical Custody.
Just because you file the motion does not mean the court will make the change. If the child’s mother does not agree to joint physical custody, and the child’s mother has not let your child start living with you, then a change of custody can only be done by proving that the child is “endangered” by living in the mother’s home.
The danger can be physical or emotional. In general, if there is a case of endangerment in the current custodial parent’s home, then joint physical custody would not be right anyway. In other words, you are likely to be granted joint physical custody after custody has been decided in only one situation: where the mother agrees.
What is "legal custody?" +
Parents are often confused by the term “legal custody.” It is important to understand exactly what this term means. Legal custody is sometimes called “decision-making custody.” It gives you the right to decide the child’s upbringing, like choosing schools, making major medical decisions, and choosing religious training.
The courts often give joint legal custody, which means that you and the other parent have the same rights to make the major decisions in your child’s life. Legal custody is different from the courts deciding who the child should live with (physical custody) and what time the noncustodial parent spends with the child (parenting time).
Generally, if either parent asks for joint legal custody, then the court will often give joint legal custody to both parents. This is because Minnesota law presumes that joint legal custody is the best for the child. But, the court will not order joint legal custody if either parent can prove that it is not in the best interests of the child. Also, the court will often not order joint legal custody if there has been domestic abuse between the parents.
If the parents don’t agree on sharing joint legal custody, the court must consider the twelve “best-interest factors."
I thought I got legal custody when I signed the Recognition of Parentage (ROP)? +
No. Signing the ROP does not give you any legal rights to your child – including legal custody – but it is the starting point for you to go to court to ask for legal rights. To get joint legal custody, you must file a Motion to Establish Custody and Parenting Time.
What is "parenting time" and how is it decided? +
Parenting time used to be called “visitation.” It is the time a parent spends with a child. It does not matter who is named as the custodial parent, but most people use the term parenting time to talk about the time the noncustodial parent spends with the child. The court decides parenting time according to the best interests of the child.
The court can’t take away parenting time or stop you from having parenting time because you can’t pay child support. On the other hand, paying child support does not mean that you automatically have parenting time or that you will automatically get parenting time if you ask the court for it.
Generally, the court wants the noncustodial parent to have parenting time with the child, unless there are reasons it is a bad idea, like abuse or harm. In setting up parenting time, the court will look at things like:
- The age of the child and,
- What kind of relationship the child has with the noncustodial parent. For example, how often has the noncustodial parent seen the child? Has the noncustodial parent’s time with the child usually included overnights?
Because the court wants to know about your past relationship with the child, it is a good idea to write things down, like the time you spend with your child. You can write it on a monthly calendar. Keep track of the dates and time that you spend with your child. Give this information to the court when you make your request for parenting time. This information can help the court when it is deciding how much parenting time to give you.
What else will the court look at when deciding parenting time? +
When deciding how much parenting time to give a parent, the court must consider that “in the absence of other evidence, there is a rebuttable presumption that a parent is entitled to receive at least 25 percent of the parenting time for the child.”
This means that the court will try to make sure that the child spends at least 25 percent of the time with each parent. 25 percent is figured out by counting the number of overnights. For example, 25 percent of the overnights in one month (4 weeks) is 7 overnights.
The court can use a different method for figuring out 25 percent if the parent spends a lot of time on separate days with the child but no overnights. So, the 25 percent parenting time might be 7 full weekend days but no overnights. The court may also consider the age of the child. For very young children, it may not be a good idea for the child to have overnights right away. The court can consider the age of the child and order some other way to get the 25 percent parenting time.
The parents can have a 6-month review hearing option after the court first decides custody or parenting time.
The court will also look at:
Order for Protection. If there is an Order for Protection because of domestic abuse between the mother and father or an Order preventing the father’s contact with the child, the court must take this into account when making a decision about parenting time.
Serious criminal convictions. If you have been convicted of a serious crime, you may have to prove that you should have time with your child. The serious crimes that count in this category are:
- murder or manslaughter
- assault in the first, second or third degree
- deprivation of custodial or parental rights
- prostitution charges involving a minor
- criminal sexual conduct in the first, second or third degree
- incest or solicitation of a child to engage in sexual conduct
- malicious punishment or neglect of child
- terroristic threats or felony harassment or stalking.
You must prove that you should get time with your child if the conviction was in the last 5 years, or if you are still incarcerated, on probation, or under supervised release for the offense. You also must prove that you should get time with your child if the victim of your crime was a household or family member. You must convince the court you should have parenting time or custody rights by showing that it is in the child’s best interest to spend time with you.
