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Unless a court order says otherwise, when a child is born and the parents are not married the mother has sole legal and physical custody of the child.

“Paternity” is a legal concept.  It refers to the determination of the legal rights and responsibilities of the man who is the legal father of a child.  This man would normally be the biological parent of the child, but in unusual circumstances may not even be the biological parent of the child.  The Parentage Act describes the determination of parentage in Minnesota.  See Minnesota Statutes, §257.51 to §257.74.

 

A married man will automatically be presumed to be the father when his wife gives birth to a child.  Many unmarried parents will jointly raise a child for years without problem.  However, disputes can arise over many issues as a child grows older.  Sometimes a mother will plan to leave the state.  Other times arguments will arise about payment of child support, a child’s schooling or parenting time of a parent.  In other cases the mother (or perhaps a county agency) will wish to establish paternity, often to start the payment of child support.

If a father wishes to establish custody or parenting time with the child he will have to establish that he is the “legal” father of the child.  Under the law an unmarried man can be recognized as father in one of two ways.

 

If both mother and father sign a “Recognition of Parentage” and the recognition is filed with the Minnesota Department of Health, the signatories are presumed to be the parents of the child.  The recognition functions like an admission by both parents that the named father is the legal parent of the child.  The Recognition has the force and effect of an order determining the existence of the parent and child relationship.  See Minnesota Statutes, §257.75, subd. 3.  This form is available from the Minnesota Department of Health.

 

However a "Recognition of Parentage" by itself does not establish custody, a right to specific parenting time or a child support obligation.  These rights can only be formally recognized and enforced through formal legal proceedings.

 

Minnesota law provides for actions to declare the existence or non existence of the father – child relationship.  Minnesota Statutes, §257.57.  An action of this kind can be brought by the mother, presumed father or child (or his/her personal representative).  There are limitations on when such an action can be brought.  A potential litigant would be well advised to seek competent legal advice

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Proving the existence of the mother – child relationship is relatively simple.  A woman only needs to show she gave birth to the child.  A birth certificate would provide presumptive proof of the birth.

 

Until a court order is issued, an unmarried mother will have sole legal and sole physical custody of her child.  However, proving the father – child relationship commonly involves genetic testing of the mother, presumed father and child.   Mother, father or child can ask the court to order genetic testing.  A public agency may also request genetic testing – commonly to set child support.  A child can be made a party to the action.  If a child is a minor, a guardian or guardian ad litem will be appointed to represent the child.  Minnesota Statutes, §257.60.

 

Evidence may also be presented regarding other possible fathers, whether the mother was married at the time of conception, evidence of sexual intercourse between the mother and potential father at a time of possible conception, expert opinions of the probability of the potential father’s paternity based on the duration of the pregnancy, anthropological evidence of paternity based on tests performed by experts, whether the man treated the child as his son or daughter and other relevant factors.

 

Once paternity has been established, the court will award physical and legal custody [See Custody Link], parenting time [See Parenting Time Link] and child support [See Child Support Link].

 

The major disadvantages of seeking a court order would be the costs of the legal action including attorney fees for one, two or three parties, court costs and costs of genetic testing.  A second disadvantage is the length of the proceedings.  A Recognition of Parentage can be signed and filed in one day, but a legal action to determine paternity (or non-paternity) is likely to drag on for months.

 

Paternity