The Rights of Unwed Fathers in Minnesota

Paternity-2You may wonder what happens if you are an unwed father to a newborn. Being a father means, naturally, taking on responsibility for your child, and making sure that you do what’s best for him or her. But what rights do you have as a father if you are not married to the mother of the child?

PATERNITY

The term “paternity” refers to the “legal” father of a child under Minnesota law. Once paternity is established, a father has the responsibility to support their child financially. He may also seek a court order concerning parenting time and custody.

Of course, every child will have a biological mother and biological father. But, a child may not have a “legal” father. Under Minnesota law, if a newborn’s mother and father are not married to each other when the child is born, the father will not be considered the “legal” father until the necessary steps are taken.

An unwed father will have no legal rights to the child until he becomes the “legal” father. Even if the father’s name is on the newborn’s birth certificate, that is insufficient to declare him as the “legal” father.

HOW DOES AN UNWED FATHER BECOME THE “LEGAL” FATHER OF THE CHILD?

A man (not married to the child’s mother) can become the “legal” father a child either through a signed “Recognition of Parentage” (ROP), or by court order.

Establishing paternity is the first step to gaining rights to access and decide issues surrounding health care, school issues, adoption, benefits, parenting time, financial support, and many other needs and issues surrounding a child.

HUSBAND’S NON-PATERNITY STATEMENT

In a case where the mother is married to a man who is not the biological father, a ROP form will not be enough to establish the biological father as the “legal” father. The husband of the mother must also sign a form known as the “Husband’s Non-Paternity Statement” within one year of the birth of the child.

Once these two forms are completed, it will finally establish a “legal” relationship between the biological father and child.

ROP DOES NOT GRANT CUSTODY OR PARENTING TIME

Once a ROP is signed, a father becomes responsible to support the child. However, under Minnesota law the mother of the child will have sole physical and legal custody. The ROP does not give any custody or parenting time to the father. In order to gain custody or parenting time, an action must be filed in family court.

Parenting Plans: An Option for Minnesota Custody Disputes

Once a divorce or paternity action pphas been initiated, physical and legal custody issues may arise, along with a need to determine the appropriate parenting time schedule.

Rather than fighting over custody labels, Minnesota law allows the litigants to simply enter into an agreement called a “Parenting Plan.”

The details of a Parenting Plan are finalized by the parents themselves, and are not based on an Order of the Court; Judges have no authority to unilaterally order a Parenting Plan.

The Parenting Plan will be used in place of a specific child custody order.

The Plan, however, is a legally binding document. Both parents are required to adhere to its terms. Either party may be found in contempt for a failure to do so.

There are variations in Parenting Plans depending upon the needs of the child, as well as the needs of the parents. Some are a few pages long, and others are several dozen pages in length.

You can expect a Parenting Plan to include details about the primary residence of the child, and who is responsible for the child’s medical, educational and religious needs.

We also recommend that Parenting Plans address the circumstances of not only the child - but also the parents, including household routines, schedules and the geographic distance between households.

Finally, many Parenting Plans take into account a child’s relationship with extended family, including grandparents and other family members.

Wondering whether a Parenting Plan is the ideal way to address the child-related issues in your case? We’re here to help. Call (763) 323-6555 to speak with one of our attorneys free of charge.

Minnesota’s Social Early Neutral Evaluation Model for Divorce and Paternity Cases

best iMore than 95% of the cases we handle settle short of trial. When custody issues are involved, many of our clients participate in a process known as social early neutral evaluation – an SENE.

In a social early neutral evaluation, the lawyers and clients will meet with a pair of evaluators. These individuals are usually social workers, custody evaluators, or experienced family law practitioners. The team will consist of one male and one female, to avoid the perception of gender bias.

Most social early neutral evaluation sessions are approximately three hours long.

During the first hour, the parties themselves do most of the talking. The evaluators want to hear from each side. Issues such as physical custody, legal custody and parenting time are discussed. The role of the lawyers during this part of the process is typically rather limited, as the evaluators want to absorb information directly from the litigants.