If you think this section may apply to you, you may want to seek advice from a lawyer before taking any court action.
Guidelines on Ordering Parenting Time. The court has “A Parental Guide to Making Child- Focused Parenting Time Decisions.” This is a document that helps judges make parenting time decisions. It takes into account the child’s age and development. For example, the guidelines suggest shorter but more visits between a noncustodial parent and an infant. But longer visits and maybe overnights for a teenager. This guide is available online at: www.mncourts.gov
- Click on “Help Topics”
- Click on “Paternity”
- Click on the Tools & Resources tab
- Click on the document title
- Other issues that affect the child’s best interests. A child who has severe medical problems or other special needs, like autism, may need a different schedule of parenting time. A parent’s parenting time may be figured out differently to fit with that child’s physical or emotional development.
How to Get Court-Ordered Parenting Time +
If you are pro se (without a lawyer) the exact type of paperwork you need to file with the court to set parenting time depends on whether you signed a Recognition of Parentage or have a Paternity Order from court. Some courts have their own forms or procedures that may be different from what is in this guide or on the state court website. Check with the court where you are filing form.
If you signed a Recognition of Parentage (ROP), and you don’t have a lawyer, you can ask the court for parenting time by filing a Request to Establish Custody and Parenting Time. You may need the original copy of your ROP (a yellow or green copy) or a certified copy of your ROP before you can file this court action. Find the form at www.mncourts.gov:
- Click “Get Forms”
- Click “Child Custody / Parenting Time”
- Click the Packet titled “Request to Establish Custody and Parenting Time”
How do I get a copy of my ROP? +
To get a certified copy of your ROP, you must fill out a form called “Application for a Certified Recognition of Parentage”. Mail the completed form and $9 in a check or money order to the Minnesota Department of Health. The address is on the form. Find the form at www.health.state.mn.us
- Click on “Certificates & Records”
- Click on “Adding a father to a birth record (establishing paternity)”
- Click on “Getting a certified copy of a filed Recognition of Parentage or other parentage forms”
- On this page you can click to open and fill out the form, read instructions and get other information.
It can take a few weeks to get the certified copy of your ROP in the mail. You have to ask for it by mail – there is no office where you can get “walk-in” service to get your certified ROP.
If you have a Paternity Order, the Order should tell you what your parenting time rights are. Sometimes a Paternity Order says “reasonable parenting time.” This means that the times you get to see your child are not set. You and the mother are supposed to make your own plans for your parenting time. If you disagree, the parent who has physical custody of the child makes the final decision. The only way to change this is to go to court.
To change your order from “reasonable” to a set schedule of time, ask the court to change your parenting time rights by filing a “Request for Parenting Time Assistance.” You can also use this form if you were not given any rights in the Paternity Order. You may need a certified copy of your paternity order before you can file paperwork in court. To get the form, go to www.mncourts.gov:
- Click “Get Forms”
- Click “Child Custody / Parenting Time”
- Click the Packet called “Request for Parenting Time Assistance”
How do I get a copy of my paternity order? +
To get a certified copy of your paternity order, you need to go to the Family Court Division at District Court. Ask for Family Court Records for the county where the Paternity Order was done. If you live outside the metro area in a smaller county, there might not be a family court division within District Court. If this is the case, ask at District Court for a copy of your order. Because paternity cases are private files and not open to the public, you need to have a photo I.D. to see the file. Most counties charge around $10 for a certified copy of the order.
What will the court decide if I bring an action for parenting time? +
Even if you ask the court to just give you parenting time and are not asking the court to decide legal or physical custody, the court will usually decide those things anyway. This is because once the court gets involved, it must decide the other parental rights of custody along with parenting time.
What if I want to change my parenting time? +
Parenting time is easier to change than custody. With parenting time, the court looks at the best interests of the child. A court will look to see if the situation of the child has changed since the most recent court order and if a new court order is needed for the child’s best interest. You must state good reasons based on changes in the life of the child and parents since the last court order in order to get the court to change your parenting time. Or, parents can agree to change parenting time.
What if I am not getting my parenting time? +
If you have a court order giving you a parenting time schedule that the custodial parent is not following, you can ask the court to help you fix the problem. If you do this without a lawyer, you need to file a Motion for Parenting Time Assistance. You need to be able to tell the court the dates, times, and ways that the custodial parent has denied or caused you a problem with your parenting time.
You can ask the court for extra time with your child to make up for the time that you did not get. This is called “compensatory parenting time.” You can ask the court to fine the other party. The money from a fine goes to the county, not you. The court has other ways to help you. They are listed in the Motion for Parenting Time Assistance.
