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Rights and Responsibilities of Unmarried Parents

Authored By
Education for Justice

This booklet helps you understand your rights and responsibilities as a parent in Minnesota. Every state has different laws on family law. This guide is for Minnesota only.

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, your child has a right to shared parenting when both parents are able to provide it.  It is best for your 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. Your child does not lose these rights when their parents are not married.

Chapter 2. Recognition of Parentage (ROP)

What is the Recognition of Parentage (ROP) ?

A Recognition of Parentage (ROP) establishes a legal relationship between the child and the father.  A ROP is a form that establishes that a man is a child’s legal father. 

Quick Facts about a ROP

  • A ROP is an agreement recognizing the child’s biological father.
  • It is a form signed by both parents, notarized and filed with the MN Department of Health, Office of Vital Records.
  • It legally establishes paternity when the father is not married to the mother.  If the mother is married, see the section “What if the mother was married when she was pregnant or when the child was born?”
  • It is an informal process that does not involve going to court.
  • It allows the father’s name to be on the birth certificate.
  • It creates certain legal rights and responsibilities for the father, mother, and child.

A ROP can be filled out and signed at any time. But it is only valid when it is filed with the Minnesota Department of Health, Office of Vital Records.  You do not need a lawyer, but it’s a good idea to talk to one before you sign to make sure you understand how it will affect your rights.

A ROP is as serious and final as a court order “adjudicating” (establishing) paternity. When signing a ROP, each parent is giving up the right to genetic testing to find out if the man is the child’s biological father. The father is giving up his right to a court trial about paternity. Both parents give up their right to a lawyer. If you are not sure, do not sign this important legal document.

If either parent is under 18 years old when signing the ROP, then the ROP is only a “presumption of paternity” if paternity is later challenged in court.

Where can I find the ROP form?

You can get the ROP form from your child support office or online: https://edocs.dhs.state.mn.us/lfserver/Public/DHS-3159-ENG. Read the instructions and fill out the form. The form has to be signed in front of a notary. This form is included at the end of the printed version of this booklet.  

Does signing the ROP give custody or parenting time rights?

No. The ROP does not automatically give the father any right to custody or parenting time (visitation).  But it does give him the right to ask a court for custody or parenting time. 

After signing a ROP, the mother continues to have sole legal and sole physical custody of the child. Only a court order can change this.

What if the mother was married when she was pregnant or when the child was born?

If the mother was married when she was pregnant or when the child was born, it is taken for granted that her husband is the child’s legal father.  This is called a “presumption of paternity”.  If the husband is not the biological father and he wants to give up his presumption of paternity, he can sign a form called “Spouse’s Non-Parentage Statement” and file it with the MN Department of Health. 

You can get the Spouse’s Non-Parentage Statement and instructions here: https://edocs.dhs.state.mn.us/lfserver/Public/DHS-3159C-ENG.  Read the instructions and fill out the form.  The form has to be signed in front of a notary.

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 child’s legal father. If the Husband’s Non-Parentage Statement is not signed within 1 year, then a court action is necessary to decide who the legal father of the child is. 

I signed a ROP but now I am not sure I should have. Can I cancel it?

Anyone who signed a ROP can cancel it within 60 days. This is called a revocation. A revocation must be in writing, notarized, and filed with the MN Department of Health, Office of Vital Records. It must include:

  • the child’s name and date of birth,
  • your name, and
  • the other parent’s name.

The mother or the man who signed the ROP can cancel (revoke) the ROP within 60 days.  You can find a revocation form here: https://edocs.dhs.state.mn.us/lfserver/public/DHS-3159B-ENG. A special form is not required.   

After 60 days, only a court can cancel the ROP. The person who signed the ROP, the public authority (the child support office), or the child may bring a court action to “vacate” (cancel) the ROP. The action must be brought within certain time limits:

  • The mother, father, or mother’s husband must bring the action
    • within 1 year of signing the ROP 
      OR
    • within 6 months of getting genetic test results that show the man that signed the ROP is not the biological father.
       
  • The child must bring the action within 6 months of the genetic test results or within 1 year of becoming an adult (by age 19), whichever is later.

The person bringing this action must show there was fraud, duress or material mistake of fact.

What if we signed a ROP and we AGREE about custody, parenting time and child support?