During the second hour, the evaluators do the hard work. Once the evaluators have heard from the parties, and asked all of the questions that need answering, they will break and discuss the matter privately. This part of the ENE typically takes about 30 minutes. During this time, the parties are usually separated.

Next the parties, the lawyers, and the evaluators come back together, and the opinions of the evaluators are expressed. The opinions of evaluators are nonbinding, but provide some insight into what two qualified individuals believe the likely outcome will be if the matter proceeds to trial. The opinions of the evaluators will not become known to the judge.

Once evaluators have provided their thoughts, the third hour of the session occurs. During this third hour, the parties separate, and negotiation begins. Some, or all, of the relevant issues may be discussed, such holiday schedules, routine access schedules, summer vacation time and non-school days.

About 75% of the time, a settlement will be reached. If the settlement is reached, the terms of the settlement are put into a memo, which is then forwarded to the judge. Assuming the court approves of the agreement, the agreement will be incorporated into the final divorce decree.

Because of the success of this type of forum, many counties have now adopted the social early neutral evaluation model. Some (like Anoka County) call it a custody parenting time early neutral evaluation, or CPENE, where Hennepin County uses the SENE label.

Our lawyers have participated in hundreds of early neutral evaluations. If you have questions about the process, we invite you to give us a call at (612) 767-4404.

How Is Paternity Established In Minnesota?

Paternity must be established in order for the father of a child to seek physical custody, legal custody or parenting time with a child born outside of marriage. In the absence of establishing paternity, a father has no custodial rights, or the ability to exercise parenting time, unless the parties agree otherwise.

Minnesota law provides two ways for a father to establish paternity of a child: (1) a signed Recognition of Parentage; or (2) a court order.

A Recognition of Parentage (“ROP”) is signed by the parents of a child, at the hospital, shortly after the child’s birth. The execution of a ROP establishes the father-child link, allowing a father to move a court for physical custody, legal custody or parenting time.

In other circumstances, the mother, father or county (if public assistance has been received by mother) may establish paternity through a court proceeding. The father and child will participate in genetic testing to determine paternity. The issues of physical custody, legal custody and parenting time may be addressed in the same court case. A case may be filed in court anytime until the child reaches 18 years of age.

Candid Advice From A Guardian Ad Litem

The Minnesota Guardian Ad Litem Program provides advocates who represent the best interests of abused and neglected children in court. They play a pivotal investigative role in protective services cases, and other situations involving allegations of endangerment of a child.

The Minnesota courts web site provides a number of resources for litigants who may encounter a Guardian Ad Litem as part of their case:

Helpful post this week from Ben Stevens’ South Carolina Family Law Blog. A trusted colleague of Stevens, Joanne Hughes Burkett,  family court Guardian Ad Litem, authored a guest article for parents entitled “What This Guardian Ad Litem Wants Parents and Parties to Know.”

Here’s what Burkett says:

  • A Guardian ad Litem (GAL) is not your child’s guardian. A guardian is a person who legally has the care and management of a child. Typically, this is a parent. The role of the Guardian ad Litem is to assist the Family Court Judge in ascertaining the best interests of your child.
  • The Guardian ad Litem will NOT make the final decision about custody and visitation. Only the Family Court Judge can make that decision. The Guardian ad Litem’s report is only one of the things the Judge will consider in deciding what is best for your child.
  • The Guardian ad Litem’s role as legal advocate for your child ends at the Final Hearing, unless that Order is appealed. We are not their GAL forever.
  • You control how expensive the case is, and, by and large, the Guardian ad Litem’s fee, which you will have to pay. Be careful not to run up the bill.
  • If you think there is something the Guardian ad Litem needs to know, tell your lawyer first. It could affect the strategy of your case. If the GAL needs to know, your lawyer can write, fax, call, or email the information.
  • What you tell me is NOT confidential. Because I am not your lawyer, I do not have a duty to keep in confidence anything you tell me.
  • I cannot give you legal advice, so if you have questions or concerns, talk to your attorney.
  • All Guardians ad Litem do their work differently. Ask your lawyer how to best work with the GAL in your case.
  • The less a child knows about the litigation, the more impressed I am with the parties.