If the problems you have with your parenting rights are serious, the court can hold the custodial parent in contempt of court. In some cases, the problems may be bad enough that a court gives physical custody to the non-custodial parent.
Can the court restrict my parenting time? +
If the court finds that parenting time is likely to harm the child physically or emotionally, then the court can restrict parenting time or not give any time to you at all. The court is not supposed to restrict parenting time rights until there is a hearing on whether the restrictions are necessary. If there is an emergency, or an Order for Protection, then there does not have to be a hearing before the restrictions are put in place. But there should be a hearing later, if you ask for it.
Restrictions on parenting time can be things like ordering that another adult be present during the visit, ordering that the supervised parenting time is at an agency, or ordering that the parent remain sober during the visits. It is important to follow these rules, even if you don’t agree with them or like them. Often when the court orders things like this, it is doing it only until it has more information about what is needed long-term for the best interests of the child. Sometimes the rules remain in place until a new court order is made. Other times the rules might end when the temporary order containing the restrictions ends. It is the responsibility of the parent with the restrictions to follow the order and/or get a new order without restrictions if the situation changes.
For more information about supervised parenting time at a parenting time facility, refer to the Written Resources section at the end of this booklet.
Do I have to go to court? +
No. Parents can always agree on how the child should spend time with the parents. If you make an agreement with the other parent, make sure that you do these things:
Write it down! Make sure you put down the details of the agreement. Things like the dates and times of parenting time. For example, the noncustodial parent will have time with the child every other Friday from 6 pm to Sunday at 5 pm. Decide who is responsible for transportation and where the exchanges will take place. Both parents may want to sign and notarize this agreement. This agreement is not binding by the court or law enforcement, but is evidence that you did have an agreement if you need to go to court later. This agreement will not protect you the same way that a court-ordered parenting time order will protect you.
- Keep written records of the time you spend with your child. A good way to do this is to write down on a calendar all the days and nights you spend with your child.
- Keep a written list of phone calls made to the other parent about your agreements.
- Remember, even if you and the mother agree now, you may not agree in the future. If you don’t have court-ordered rights in place, no one HAS to give you notice of certain decisions involving your child. Even if you get notice, you might not have a say in those decisions.
There are certain things you do NOT want to do: +
- Do not make an agreement if there is an order from court telling you to stay away from the other parent and/or child. This order may be called an Order for Protection, Harassment Restraining Order, or may be an order from Criminal Court or an order from Juvenile Court.
- Do not stop paying child support because you can’t see your child. You are still legally responsible for financially supporting your child even if you are prevented from spending time with your child.
- Do not threaten the other parent into letting you see your child.
I’ve heard about mediation. How does this work? +
Mediation is a way to make an agreement with outside help. Mediators don’t take sides. They are trained in working with parents on disputes, and they can help you and the other parent reach an agreement, which you may want to take to court. To find a list of mediators, contact your local court, legal aid or legal services agency, or a social service agency. Remember, mediators can help you come to an agreement, but that agreement is not legal until it is made into a court order.
What are “Parenting Plans?" +
Minnesota has something called a “Parenting Plan” for parents who are divorced or never married. At the very least, parenting plans must have:
- a schedule of the time that each parent spends with the child
- rules about who will make what decisions about the child and
- a way to solve disputes.
Parents can use terms other than physical and legal custody in setting out their roles and responsibilities in a parenting plan. The terms used must be defined in the parenting plan. It is important to remember that even though you may use other terms, the plan must set legal and physical custody so that the plan can be enforced.
Parents who agree to make a parenting plan of their own free will can put other things besides custody and parenting time in the plan. Like how to decide when and if the child can be in extra-curricular activities and who would pay for those activities. Parenting plans often have more details than a typical court order about how parents are going to care for their children together. For more information, see Minnesota Statutes section 518.1705 and the Written Resources Section at the end of this booklet.
What if these options don’t work? +
If you are having problems with being able to see your child, you could write letters to the child’s mother about your efforts and your wishes to see the child. Don’t do this if there is an Order for Protection, Harassment Order or No Contact Order in place telling you not to contact the mother. If you send letters, keep copies. Sometimes people send letters like this by certified mail with return receipt to prove they were sent. Parents who are not getting along sometimes find it easier to use letters or third parties to set up parenting time for the child and other parent.
If you don’t have any luck with the above options, you probably need to go to court so that you can see your child. The court is the only place that can establish and enforce your rights as a father.