If both parents agree, there is a process that lets you file your written agreement and a copy of the filed ROP with the court for approval.  The written agreement is called a Joint Petition.  The Joint Petition must include your agreements on all issues of custody (legal and physical), parenting time, and child support (basic, medical, and child care).  The court has forms you can fill out and file with the court:

  • Go to www.mncourts.gov
  • Click on “Get Forms” on the menu
  • Click on “Child Custody/Parenting Time”
  • Click on “Joint Petition to Establish Custody, Parenting Time, Child Support”

If you need help getting your agreement approved by the court and made into a court order, contact your local legal aid office, county child support office, or other providers in your area who may be able to help.

Can the court make custody or parenting time decisions in an Order for Protection?

If you signed a ROP and you are now going to court for an Order for Protection (OFP) hearing, the court can make temporary decisions on custody and parenting. The safety of the child and the person asking for the OFP must be considered by the court.

For permanent decisions on custody and parenting time, either parent can start a custody action in court.

If I signed a ROP, can I be on my child’s birth certificate?

When the parents sign the ROP in the hospital, the father’s name is automatically on the birth certificate. If you sign the ROP after leaving the hospital, the father’s name can be added to the birth certificate. You can add the father’s name through the MN Department of Health, Office of Vital Records. There is no fee to update the child’s record.

For more information, call the Office of Vital Records at 651-201-5970 or visit the MN Department of Health’s website at: https://www.health.state.mn.us/people/vitalrecords/index.html.

Chapter 3. Paternity Adjudication

What is a Paternity Adjudication and why is it important?

A Paternity Adjudication is a court order that says who the child’s legal father is. It establishes a legal relationship between the child and the father.  It is the way (other than a ROP) to establish paternity. 

A paternity adjudication may be necessary if:

  • a parent does not want to sign the ROP

  OR

  • more than one man claims to be the father

  OR

  • the mother was married to someone other than the biological father when the child was born.

The court looks at the evidence to decide who is the child’s legal father.  This includes genetic testing and the past relationship between the mother and the possible father.  You can ask for a genetic test, but you do not HAVE to have one to establish paternity. 

The paternity order should also decide custody, parenting time, child support, and the child’s legal name.

Who can bring a paternity action to court?

These people can bring a paternity action:

  1. the child’s mother
  2. a man alleged or presumed to be the child’s father
  3. the county child support office
  4. the child (by an adult on their behalf)
  5. a child’s grandparent if the grandparent’s child (the mother or father of the child) is dead or is a minor.

What is a presumption of paternity?

A presumption of paternity points to the likely father of the child.  It does not establish paternity.  Some examples of when a man is presumed to be the biological father are:

  • He and the mother were married when the child was born, or the child was born within 280 days after the marriage was over.
     
  • He receives the child into his home and openly “holds the child out” to be his biological child.  This means the father accepts the child and acknowledges the child as his biological child.
     
  • Genetic test results say that he is the father at a 99% or greater probability.
     
  • He and the mother of the child signed a ROP, but the mother and another man also signed a ROP.
     
  • He and the mother of the child signed a ROP, but another man is also a presumed father.
     
  • He and the mother of the child signed a ROP, but one of the parents is under age 18.
     

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.

Can a paternity action decide that someone is NOT the father?

Yes, the court can make an order saying that a man is NOT the legal father of a child.       

There are time limits to do this.  Act fast!  In some cases, a person has 2 years to bring an action after they have reason to believe a man is not the child’s father.  In other situations, a person only has 6 months to bring a court action after genetic tests show a presumed father is not the child’s biological father.

If a presumed father wants the court to declare he is not the legal father, the court action must be started before the child is 3 years old. But this time limit does not apply in all cases.         

Contact your legal aid office or talk to a lawyer if you have a question about when to bring a court action to declare a man is not a child’s legal father.

What are the steps in a Paternity Adjudication?

To start a paternity action, call the MN Statewide Self-Help Center at 651-435-6535 and ask for paternity forms.  They will email you the forms you need and instructions to help fill out the forms.

STEP 1: Fill out the legal papers

STEP 2: Serve the legal papers on the other party

STEP 3: File the legal papers with the court

STEP 4: Go to your hearing.

If the parents cannot agree, the court will schedule a hearing or trial to decide the issues. All hearings or trials in a paternity action are held in closed court.  That means only people necessary to the case are can attend the hearings.

Either parent has the right to ask for genetic testing. Parents can always come to an agreement at any time during the paternity action.

The court looks at the evidence to decide who the child’s legal father is. The court will decide paternity and issue an order naming the child’s legal father (Paternity Adjudication). The order should also decide custody, parenting time, child support, and the child’s legal name. 

