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Rights and Responsibilities of Unmarried Parents

Authored By
Education for Justice

This booklet will help you understand your rights and responsibilities as a parent. Your child deserves the best you can offer, including the love, attention, support, and understanding of BOTH parents.

Even if there are disagreements between parents, the child has a right to shared parenting when both parents are able to provide it. It is best for the child to be taken care of by both parents. Major decisions should be made by both parents so they can both lend their experience and judgment to a situation. The child does not lose these rights when the parents are not married.

Child Support, Medical Support, and Childcare Support

Child Support has 3 parts: Basic Support, Medical Support, and Childcare Support

Child support is a court ordered award of money for the care and support of the children.  It is paid by the parent who does not have physical custody of the children. If the parents share equal custody, the parent with the higher income pays child support.

Child support has three parts - basic support, medical support, and childcare support.

The child support order can be part of the paternity order or made in a separate legal action for child support if there is an ROP already signed.

Child support is ordered after paternity is decided with an ROP or a Paternity Adjudication.  It can cover up to 2 years before the legal action was started.  The legal standards for deciding on basic support, medical support, and childcare support are the same in a paternity proceeding, a separate action for child support, and in a divorce proceeding. The amount of support is calculated based on the Minnesota Child Support Guidelines. The order usually sets up automatic withholding from the payer’s income.

The non-custodial parent must pay child support even if there is no parenting time or if the custodial parent is denying parenting time rights. For more information on child support, see the “Child Support Basics” booklet.

A non-custodial parent cannot avoid the obligation to pay child support on the grounds that he was under 18 at the time the child was born.

If I have an ROP, can I start a court action for child support?

Yes. An ROP by itself does not include anything about child support.  But if you have an ROP you can use it to go to court to get child support.  The parent who does not have custody (or if the parents share equal custody) and has the higher income, will be ordered to pay child support. Child support includes basic support, medical support, and childcare support.

If both parents agree about custody, parenting time and child support, there is a process that lets you file your written agreement and a copy of the filed ROP with the court for approval.

Does Legal Custody affect child support?

No. Legal custody does not change the way child support is determined. But joint physical custody does change the way child support is determined. 

Does Parenting Time affect child support?

Yes. Parenting Time, generally calculated by the number of overnights a child spends with each parent, may result in an adjustment to basic child support. If Parenting Time is equal or close to equal, a different formula is used. See the booklet “Child Support Basics” for more information about child support and parenting time.

Medical Support

Both the custodial and the non-custodial parent can be ordered to provide medical support. Medical support includes covering the child with health insurance and paying toward premiums, co-pays or other uninsured or un-reimbursed medical expenses.

Whenever a court makes a decision about child support, it must also make an order about medical support. If the child gets Medical Assistance or MinnesotaCare, the court order will also include reimbursement for this public assistance.

See the booklet “Child Support Basics” for more information about medical support. 

Childcare

If the parent with custody has childcare costs while working or going to school, the non-custodial parent may have to pay a share of these childcare costs.

Each parent will be ordered to pay a share equal to that parent’s share of the combined income.

See booklet “Child Support Basics” for more information about childcare support. 

How can I get help to establish child support?

The county child support office will help either parent establish paternity, child support or medical support.  They can also help with other child support matters. If a parent gets public assistance, the child support case is started automatically. If a parent does not get public assistance, the parent must apply and pay the child support agency a one-time application fee of $25. The county attorney represents the county agency, not either parent. The county’s goal is to establish paternity (by Recognition of Parentage or by court action) for all children and to help set up child support. The county will not help you with custody or parenting time issues. Contact your local legal aid office for help with custody and parenting time.

There may be fees if you do not get any public assistance. Ask about those fees.

The child support office can help you find a missing parent to establish paternity (if a child was born outside of marriage) or to start a child support case.

If you believe you or your child could be harmed by starting a paternity or child support case, you do not have to apply for services or can stop any action already started.  If you get public assistance, you can apply for a “good cause” exemption and you will not have to cooperate with the child support office. Tell your worker about domestic violence (threats, fears, or harm) and ask for a “good cause” exemption.