Moving the Children Out of Minnesota +
If the parent with physical custody of the children wants to move out of the State of Minnesota with the children and the other parent has court ordered parenting time rights, the custodial parent must get the other parent’s permission to move with the children, or get permission from the court. If you don’t have court ordered parenting time rights, the custodial parent does not have to get your permission or the court’s permission to move with the children.
If this issue goes to court, the judge must decide whether to let the custodial parent move with the children. The judge must consider 8 factors in deciding whether to allow the move:
1) the child’s relationship with each parent, siblings and other important people in the child’s life
2) the age and needs of the child, and how the move might affect the child
3) how possible it would be to continue the relationship with the noncustodial parent, considering the logistics and financial situation of the parents
4) the child’s preference, taking into consideration the age and maturity of a child
5) if there is a pattern of conduct of the custodial parent either encouraging or discouraging the child’s relationship with the noncustodial parent
6) if the move will make the custodial parent and child’s life better, including financial or emotional benefit or educational opportunity
7) why each parent wants or doesn’t want the move
8) the effect on the safety and well-being of the child, or of the parent who wants to move, if there has been domestic abuse between the parents
The custodial parent who wants to move with the children has the burden of proof to show it is in the child’s best interest to move. But if the parent requesting permission to move has been a victim of domestic abuse by the other parent, the burden of proof is on the parent opposing the move.
The judge must consider all 8 factors in making the decision. The judge is not limited to just these 8 factors. If the purpose of the move is to interfere with parenting time given to the other parent, the judge must not allow the move.
How is the child's name decided? +
At birth: If the parents are not married, the mother decides the child’s name.
If you have a Recognition of Parentage: If the parents are signing a Recognition of Parentage form, they can change the child’s last name on the Recognition of Parentage form if they agree. If they don’t agree, the child’s name stays as it was before. It takes a separate court action to change the child’s last name.
If you have a Paternity Order: If the father is named as the legal father by a court order as part of the paternity process, he can ask that the child’s name be changed. He needs to do this while the paternity proceeding is going on in court. The court decides whether to accept the change.
Can I apply to the court have my child’s name changed?
There are 2 ways applications for name change for minor children usually go to court:
1) asking for the minor child’s name to be changed as part of a paternity proceeding
2) asking the court to change the child’s name as part of a separate proceeding
Minnesota law says:
- the minor child has to live in Minnesota for at least 6 months before the application for the name change
- the application must be made in good faith, without intent to defraud or mislead
- both parents have to know about the application. If you don’t know where the other parent is, you must prove that you tried to find them or show good reason not to.
The Minnesota Supreme Court has set up factors that the court can use to decide if changing a child’s last name is in the child’s best interests. But, the court is not limited to these factors.
Best Interests Test—5 factors
If the other parent does not want the child’s name to be changed, the court will make sure that the notification and other procedures were done right. The court will usually okay the name change unless they decide that it is not in the best interests of the child. However, the Minnesota Supreme Court has stated that changing a child’s last name when one parent does not agree should be considered with “great caution” and only where “the evidence is clear and compelling that the substantial welfare of the child necessitates such a change.” The best interests of the child is really the biggest factor in changing a child’s last name.
The 5 factors are:
1) What the child wants for his or her name
2) If changing the name would affect the child’s relationship with each parent
3) The length of time the child has had the name
4) The degree of community respect associated with the present and the proposed name
5) The difficulties, harassment or embarrassment that the child may go through from the present or proposed name.
Forms and Instructions
There are state court forms you can get to apply for a name change of a minor child. Find them online at www.mncourts.gov.
- Click on “Forms”
- Click on “Name Change”
- Click on “Minor Forms”
You have to show proof that both parents have been notified of the Application for Name Change. The instructions describe the process and proof that you need to show that the other parent has been notified, like a certified letter to the other parent if the address is known.
There is a filing fee for an application to change a minor child’s name.
Always talk to a lawyer for updated legal information.
Child Support Laws in Minnesota +
Learn about MN Child Support Laws to better represent yourself.
An updated booklet on child support from the Minnesota Department of Human Services, Child Support Enforcement Division, has helpful information about child support and the changes in the law. This booklet, called "Understanding Child Support," is available online. Go to the Minnesota Department of Human Services website, www.mn.gov/dhs.
- Click “A-Z Topics”
- Click “Child Support”
- Click “Resources.” Find the title in the list of documents.
Some child support offices hold general informational sessions that are open to the public. They include information about the new child support laws. Contact your local child support agency for more information.