If you want help starting a paternity action, contact your county child support office.  The office is also called the IV-D Unit (“Four D Unit”).  The county’s goal is to establish paternity for all children and to help set up child support.  You can find your IV-D Unit at www.mn.gov/dhs.  (For more information, see the section, “How can I get help to establish child support?”)

Can I have a lawyer represent me? What if I can’t afford a lawyer?

In any legal matter, you can always hire a lawyer to represent you or give you legal advice.

In a paternity case, you have the right to have a free, court-appointed lawyer if you are low-income. But the lawyer is only appointed to help with paternity.  They don’t represent you for the custody, parenting time, or child support parts of the case. 

There is no right to a free lawyer if the parents have signed a ROP. You can still choose to consult with a lawyer, but you have to pay for the lawyer yourself.  If a ROP is signed, contact your local Legal Aid office for advice and help. You may be able to get help for free.

Genetic Tests

Blood tests and cheek swab tests are 2 types of genetic tests done to determine paternity.  Some areas still use blood tests, but many are now using cheek swab tests. Genetic tests are highly reliable and accepted by the courts.  

Either parent may ask for genetic testing even before they start a court case.

Often genetic tests are the most objective and influential evidence in a paternity case. The courts favor using genetic tests because they are the most accurate and efficient way to determine paternity.

Once the court makes its final order, or after the ROP is signed, the right to a genetic test goes away. If you are unsure about paternity, ask for genetic testing before signing a ROP, or as part of a court action. The county child support office will assist with genetic testing before a ROP is signed or during a court action.

Chapter 4. Financially Supporting Your Child

Child Support

Child support is the money a parent pays to help support a child that does not primarily (mainly) live with them.  Every child has a right to be supported by both parents. 

The parent paying child support is called the “obligor.” The parent getting child support is called the “obligee.” The amount of child support the obligor pays depends on both parents’ incomes and the amount of time they spend with the child. The more overnights the obligor has with the child, the less support they pay.

If each parent has the child about the same amount of time and their incomes are equal, neither parent pays child support. If the parents’ incomes are not equal, the parent with the higher income may have to pay the other some child support.

Child support has 3 parts:

  • Basic support – Part of the child’s expenses like food, clothing, housing and transportation
  • Medical support – Part of health insurance and other medical/dental costs for the child
  • Child care support – Part of the child care costs when the parties work or go to school

The child support order can be part of the paternity action or a separate court case for child support if a ROP was signed.  It can cover up to 2 years before the court case was started. 

The court uses the same legal standards for deciding basic support, medical support, and child care support no matter if support is decided in a paternity action, a separate action for child support, or in a divorce case. The amount of support is calculated based on the Minnesota Child Support Guidelines.

The obligor must pay child support even if there is no parenting time or if the other parent is denying parenting time. For more information on child support, see the “Child Support Basics” booklet at https://www.lawhelpmn.org/self-help-library/booklet/child-support-basics

A parent cannot avoid paying child support just because they were under 18 at the time the child was born.

If you know how much money the other parent makes you can get an idea of how much child support a court might order by using Minnesota’s online child support calculator at https://childsupportcalculator.dhs.state.mn.us/. Read the instructions. They will tell you how to use it and what information you need.  The more information you can fill in, the more accurate it will be.  It can be confusing but might give you an idea of what to expect in court.

Medical Support

In addition to basic child support, the parents will each be responsible for part of their child’s medical and dental expenses. This amount is based on their income.  Medical support is ordered by the court to help pay for the child’s medical and dental insurance premiums.  It also includes doctor office co-pays or other medical or dental expenses not covered by insurance.

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

See the booklet “Child Support Basics” for more information about medical support at: https://www.lawhelpmn.org/self-help-library/booklet/child-support-basics.  

Child Care Support

If a parent pays for child care so they can work or go to school, the other parent may have to pay a share of these child care costs.

If the county helps with child care costs, the child care support is paid to the state, not the other parent.

See booklet “Child Support Basics” for more information about childcare support: at https://www.lawhelpmn.org/self-help-library/booklet/child-support-basics.  

How can I get help to establish child support?

Each county has a child support office.  The office is also called the IV-D Unit (“Four D Unit”).  The IV-D Unit must help you get child support.  You can find your IV-D Unit at www.mn.gov/dhs

  • If you are getting MFIP, you don’t need to apply for help from the IV-D Unit.  MFIP will send your case to the IV-D Unit.  You have to give some information to the IV-D Unit, unless there is family violence.
     
  • If you are not on MFIP, you have to apply for help.  You must fill out an application and pay a $35 application fee. Then the IV-D Unit will work on your case. 