Thanks to Ms. Burkett for her thoughts.

What Are The Common Parenting Time Schedules? How Is Child Support Affected By Them?

In recent years, Minnesota’s child support statutes have shifted from a “label-based” model to a “parenting schedule” based model. It used to be that child support was calculated based upon the type of custody (whether joint physical or sole physical) arrangement the parties were awarded by the court.

New emphasis has been placed on the actual amount of parenting time that has been awarded, as opposed to mere labels. For that reason, the label, itself, has basically become meaningless. Some, including me, predict the end of the label in the next five to seven years.

The support guidelines now discount child support for an obligor (the one who pays) if they spend a certain amount of parenting time with their child, or children. Three broad categories exist: uninvolved (less than 10% of the available time with children), involved (between 10% and 45% of the available time with children), and equal (above 45% of the available time with children. The measuring tool is usually overnights.

Parents with less than 10% parenting time receive no credit against their basic child support payment. Parents who are “involved” receive a 12% credit. Parents who are “equal” receive a 50% credit.

We are frequently asked about what sort of parenting schedule might be awarded to a current, or potential, client. With that, we thought it would be helpful to outline the “typical” parenting time schedules that exist, along with the correlating discount percentage against basic child support.

Limited/High Risk Schedules: No child support credit available, as parenting time is less than 10% of available time.

  • Supervised Visits: Visits limited to a supervised safety center a few hours per week. Typically reserved for cases of endangerment. No basic child support credit.
  • As Agreed Upon: Visits are limited, but unsupervised. Scheduled ad hoc. No basic child support credit.

Typical Non-Custodial Schedules: A 12% child support credit is afforded, as time exceeds 10% of available time, but is less than 45% of available time.

  • Every-Other Weekend (F-Su): Bare minimum schedule for involved non-custodial parents. Usually involves parents who live some distance apart, but close enough to facilitate rotating weekends. 12% basic child support credit.
  • Every-Other Weekend (F-Su) & One Evening Per Week: The old “standby,” with children returning each weeknight to the primarily custodian’s residence. 12% basic child support credit.
  • Every-Other Weekend (F-Su) & One Overnights Per Week: Many judges afford overnight visits during the school week. 12% basic child support credit.
  • Every-Other Weekend (F-Su) & Two Evenings Per Week: Slight increase from the “old standby,” but still no overnights during the school week. 12% basic child support credit
  • Every-Other Weekend (F-Su) & Two Overnights Per Week: 6 of 14 overnights. Probably lands in the “joint physical” label about 50% of the time. 12% basic child support credit, with possibility of increase by judge, but not to 50%.
  • Every-Other Weekend (F-M) : Minimal involved schedule includes time until Monday morning school drop off. 12% basic child support credit.
  • Every-Other Weekend (F-M) & One Evening Per Week: One additional overnight e/o Sunday, but still a 12% basic child support credit.
  • Every-Other Weekend (F-M) & One Overnight Per Week: 5/14 overnights. 12% basic child support credit.
  • Every-Other Weekend (F-M) & Two Evenings Per Week: Argument could be made that this borders on 45% of the time, without actual overnights. 12% basic support credit.

Typical Joint Physical Schedules (Equal Time): A 50% basic child support credit is afforded against basic support, as time exceeds 45% of available time.

  • Week On/Week Off: Easiest equal access schedule to follow, but some don’t appreciate a full week without seeing children. 50% credit.
  • Six & One (Overnight): Basically week on/week off, with a day in the middle to see the children. 50% credit.
  • Six & One (Evening) : Same as above, except no overnight during the other parent’s week. 50% credit.
  • Two-Two-Three-Three: Schedule rotates M/T then W/TH, the F, S, S, then starts over, but parent who didn’t have on weekend has M/T. 50% credit.
  • Two-Two-Five-Five: Concrete every M/T with one parent, every W/TH with the other, then rotate F/S/S. Each parent has two days, followed by five days, with the children. 50% credit.