How much will I have to pay in child support? +
The court has the final say in how much you will pay in child support but there is an online calculator than can help you get a good idea. You enter financial information and get an estimate of what your child support order might be.
The calculator is at: http://childsupportcalculator.dhs.state.mn.us
They ask you for information about jobs and benefits and costs for things like child care and doctor bills. It also has forms, worksheets, and instructions.
Remember: The calculator only gives you an estimate. It is not a guarantee of what the court will order. The court has the final decision about what amount of child support to order.
When you use the online calculator, remember:
- The calculator does not save your work. Get all the information you need together before you sit down to use it. You must print out your work after putting the information in or you will lose it.
- The estimate made by the web-based calculator is only as good as the information you put in. If you are just guessing, then the estimate of the child support amount won’t be as good as when the court gets the exact information.
Children need financial support from both parents. The parent who the child lives with (the parent with physical custody) supports the child by providing a home, paying bills like lights and heat, providing transportation, clothing and school supplies, and other things. The term "child support" usually refers to the money that the other parent pays to help support the costs of the child. Child support is determined by a court order.
A child support order usually includes 3 types of support:
- basic child support (helps pay for regular costs of the child),
- medical support, and
child care support.
The court looks at all 3 types of support and what may be needed. But the court also looks at each situation and may “reserve” any or all of the 3 types depending on each case. “Reserving” means that the parent does not have to pay now for that support, but the issue can be brought up in the future.
Times when child support might be “reserved” are things like: if the parent who would owe child support is getting public assistance for other children, or is completely disabled and unable to earn an income.
An order for child support may also have an order or judgment for past, unpaid child support amounts, called "arrears."
Some Highlights of Minnesota Child Support Laws +
- Income Shares – Income of Both Parents Used to Determined Child Support. Under current law, the income of both parents is used to determine child support.
- Gross Income. Child support is calculated using “gross income.” Gross income is the amount of money you make before taxes are taken out. Gross income for setting child support is not the same as gross income for tax purposes – there are different rules that apply.
When calculating gross income for the purposes of determining child support, some things get added in and some things get taken out. You must look at the law to see how "gross income" for child support is determined. For more information, read Understanding Child Support from the MN Department of Human Services.
- Parenting Expense Adjustment. This is a deduction that the parent who does not have primary physical custody gets to subtract from the basic support they pay. It gets figured into the child support amount in the court order. It is the amount of parenting time stated in the court order that controls the parenting expense adjustment—not the custody label!
This is how it works:
- If a noncustodial parent has court ordered parenting time between 10 and 45 percent, they get a 12 percent parenting expense adjustment (deduction) off the basic child support calculation
- If a noncustodial parent has between 45.1 percent and 50 percent parenting time, then parenting time is seen as equal for the purposes of child support and a different formula is used.
- If there is no court ordered parenting time, then no parenting expense adjustment is included in the basic support calculation, unless the court orders parenting time in the same hearing.
- Nonjoint Child Deduction. Under current law, parents who have nonjoint children living in their home get a deduction when figuring out gross income for child support.
A nonjoint child is the legal child of one of the parents in the child support case, but not both parents. For this definition, a legal child is a child that the parent has a legal responsibility to support and is living primarily in the parent’s home who is claiming the nonjoint child deduction.
Parents who have child support orders for other children don’t qualify for the nonjoint child deduction because these children are not living in their home. Also, they already get a deduction in the gross income calculation for the child support orders they have for other children.
- An example of when a parent could get a nonjoint child deduction: a mother is divorced and has a child from that marriage living with her. The court is now deciding child support for a new child that the mother has with a different man. In this case, she would get a deduction for 1 one nonjoint child - the child from her previous relationship that lives with her.
- Children that do not count as nonjoint children include: a stepchild, or a child of a significant other living with the parent for whom child support is being decided, or a child for whom the parent’s rights have been terminated.
- You can get the for up to 2 nonjoint children. So, if a father is divorced and has 4 children from that marriage living with him, he can only get a deduction for 2 of the children.
- Minimum Orders and Self Support Reserve.
The law includes a “self-support reserve” for the parent who owes child support (the obligor). The self -support reserve is an amount of money set aside so that the obligor has some money to pay for basic living expenses. This reserve amount is set by law at 120 percent of federal poverty guidelines for one person.
If the obligor's gross income is greater than 120 percent of the federal poverty guidelines, but not enough to pay all the child support he is calculated to pay, then the court reduces support until the support order is equal to the obligor's income available for support. This leaves the obligor at 120 percent of federal poverty guidelines for his own expenses.