The county attorney represents the county child support office, not either of the parents. 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.

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 an 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.

How do a ROP, legal custody, and parenting time affect child support?

ROPs and Child Support
A ROP by itself does not set child support.  But if you have a ROP you can use it to go to court to get child 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 certified ROP with the court for approval. See page 5 for more information.

Legal Custody and Child Support
Legal custody does not affect child support in any way.  The amount of child support ordered will be the same, whether the parents share joint legal custody or one parent has sole legal custody.

Parenting Time and Child Support
Parenting time does affect the amount of child support.  The more overnights the obligor has with the child, the less basic support they pay.  See the booklet “Child Support Basics” for more information about child support and parenting time: https://www.lawhelpmn.org/self-help-library/booklet/child-support-basics.  

If I have a ROP, can the Child Support Magistrate make custody decisions at my child support hearing?

No. Minnesota has a special way to handle child support.  It is called the “expedited child support process.”  The expedited process for child support is handled by a “Child Support Magistrate.” A magistrate cannot make any decisions about custody or parenting time.

In some counties, if the parents agree on custody and parenting time, the Child Support Magistrate can put those agreements in a court order.  But if parents do not agree on custody and parenting time, the father must start a case in district court to get custody and parenting time. 

Can I get public benefits to help support a child living with me?

Yes. 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 child 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.  That parent can sign a form giving the right to claim the child to the other parent. This is called an exemption.  The IRS (and State) tax rules apply.  In a child support case, the court can look at the financial situation and order one parent to take the tax deduction.  Or the court can order the parents to share the tax deduction by alternating years they can claim the child on their tax returns. 

Chapter 5. Custody and Parenting Time

When are custody and parenting time decided?

In a paternity action, after the court says who the child’s legal father is (Paternity Adjudication) the court addresses custody, parenting time, and child support.

If you have a ROP, you can ask the court to decide custody and parenting time. The court has forms you can fill out and file with the court:

  • Go to www.mncourts.gov
  • Click on “Get Forms” on the menu
  • Click on “Child Custody/Parenting Time”
    • If you and the other parent agree on everything, click on “Joint Petition to Establish Custody, Parenting Time, Child Support”
    • If you and the other parent don’t agree on everything, click on “Request to Establish Custody and Parenting Time”

What is custody?

There are 2 parts to custody

  1. Legal Custody
  2. Physical Custody
     

Legal 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 the child attends school
  • religion
  • major health 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 and duties in making major decisions. They need to agree when major decisions need to be made. The court prefers that parents have joint legal custody, unless the parties cannot work together to make decisions or there has been domestic abuse. Sole legal custody means one parent makes the major decisions.

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

Physical Custody
Physical custody means living with the child and making day-to-day decisions about the child’s care. Sole physical custody means that the child lives primarily (mainly) with one parent. Joint physical custody means the child lives with both parents and shares time between the parents.  Joint physical custody does not mean the parents will have equal time with the child.  The schedule doesn’t have to be equal for physical custody to be joint.  Parenting time is what controls how much time the child spends with each parent. 

How does the court decide custody if the parents don’t agree?

If the parties don’t agree on custody, the court must decide. The court looks at the following 12 factors to decide what is in the best interests of the child. The 12 factors are:                                                                                  

  1. The 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?  The child’s wishes may influence the court if the court decides the child is able, old enough, and mature enough to make a choice.

Note: Your child won’t be able to testify at the trial. Be very careful how you talk about the court case with your child.  It is very damaging for kids to get caught in the middle of their parents’ fights.  In some cases, a professional chosen by the court meets with your child to talk to them about their wishes.

  1. Has domestic abuse happened in either parents’ household or relationships? What are the details of what happened, and does it affect parenting or the child’s safety or needs?
     
  2. Does a parent have physical, mental, or chemical health issues that affect the child’s safety or developmental needs?
     
  3. How has each parent provided care for the child in the past?
     
  4. The willingness and ability of each parent to keep caring for the child.  How does each parent meet the child’s developmental, emotional, spiritual, and cultural needs?  Can the parent be consistent and follow through with parenting time?
     
  5. Will changes to home, school, and the community affect the child’s well-being and development?
     
  6. The relationships of the child with each parent, siblings, and anyone else who is important to the child.  Do the proposed custody plans affect these relationships?
     
  7. It is usually better for the child to spend as much time as possible with both parents.  The court looks at this and looks at if spending less time with one parent might harm the child in some way.
     
