Paternity and Child Custody
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This fact sheet talks about fathers, establishing parental rights, deciding custody and what fathers can do to get time with their children.
How is paternity established? Recognition of Parentage (ROP)
“Paternity” means who is legally the father of the child. If the parents are not married when the child is born, there is no legal father until paternity is established. There are 2 ways to establish paternity.
Recognition of Parentage (ROP)
Both parents sign a sworn statement that the man is the child’s father. You use a Recognition of Parentage (ROP) form. You can get the form at the hospital when the child is born or from your county’s child support office. You can also call the Minnesota Department of Health at (651) 201-5970 and ask for a form.
To file the ROP, fax it to (651) 215-5834 or mail it to:
Minnesota Department of Health
Office of Vital Records
PO Box 64499
St. Paul, MN 55164-0499
The ROP is only valid when it is filed with the Department of Health. If the mother is not married to someone else, and the parents are at least 18 years old, this statement of paternity is final. The ROP can be done at any time. You don’t need a lawyer but talk to one if you can before you sign it, to learn how it can affect your rights.
The ROP can be used by a court to set child support. It does not automatically give the father any right to custody or to parenting time (visitation). But it does give him the right to ask a court for custody or parenting time.
The mother or the man who signed the ROP can cancel (revoke) the ROP within 60 days after it has been filed. You have to do this in writing! There is a specific form you need to ask to cancel the ROP. Get this form from the Department of Health. File it with them to make it valid. Use the same address and fax number from above. After 60 days, you can only cancel the ROP by going to court. You need evidence that the man is not the father. There are time limits to do this. Act fast!
Note: if either person revokes the ROP, this is not the end of the story. A mother or alleged father can still ask the court to establish paternity, custody, and parenting time.
How is paternity established? Paternity Order from Court
Sometimes the court has to decide paternity. One parent may not want to sign the ROP, or more than one man may claim to be the father, or the mother may have been married to someone else when the child was born. The court looks at the evidence, including genetic tests 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.
If the parents are married, the law assumes that the husband is the father of the child. If the husband or wife wants to start a court case to deny that the husband is the child’s father, then, in most cases, they must start it before the child turns 3.
Can the county attorney help me?
- If the child lives with you, you can ask the county attorney to file a case to set paternity, and child and medical support. If you are a parent who doesn’t have custody but wants to establish paternity, like an unmarried father, the county should help you in most cases. You may end up owing child support once paternity is established.
- The county attorney does not handle custody or parenting time (visitation) issues.
- A parent with low income can ask the court for a lawyer in a paternity action. But only for establishing paternity. If paternity is already established, or you have signed an ROP, and you need help with custody or parenting time, call your legal aid office or volunteer lawyer office for help.
You can find forms to fill out yourself if you do not have a lawyer. The state court website has forms on custody and parenting time.
Note: there are LOTS of forms. It can be pretty confusing so if you are not sure what you need click on Help Topics Homepage, click on Child Custody / Parenting Time again and read through the info on the tabs (Overview, FAQs, Forms etc)
Why is it important to establish paternity?
Paternity has to be established for a court to recognize certain rights of fathers and children.
- A father does not have a right to custody or parenting time until paternity is established.
- A child has a right to get child support. Child support can’t be ordered until paternity is established. A child can get support until they are 18 years old (20 years old if still in high school). Support can include paying health insurance, medical costs, and day care costs.
See our fact sheet Getting Child Support.
When the court first sets child support, the father may also have to pay for the costs of the birth of the child, past child support or MFIP benefits.
- If the father dies, the child can inherit from the father. The child can get benefits, such as Social Security, if the father gets them or if he dies.
How are custody and parenting time set?
- If the parents were not married when the child was born, the mother has sole legal and sole physical custody until a court decides otherwise.
- If there is a paternity hearing, the court decides custody, child support and parenting time based on the best interests of the child, the same as it would in a divorce.
- The father has no right to custody or parenting time unless he goes to court for them. This is true even if he signed an ROP. The parents can agree to a custody and/or parenting time plan without going to court, but their agreement is not legally binding unless the court signs off on it.
- If there is an ROP and no paternity hearing, the father must bring a motion in court to get custody and parenting time. If the parents don’t agree on custody and parenting time, the court decides what is best for the child.
- If there is an ROP, and the parents have a domestic abuse hearing, the court may grant the father temporary parenting time in the Order for Protection (OFP).
- If the parents get married and later get divorced or ask for legal separation, the court decides custody and parenting time in the divorce or legal separation case.
What types of custody are there?
- Legal custody means the right to make major decisions for the child, like schools, health care, and religion. Legal custody can be individual (one parent) or joint (both parents).
- Joint legal custody means that both parents have equal rights and duties in making these major decisions. If parents share joint legal custody, they need to agree when major decisions are made.
- Physical custody and residence means living with the child and having the daily care and control of the child. One parent can have sole physical custody even if the parents have joint legal custody.
- Joint physical custody means that the child shares time between the parents. The schedule doesn’t have to be equal for physical custody to be considered “joint.” Parenting time is what controls how much time the child spends with each parent.
How is custody decided?
If both parents want custody of the child, the court looks at the following factors to decide on the best interests of the child. These are:
- 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?
- Does the child have any special medical, mental health, or educational issues that need special parenting arrangements or access to services?
- 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 probably 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 case, a professional chosen by the court meets with your child to talk to them about their wishes.
- Has domestic abuse happened in either parent’s household or relationship? What are the details of what happened, and does it affect parenting or the child’s safety or needs?
- Does a parent have physical, mental, or chemical health issues that affect the child’s safety or developmental needs?
- How has each parent provided care in the past?
- The willingness and ability of each parent to keep caring for the child. How does the parent meet the child’s developmental, emotional, spiritual, and cultural needs? Can the parent be consistent and follow through with parenting time?
- Will changes to home, school and community affect the child’s well-being and development?
- The relationship of the child with each parent, brother and sister, and anyone else who is important to the child. Do the proposed custody plans affect these relationships?
- 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.
- Will each parent help the child have contact often and regularly with the other parent? (except when there is family violence – see #4)
- 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 on all of these things. The court must say how it decided on the best interests of the child. The court does not look at the actions of a parent if it does not affect their relationship to the child.
Can custody be changed?
Yes. The court can change custody if the situation of the child or the parent(s) 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:
- A parent has again and again, on purpose kept the other parent from seeing the child, or
- The child’s present home is a danger to them