What about public benefits?

A parent or other relative that has a child living with them may apply for and get public assistance without needing a custody order.  An income eligible parent that has the children living with them may apply for and get MFIP (the Minnesota Family Investment Program), Medical Assistance, and childcare assistance. 

What about tax deductions?

IRS rules say the parent that the child lives with more than 50% of the time may claim the child as a dependent for their tax returns. Or that parent can sign a form giving that right to the other parent. This is called an exemption. The IRS (and State) tax rules apply.  In a child support determination, the court can look at the financial situation and then order one parent to sign the form giving the exemption to the other. 

Who decides what the child’s last name will be?

At the hospital, the mother can choose the child’s last name. The parents must agree to keep or change the child’s last name when they sign the ROP.

As part of a Paternity Adjudication, the court must make an order about the child’s name. If the parents do not agree, the court will decide what name is in the child’s best interest.

Rights and Responsibilities of Parents After Paternity is Established by Court Order

What is custody?

There are 2 parts to custody

  1. Legal Custody
  2. Physical Custody


Legal Custody could be called “decision-making custody.” This custody involves the right of a parent to make major decisions about the child’s life, such as

  • where home is
  • schooling
  • religion
  • major medical care

The court can give legal custody to one parent or to both parents together.  This is called joint legal custody.  Joint legal custody means both parents have equal rights in making major decisions. The court prefers that parents have joint legal custody, unless there has been domestic abuse.

Sole legal custody means one parent makes these decisions.

Whether legal custody is sole or joint, both parents have the right to be informed about the child’s schooling, medical care, and other major decisions.  Both parents can attend school conferences, attend medical appointments, have reasonable telephone contact with the child, etc.

Physical Custody

The parent that the child lives with has physical custody. Joint physical custody means that the child lives part of the time with each parent and both parents schedule where the child lives. It does not necessarily mean that the child spends 50% of the time with each parent.

If the parties do not agree about custody and the court must decide, it looks at 12 factors to decide what is in the best interest of the child.

1. The child’s physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s need and development.

2. Any special medical, mental health, or educational needs that the child may have that require special parenting arrangements or access to recommended services.

3. The reasonable preferences of the child, if the court deems the child to be of sufficient ability, age, and maturity to express and independent, reliable preference.

4. Whether domestic abuse has occurred in the parents’ or either parent’s household or relationship; the nature and context of the abuse; and the effect of abuse on the child’s safety, well-being, and developmental needs.

5. Any physical, mental, or chemical health issue of a parent that affects the child’s safety or developmental needs.

6. The history and nature of each parent’s participation in providing care for the child.

7. The willingness and ability of each parent to provide ongoing care for the child; to meet the child’s ongoing developmental, emotional, spiritual, and cultural needs; and to maintain consistency and follow through with parenting time.

8. The effect on the child’s well-being and developmental changes to home, school, and community.

9. The effect of the proposed arrangements on the ongoing relationships between the child and each parent, siblings, and other significant persons in the child’s life.

10. The benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time and the detriment to the child in limiting parenting time with either parent.

11. Unless there is abuse, each parent’s ability to support the child’s relationship with the other parent and to encourage and permit frequent and continuing contact between the child and other parent.

12. The willingness and ability of parents to cooperate in the rearing of their child; to maximize sharing information and minimize exposure of the child to parental conflict; and to utilize methods for resolving disputes.

Can custody be changed after the court has made its order?

Yes, custody can be changed. But, once the court makes its first decision about custody, that decision controls what happens and is very hard to change later. The court can only look at facts that have changed since the prior order. The court may change custody

  • if both parents agree to the change, or
     
  • if the custodial parent has let the child become part of the other parent’s home, or
     
  • there has been a big change of circumstances and the child’s present custody harms or  endangers the child, or
     
  • if the parent with custody has denied or interfered with parenting time (parenting time problems are usually not enough to change custody).