  8. Will each parent help the child have contact often and regularly with the other parent? (except when there is family violence – see #4)
     
  9. 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?

The court must write findings (reasons why they are deciding a certain way) on all of these factors.  The court must say how it decided what is in the best interests of the child.  The court must look at all the factors to make their decision, not just one.

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

Yes. The court can change custody if the situation of the child or parent changes, and a new order is needed for the best interests of the child. The court only looks at facts that have changed since the old order or facts that were unknown at the time of the old order. The court can only change custody when:

  • Both parties agree to the change OR
  • The parent with custody has let the child become integrated into (fully part of) the home of the other parent OR
  • The child’s current home is a danger to their physical or emotional health, or growth, and changing custody does less harm then staying in an unsafe home OR
  • The primary custodial parent asked the court to move with the child to another state and the court said no – but the parent moved anyway.
     

To change a custody order, the parent must bring a motion in court. The parent must have witnesses, affidavits or other documents to show one of the above reasons to change custody.

Note: A parent has to wait 1 year from the time custody is first decided before they can ask for changes. If there was a motion to modify, a parent has to wait 2 years from the time the motion is decided before they can ask for changes. It doesn’t matter if the motion to modify was granted or not.

BUT, these time limits do not apply if:

  1. A parent has again and again, on purpose kept the other parent from seeing the child, OR
  2. The child’s present home is a danger to them

How is parenting time decided?

When parents are separated, the court usually wants both parents to be involved with their child.  Parenting time is the time that each parent spends with a child.  It does not matter who has custody or what kind of custody.  Parenting time is the same as visitation.

Parenting time can be set by the court.  If the child lives primarily (mainly) with one parent, the other parent (also called the “non-custodial parent”) can be awarded parenting time.  The court can also set a parenting time schedule when parents have joint custody.  Parenting time must be in the child’s best interest.  To set parenting time, the court looks at factors such as the child’s age, the child’s safety, and the child’s past relationship with the non-custodial parent.  There are 12 best interest factors the Court must consider. See the section “How does the court decide custody if the parents don’t agree?”

In general, a non-custodial parent gets at least 25% of the parenting time.  This is calculated by counting the number of overnights in a 2-week period.  For example, 25% equals about every other weekend and one overnight a week.

Parenting Time Schedules

Sometimes the court gives “reasonable parenting time” without setting a specific schedule.  In this case the parents have to figure out a schedule on their own.  But, if either parent asks, the court has to set specific dates and times for parenting time. 

If the parents cannot agree on a schedule, the court will set a parenting time schedule. The court will consider the age of the child, how far apart the parents live, school schedule, and after school activities when setting a parenting time schedule. 

Parents can always agree to change parenting time.  For example, either parent can ask the other parent to skip a day or make it up another time.  But if the parents don’t agree on the changes, they must follow the parenting time schedule in the court order. 

Restricted or Supervised Parenting Time

The court can limit parenting time for the non-custodial parent to less than 25% if it is likely to harm the child’s physical or emotional health or emotional growth. The court can also limit parenting time if the non-custodial parent breaks the court’s order on parenting time without a good reason.

The court can limit parenting by:

  • Not allowing overnight visits.
  • Ruling it must be supervised by the other parent, a supervised visitation center or a relative.

The court can also put conditions on parenting time, like making the non-custodial parent be sober for a certain period before and during parenting time. The court can order drug or alcohol treatment.

If a parent asking for parenting time has been convicted of certain crimes, that parent must prove that parenting time with the child is in the child's best interest.  These crimes include

  • murder, manslaughter
  • assault
  • kidnapping
  • depriving someone else of custodial or parental rights
  • soliciting, inducing or promoting prostitution involving a minor
  • criminal sexual conduct
  • incest
  • malicious punishment of a child
  • neglect
  • terroristic threats
  • domestic assault by strangulation
     

This rule applies only to certain degrees of some crimes and only in certain circumstances, like if the victim of the crime was a household or family member or if the conviction happened in the past 5 years.

Additional Parenting Time to Provide Child Care

The court may give more parenting time to one parent to care for the child while the other parent works.  This kind of plan has to be fair and in the best interest of the child.  If you ask for this, the court looks at

  1. How well the parents cooperate
  2. How well the parents work together on parenting time issues
  3. If there has been domestic violence between the parents

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

Parenting Time Expeditor

The court may appoint a parenting time “expeditor." This is someone who helps parents when they have a disagreement about parenting time.  Expeditors may not be available in all counties.  The expeditor listens to both sides of a disagreement and makes a decision.