If the obligor's gross income is less than 120 percent of federal poverty guidelines for one person, the court must order a minimum basic support order (but not medical or child care support). The minimum basic support order for children pf the same parents is $50 a month for 1 or 2 children, $75 a month for 3 or 4 children, and $100 a month for 5 or more children.
If the court decides that a person has no income and completely lacks the ability to earn income, then the minimum support does not apply and child support may not be ordered.
Also, minimum support orders don’t apply to someone in jail or prison unless he has income and assets to pay support.
- Financial Affidavit
A financial affidavit is a paper that lists all sources of gross income (before taxes) for purposes of child support.
Parents must serve all parties with a financial affidavit and file it with the first court papers determining child support. For parents who were never married, the first court papers could be a custody summons and petition or a notice of motion and motion to establish custody and parenting time. If custody is not part of the court action, the first court papers could be a notice of motion and motion to establish child support or response to such a motion.
- Click “Get Forms”
- Click “Family”
- Click on the packet “Financial Affidavit for Child Support”
If the financial affidavit is not served on the other parent or parties (including the child support office if they are involved with the case) and filed with the court at the start of the court case, the court may disregard your information and base the child support order on other evidence before the court, or base an order on what an obligor could potentially earn.
The instructions tell you what you need to include with your financial affidavit, like proof of income or other documents.
- 6-month Review Option. Current law lets either parent ask for a 6-month review on child support and/or parenting time. They can ask for the review after a divorce, legal separation, or court order that first decides child custody, parenting time, or child support rights and obligations of parents.
This form to ask for a review is attached to your order that decided the rights or obligations. If a parent asks for the 6-month review hearing, the court must review:
1) if child support is current and
2) if both parents are following the parenting time rules of the order.
Remember: This is not a hearing to change child support or parenting time, but a hearing to look at how the order is being followed.
What do they mean by “party” in a child support case? +
A “party” in a court case is generally someone who is part of the court case and whose rights may be affected by the outcome of the case. In child support cases, the parents are usually the “parties.” Many times, the child support office is also a party to the case. The child support office is a party to the case if public assistance money (MFIP, Medical Assistance, etc.) is being spent on the child or was spent in the past on the child. The child support office is also a party if a parent applied to the child support office for help. Other people could also be a party in a child support case, like a grandparent who has custody and wants child support from the parents.
Why does it matter who is a party to the case? +
Notices about court hearings have to go to all parties to the case. All parties also have to be served with copies of all court papers. If the child support office is a party to the case, they must get notice of the hearing and be properly served with the court papers for the hearing.
Sometimes, a parent forgets to let the child support office know about a scheduled a hearing or they don’t serve the child support office (when they are a party to the case) with the court papers. If all parties are not notified or served properly for the hearing, the court could dismiss your request. Then, you have to start all over from the beginning and re-file and re-serve your papers and get a new hearing date.
If you don’t serve all the parties with the financial affidavit the court could do things like not take into account your information in deciding a child support order. They could use other information they have about your financial situation that might be wrong. See the section on financial affidavits.
Modifying or Changing an Existing Child Support Order +
To get a new court order, a parent or party must file a motion and have a legal basis for a new court order.
But, if you have an order to pay child care costs, and the child is not in child care anymore you can get the costs suspended without going to court if you give proof to the county. Child care costs can also be restarted without going to court.
A parent has a legal basis to change a child support order if there are changes that make the order unfair. Like any of these things:
- A big increase or decrease in the income of either parent
- A big change in need (increase or decrease) of either parent or the child
- Getting public assistance
- A change in the cost of living for either parent (this is measured by the Federal Bureau of Labor Statistics)
- Extraordinary medical expenses for the child that were not covered in the medical support order
- A change in availability of health coverage or a big increase or decrease in the costs of health care coverage
- New work-related or education-related child care expenses of the obligee. Or a big increase or decrease in current work-related or education-related child care expenses
- Emancipation of the child as defined in child support law
There are some situations when the court assumes there is a big change in circumstances and that a child support order is unreasonable and unfair. For more information, see the booklet, Understanding Child Support from the MN Department of Human Services.
The child support agency has to get a child support order when there is public assistance +
Sometimes the parent with custody gets financial help from the government, called “public assistance,” to pay some of the costs for the child.
Public Assistance in Minnesota are things like MFIP (Minnesota Family Investment Program), child care assistance (day care subsidy), Medical Assistance, MinnesotaCare, and IV-E foster care.
If a parent with physical custody of a child gets some type of public assistance, that parent has to work with the child support agency to help establish paternity for the child and set a child support order.
