Establishing Custody and Parenting Time for Unwed Fathers

| Jul 7, 2020 | Paternity |

Fathers who were not married to their child’s mother may feel helpless if the mother isn’t willing to recognize or cooperate with the Father receiving custody or parenting time with the child.  The law presumes that it is in the best interests of a child to have nurturing relationships with both parents.  So, what can an unwed Father do?  It is important for unwed fathers wanting to establish a legal right to custody and/or parenting time with their child to pursue a legal action in court called a paternity suit.  Otherwise the mother of the child has sole custody until paternity has been established and custody and/or parenting time has been granted to a father in a paternity suit.

A paternity suit is a legal process where the court declares the legal relationship of father-child and the court also awards custody to one or both parents and decides the parenting time schedules for both parents.  A Paternity Petition needs to be executed and served upon the child’s mother and filed with the court.  In cases where the father isn’t sure about paternity, or if the mother is denying the father’s paternity of the child and the parties didn’t execute a Recognition of Parentage at the time of the child’s birth, it may be necessary to complete genetic testing to establish the father’s paternity.  Once paternity is established, the Court will decide the issues of custody and parenting time for both parents.  The Court will make those decisions based upon what is in the best interests of the child.  Minn. Stat. § 518.17 requires the court to consider all relevant factors, but the court must specifically address and consider 12 best interest factors which are listed in the statute.  Those 12 factors that the court must consider and decide how each factor favors either parent are:

(1)    a child’s physical, emotional, cultural, spiritual, and other needs, and the effect of the proposed arrangements on the child’s needs and development;

(2)   any special medical, mental health, or educational needs that the child may have that may require special parenting arrangements or access to recommended services;

(3)   the reasonable preference of the child, if the court deems the child to be of sufficient ability, age, and maturity to express an independent, reliable preference;

(4)   whether domestic abuse, as defined in Minn. Stat. § 518B.01, has occurred in the parents’ or either parent’s household or relationship; the nature and context of the domestic abuse; and the implications of the domestic abuse for parenting and for 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 development of 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 person 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 with either parent;

(11)  except in cases in which domestic abuse as described in clause (4) has occurred, the disposition of each parent to support the child’s relationship with the other parent and to encourage and permit frequent and continuing contact between the child and the other parent; and

(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 regarding any major decision concerning the life of the child.

It is important to know there is no such thing as a “final order” when it comes to child custody and parenting time decisions.  Any order of the court is subject to change depending upon the circumstances of the case.  However, a modification of an existing custody and parenting time order may require proving a different legal standard that must be considered before moving forward with any request to modify an existing custody order.  Whether you are considering establishing custody and parenting time for the first time through a paternity lawsuit, or are seeking to modify an existing custody or parenting time order, it is best to consult with an experienced family law attorney who can provide guidance.

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