Sometimes the court orders that the expeditor’s decision is “binding” (has to be followed) unless one side goes to court and the court changes it.  In other cases, the decision is “non-binding” and does not have to be followed unless the court orders that it be followed. 

The court can’t require parents to use a parenting time expeditor if either parent claims to be a victim of abuse.

The parents have to pay for a parenting time expeditor.  The court will decide how much each parent pays before appointing the expeditor.  If a parent cannot afford to pay the expeditor’s fees, the court can’t require parents to use a parenting time expeditor.

“Guardian Ad Litem” (GAL)

A guardian is a person who acts to protect or help someone.  “Ad litem” means “for the lawsuit”.  In some cases the court may appoint a guardian ad litem to investigate and stand for the child’s best interests.  Guardians ad litem are not appointed in most paternity or custody actions.  When the court is making decisions about custody, a guardian ad litem must be appointed if the court thinks the child has been abused or neglected.   

Guardians ad litem tell the court what is best for the child in things like custody and parenting time.  They do an independent investigation.  They talk to the child, the parents and other caregivers.  They can talk in private to counselors, teachers, family members and friends, and court services and child protection workers.

They write a report to the court saying what they think the court should order.  The court does not have to do what the guardian ad litem says, but will take the report very seriously.

It is important to cooperate with the guardian ad litem.  Their report can help or hurt your case. 

Guardians ad litem may work for free or for a fee.  If there is a fee, the court says who has to pay it.  If you get MFIP or other public assistance, if you have a legal aid lawyer, or if you have a low income, you may get a reduced fee or you may not have to pay at all.

If either parent is a minor, the court will appoint a guardian ad litem for that minor parent. In this situation the court usually appoints a relative like the parent of the minor parent.

Moving Out of State

If a custodial parent (who the child mainly lives with) wants to move out of state, they have to get permission from the other parent.  The permission has to be in writing.  If they leave without permission, it is a crime and they could lose custody.  If the other parent does not agree to the move, the parents will have to go to court.

The custodial parent has to show the court that the moves is in the child’s best interests unless the custodial parent was a victim of domestic abuse by the other parent.  The court looks at several things, like parenting time agreements, the emotional needs of the child, and if the move is a plan to keep the other parent from seeing the child.  Then the court decides if the custodial parent and child can move. 

Can we change the parenting time order?

Yes. Parents can always agree to change parenting time.  But if the parents don’t agree on the changes, a parent must bring a motion to court to change the court’s order.  A parent can ask the court to change a parenting time schedule if it is best for the child.  The court can look at any changes since the last order and see if a new order is needed for the child’s best interest.

Voluntary Parenting Plans

Parents can agree to use a “Parenting Plan.” They work on writing a plan that states the time each parent spends with the child and how they are going to make decisions about the child.  The court must approve this plan and it must be in the best interest of a child. See the 12 Best Interest Factors in the “How does the court decide custody if the parents don’t agree?” section.

The Parenting Plan must have

  • A schedule of the time each parent spends with the child AND
  • Who will make certain decisions about the child AND
  • A way to settle arguments

A Parenting Plan takes the place of custody and parenting time orders.  It can be as detailed as the parents want.  For example, you can make specific communication plans or goals for parenting.  Your plan can explain the amount of phone and email contact with the child or the child’s participation in activities such as sports and music.  A parenting plan can often have more details than a typical parenting time schedule. 

The Parenting Plan may use terms other than “physical” and “legal custody.”  But, it must clearly state if the parents have joint legal custody or joint physical custody or which parent has sole legal custody or sole physical custody.

Parents do not have to have a Parenting Plan.  You and the other parent decide if you want to make a Parenting Plan. 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.

Minnesota Father’s Adoption Registry

The Minnesota Fathers’ Adoption Registry is a way for fathers to find out if a petition to adopt their 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.  If the biological father is not legally recognized (by ROP or Paternity Adjudication) he might not even find out about the adoption. 

If the father is properly registered with the Minnesota Fathers’ Adoption Registry, then he has to be notified of an adoption case for the child.  If an adoption case begins for a child, and the father has placed his name on the registry, the court can find the father so he can participate in the adoption case.

There are time limits for registering.  The father has to register during the mother’s pregnancy or within 30 days of the child’s birth.  The instructions and registration form can be found at: https://www.health.state.mn.us/people/vitalrecords/registry/docs/mfarregformac.pdf.

For more information about the adoption registry go to the MN Department of Health’s website here: https://www.health.state.mn.us/people/vitalrecords/registry/index.html