Rights and Responsibilities of Each Parent When They Sign an ROP

When parents sign a Recognition of Parentage (ROP), it does not establish custody and parenting time.

After an ROP is signed, the mother has the same sole legal and physical custody she had before the ROP was signed.  If the father wants any custody or parenting time, he has to ask the court for an order. This court action is not a paternity action but is about custody under a different law. The court will then decide custody or parenting time using the same “best interest” standard used for the paternity order. 

We have a signed an ROP and are now going to a child support hearing before a magistrate. Can the magistrate make decisions about custody?

No. The special expedited process for child support cannot make any decisions about custody or parenting time. If you want to have custody decided by a court, you must let the other parties (the other parent and the county) know by properly bringing an action for custody and asking to have the matter heard in district court. District Court has the power to make decisions about both child support and custody.

We have a signed an ROP and we are now going to court about domestic abuse. Can the court make some decisions about parenting time?

The court can decide/set parenting time in an Order for Protection proceeding. The safety of the children and the person asking for the OFP must be considered by the court.

Parenting Time

What happens with parenting time when a court decides paternity?

When a court makes a decision about paternity, the court order is also supposed to have decisions about custody and parenting time.

When the court makes decisions about parenting time, it looks at letting the child and the non-
custodial parent to keep up a relationship, if that is in the best interest of the child. The court should consider the age of the child and the type of relationship the child had with that parent before the legal action began. The court can order a specific schedule for parenting time or leave it very broad and general by calling it “reasonable parenting time.”  If the court finds that parenting time is likely to harm the child physically or emotionally, the court can restrict or condition parenting time. Restrictions can be things like: 

  • making a rule that another adult has to be there to supervise parenting time
  • making a rule that the parent has to be sober
  • limiting the parenting time to a place such as a child safety center where trained individuals are present.

Reasonable Parenting Time

Sometimes the “Judgment and Decree” (court order) states that the parent without custody will have "reasonable parenting time."  The parenting times are not set and the parties must make their own plan for visits.  The plan can change from time to time if the parents agree.  The parent who has custody has the final decision, but must be fair in allowing parenting time to the non-custodial parent. This works well when both parents get along well enough to plan the visits and set the times. If parents have conflicts, a parenting time schedule is better than “reasonable parenting time.” 

Scheduled Parenting Time

If the parents cannot agree, the court may schedule parenting time by court order. For example, parenting time may take place on weekends and holidays, during a part of school vacations and for a longer time during the child's summer vacation.  Parenting time can also be during the school week.

You may ask the court to order a law enforcement officer or another person to come along to make sure parenting time rules in the court order are followed. But this is not a permanent solution. If the pick-ups and drop-offs of the child cannot happen safely or as ordered on a regular basis, the court is likely to order a more restrictive exchange plan or location. If law enforcement or another person is needed, the court order needs to say this.

Additional Parenting Time to Provide Childcare

Additional parenting time may be given to the non-custodial parent to provide childcare while the custodial parent is working.  This kind of plan has to be fair and in the best interest of the child.  In looking at if this additional parenting time/childcare time should be given, the court will look at

1.  How well the parents can cooperate
2.  Methods for solving arguments and about the care of the child and the parents' willingness to use those methods, and
3.  If there has been domestic abuse between the parties.  

Courts cannot lower child support payments because they order this kind of childcare.

Parenting Time Expeditor

The court can appoint a "parenting time expeditor." This expeditor is a neutral person who will help solve problems about parenting time. Expeditors may not be available in all counties.  If an agreement is not reached, the expeditor will make the decision.  The decision of the parenting time expeditor is "non-binding."  This means that the court can change the decision if either party brings a motion asking the court to resolve the dispute.  The decision is "binding" (has to be followed) until changed by the court. 

If a problem comes up, the expeditor will meet with the parties.  The parties may also agree to meet with a mediator, social worker, or someone who can help them reach an agreement.  If no agreement is reached, the parties may go back to court.

The court cannot make you have your parenting time problem settled by a parenting time expeditor if

  • you claim to be the victim of domestic abuse by the other parent, or
  • the court finds that you or your child have been physically abused or threatened by the other parent.     