The only time a parent might get a waiver to this rule is because of a situation of family violence.
This means that many custodial parents don’t have a choice about child support “going after” the other parent. The government is also required to start a child support case against the noncustodial parent when public assistance is involved.
The child support agency has to establish paternity before a child support order can be set +
The first thing the county child support agency has to do when starting a child support case with unmarried parents is to make sure paternity is decided. If paternity is not decided, the county must work to get paternity decided. This can be done voluntarily by both parents signing a Recognition of Parentage (ROP) or by filing a paternity action in court.
If paternity is decided by an ROP and public assistance is involved, a child support proceeding will almost always be started by the child support agency. If paternity is decided in court, the court will usually set a child support order at the same time. You can ask for genetic testing before signing an ROP or when going through court to decide paternity.
If you have an open child support case with the county and it is trying to establish paternity, the county must pay for the genetic test for you. Some counties won’t make you pay back the cost of genetic test, or the cost they ask you to pay is much less than if you paid for a genetic test yourself.
If public assistance is not involved, the custodial parent can still ask the child support agency to help them get child support from the noncustodial parent.
What about child support when it is not court ordered? +
Whether public assistance money is involved or not, you can be held responsible for back child support. It can be for up to 2 years before the start of a court action or dated back to the birth of the child, whichever comes first. You can also be required to pay part of the costs of genetic testing and for part of the mother's birthing costs.
Plan Ahead! Don’t start out with child support debt when a child support order is first set. +
Sometimes fathers give cash or things like diapers, food or clothes to the mother as child support. This is “informal” child support meaning there is no court order. If a child support order is set by the court later, these things won’t count when the court looks at what amount you should pay for back child support.
As an unmarried father, you can try to avoid large back payments if you plan ahead. The best thing to do is to pay informal child support by check or money order directly to the custodial parent. Make sure you keep copies and records so you have proof you paid. Clearly write on it that it is child support for a specific month. Then the court may count it.
Remember, never pay cash directly to the mother or buy the child things, hoping that it will later count for child support. The court almost always sees things like diapers, clothing, and food as gifts, both before and after a child support order is set.
If you plan to pay child support to the custodial parent before court-ordered child support is set, check with your local child support agency to make sure that you can get credit for it in court.
You can also contact the child support agency to open a child support case or see if there is already an open case for you. A father, just like a mother, can ask for a child support case and ask that his child support be paid through the child support agency.
If your child's mother is getting public assistance, and you want to pay support for the child, contact the county child support agency. If you are living with your child's mother while she is getting public assistance, it should be reported to the public assistance agency that you are living there. If you live with your child's mother while she gets public assistance but it is not reported, the public assistance may be cut off and you and the mother could be charged with fraud.
Why can't I get my parenting time or custody issues decided at child support court? +
Child support hearings are usually in front of a child support magistrate who can’t decide disputes about parenting time and custody. A child support magistrate is a decision-maker, like a judge, but they only hear cases about child support. They don’t have the power to hear and decide many kinds of disagreements.
The only time a child support magistrate can decide an issue with parenting time and custody at a child support hearing is when the child support hearing is part of a hearing to establish paternity. Then the child support magistrate can issue an order about those issues if the mother and father AGREE on them. Issues like custody, parenting time, or the name of the child.
If there is an action to decide paternity in front of a child support magistrate, and one side raises an issue about custody or parenting time in the papers that are served before the court hearing, and the other side FAILS TO APPEAR OR RESPOND, then the magistrate can issue an order about the things that the party raised. If you and the mother can’t agree on custody, parenting time, and/or the name of the child, the child support magistrate should issue an order for the issues you do agree on. Then they may order temporary support, and refer the rest of the issues to a district court judge for another hearing. A district court judge can make decisions about custody, parenting time and the child’s name, even if you and the mother don’t agree.
If you had a paternity action brought against you or you plan to bring one yourself in District Court (not with a child support magistrate), then the judge may order child support at the same time. The judge may also decide parenting time and custody issues.
As a general rule, if you file a motion or have a hearing because of child support, only child support can be addressed and not parenting time or custody. However, if you have a motion in district court for parenting time and/or custody, child support issues can also be raised and decided at the same time.
What happens to my child support order if I lose my job or am making less money? +
Nothing! The amount you are ordered to pay in child support stays the same UNTIL a court order says differently.