You and the other parent will have to pay for the expeditor.  The court will decide how much each of you will pay before appointing the expeditor.  If you cannot afford to pay the expeditor’s fees, and the other parent doesn't agree to pay, your parenting time problem will not be sent to an expeditor.

Restricted or Supervised Parenting Time

The court may restrict parenting time if the parent asking for parenting time might harm the children.  Harming the children might be physical, emotional, or by kidnapping. The court can limit the hours of parenting time or limit the place where parenting time can take place.  The court can order that the child only visit when another person is there.  This is called supervised parenting time.  In some cases, parenting time may be denied altogether. The court can also order that the pick-up and drop-off of the child take place at a safety center to protect the custodial parent.

If a parent asking for parenting time has been convicted of certain crimes, that parent must convince the court that parenting time with the child is in the child's best interest.  These crimes include assault, sexual abuse, parental kidnapping, terroristic threats, felony harassment, domestic assault by strangulation, and stalking. Ask your lawyer if these laws apply in your case.

Moving Out of State

When parenting time rights are granted, the custodial parent cannot move the child to another state without getting permission from the other parent.  If the other parent will not give written permission for the move, the custodial parent must ask for permission from the court.

Once the court makes a decision about parenting time, can that order be changed?

Yes. The parenting time order can be changed if the situation changes and a new order is needed for the child’s best interest. Changing parenting time rules is easier than changing custody orders.  This is because the court just looks at the best interest of the child and does not have to look at if the current parenting time actually endangers the child. The court administrator’s office has forms for the public to use (called pro se forms) to ask the court for parenting time changes without a lawyer. You can also contact your local legal aid office for help.   

We signed an ROP. What are each parent’s parenting time rights?

If the father wants a legal right to visit, he has to bring a separate legal action for parenting time. The parents may agree about parenting time but there is NOT a legal right to enforce that agreement. Please read the sections about custody after an ROP is signed, since much of the same procedure applies when looking at parenting time. The court will also use the same legal standards to decide parenting time for any reason—after an ROP in a paternity action or in a divorce action.

Voluntary Parenting Plans

The law allows parents to come up with their own “Parenting Plans.” This Parenting Plan takes the place of separate custody and parenting time orders.  A Parenting Plan may include issues about the children that are not part of the ordinary custody and parenting time orders. A Parenting Plan includes a schedule of the time each parent spends with the child, a description of which responsibilities each parent has regarding the child and a description of how conflicts will be resolved. The court must approve this plan and it must be in the best interest of a child (see factors on pages 11 and 12).

Parents agreeing to a Parenting Plan may use terms other than “physical” and “legal” custody, as long as the terms are well defined. Parents must still write down that custody is joint legal or joint physical or sole legal or sole physical custody.

If parents do not agree to a Parenting Plan, the court may create one for the parents. If there has been domestic abuse by one parent against the other parent or the child, the court cannot create a Parenting Plan on its own motion.

Minnesota Father’s Adoption Registry

The Fathers' Adoption Registry is a record of “putative” fathers who voluntarily register any time before their child's birth or within 30 days of the birth. It applies to children born on January 1, 1998 or later, but not before then. A “putative father” means a man who may be a child's father, but who

  • is not married to the child's mother on or before the date that the child was or is to be born and
  • has not established paternity of the child in a court proceeding.

If adoption proceedings begin for the child, and if the father has placed his name on the registry, the court can find the father so he can participate in the adoption proceedings.

For more information about the adoption registry go to the Minnesota Department of Health’s website here: http://www.health.state.mn.us/divs/chs/registry/top.htm

Recognition of Parentage Form

For the voluntary Recognition of Parentage Form and instructions, visit the DHS website here: https://edocs.dhs.state.mn.us/lfserver/Public/DHS-3159-ENG. The form is also included as a PDF on this webpage.

More Information

For information about related topics, please refer to the following booklets: Getting a Divorce, Child Support Basics, and Orders for Protection and Harassment Restraining Orders.