You can send a letter to the county child support office asking them to help you modify (change) your child support order. You can also call them and ask for a change. However, it may take 6 months or longer to get your order changed through the county child support agency. Sometimes the child support agency can’t help you. In any case, it is always the responsibility of the person who owes the money to ask the court to change the child support order when necessary.
If you lose your job or need to modify your order because of a substantial change that makes your prior order unfair, you must bring a motion to modify child support. A judge or child support magistrate can’t go back in time and change past amounts of child support that you were supposed to pay but could not. They can only change the amount you are ordered to pay in the future. They can start this new amount from the date that your motion to modify your child support order was served on the other parent and the county child support office, if they are a party to the case.
This means that you must take action right away if your circumstances change and you think that your child support order needs to be changed. Waiting to do something will only add to your child support debt. Remember: it is your job, not the job of the mother of your child or the county, to change your child support order.
So, how do I change my child support order? +
- Click “Get Forms”
- Click “Child Support”
- Click Packet “Motion to Modify Child Support”
Make sure you read the instructions carefully.
There is a do-it-yourself online tool to complete a Motion to Modify Child Support.
- Click “Motion to Modify Child Support or Spousal Maintenance.”
But remember—if your child support order is changed by the court, the new amount you owe can only start as early as the date the motion was served on the other party (and county child support agency, if it is a party to the case). It will not change past amounts.
What happens if I quit my job and can't find another one? What happens if I want to go back to school? +
You can still bring a motion to modify child support but the magistrate or judge who hears your case may not modify your order if they find that you could get a job to meet your needs and your child support order. Also, a magistrate or judge may not modify your order if they find that you are voluntarily unemployed or underemployed. You won't be considered voluntarily unemployed if:
1. the change will only last for a short time (it is a temporary change) and you will be making more money because of the change or
2. the unemployment or underemployment represents a bona fide career change (not just a way to get out of paying child support) and that this career change is better for the child in the long term than the short-term impact on the child because of a lower child support payment.
It is your burden to prove that either of these things is true. In other words, simply quitting a job because "I don't like it" is not going to be a good enough reason to modify your order. Also, deciding to go back to school may also not be a good enough reason to modify your order, or modify it as much as you think it should be modified.
How can I get my child support debt to go away? +
Once you have child support debt, called arrears, it will not go away until it is paid off or until it is “compromised” (forgiven). The debt will be there forever—even when your children are grown and have children of their own. Your child support debt does not end just because your children become adults.
The only exception to this is if you get your arrears legally forgiven. You owe your child support debt to either the custodial parent or the government (or in some cases you may owe them both). If you owe child support debt to the custodial parent, the custodial parent can agree to forgive the child support debt you owe her. The government can also forgive debt that you may owe it, in some cases.
Contact your county child support agency for more information about “arrears forgiveness.” Agreements to forgive child support arrears must be in writing and go through the child support agency and/or court.
How can I get the interest stopped on the child support I owe? +
If you pay your full monthly child support order and any monthly back ordered amounts of child support, on time, for 12 months straight (no breaks), you can file a motion with the court or ask the county to stop the interest. They can do this for as long as you continue to pay the full amount that you owe each month. There are a few other circumstances in which the court can stop interest.
Contact the child support office for more information.
What happens if I don’t pay my child support? +
The child support agency has many ways to try to get parents to pay their child support orders. Some things that could happen to you if you are not paying your child support order include:
- suspension of your driver’s license
- suspension of your fishing or hunting license
- suspension of your occupational license (such as realtor’s license or barber’s license)
- denial of your student grant application
- taking money from your bank accounts or other accounts (only up to the amounts you owe)
- taking your state and federal tax refunds (only up to the amounts you owe)
- contempt of court (possible jail)
- denial of your passport application
- criminal prosecution
Each of these things have different rules that apply to them. For example, before they can have your driver’s license suspended, you have to owe at least 3 months of child support and not be following a payment plan. The child support office has to give you notice that they intend to suspend your license before it is suspended. That notice is mailed to your last known address.
This is one reason why it is very important that you let the child support office know every time that you move. Or you may not get the important notices they send you.
For more information about things the child support office can do to enforce child support orders, read the Understanding Child Support booklet from the MN Department of Human Services or contact your local child support agency.
The phone number and address for your county child support agency is listed in the phone book.
You can also find it at www.mn.gov/dhs.
- Click “Topics A-Z” (at the top right of the page)
- Click “Child Support”
- Click “Contact Us” then click “county child support office”
- Click on the link to your county child support agency in the list
Remember: Child support agencies don’t represent just one parent. They are there serve both parents on behalf of the child. The child support agencies have a lot of educational material about child support.