“If you fail to plan, you plan to fail.” This quote was probably coined for the business world, but it applies in a lot of other settings, too—including family law and child custody. Most people are reluctant to think about worst-case scenarios that involve their families, much less talk about and plan for them. It may feel easier to just hope everything goes well, and deal with problems if and when they arise. We’re here to tell you that that approach is a risky one, especially if you are having a child with a partner to whom you are not married.
It has become common for unmarried partners to decide to have a child together. Both partners may believe they will remain in the same household, raising their child together, and neglect to plan for any other possible future. While many couples do remain together, many others do not—and everyone (especially the child) suffers if there is no agreement in place about relationships, rights and responsibilities.
When unmarried parents are living together with their child, they both have the benefit of spending time together with the child, and the child gets to be with both parents every day. But if the parents break up or move to separate households, problems will quickly become apparent. A little advance discussion and planning can save a lot of grief.
In Minnesota, unmarried fathers have no legal relationship to their child, even if their name is on the birth certificate, unless one of two things happens. The first is that the parents can sign a Recognition of Parentage form. If one parent is unwilling to sign the Recognition of Parentage, the other parent can go to court to seek a Judgment of Paternity. At that time, the court can also make a custody determination.
A Recognition of Parentage is the simpler and less expensive option to a court action to establish parentage. Parents should consider signing one as soon as possible after the birth of the child. Minnesota hospitals that provide obstetric services typically provide this form.
When both parents sign a Recognition of Parentage, that establishes the child’s paternity and creates a legal relationship between the father and child. It does not establish custody or parenting time for the father. In fact, the mother of the child has sole legal and physical custody by statute. If the father moves out of the household, or the mother decides to leave, the father has no legal right to custody or parenting time with the child without bringing a court action. The problem is that at that point, the relationship is probably already strained. This makes bringing a court action to establish child custody and parenting time more difficult. But there is a better way to get things done.
Don’t wait until there is trouble in paradise to establish your rights as a parent. You and your partner should sign a Recognition of Parentage form and put in place a stipulated custody order as soon as possible after your child’s birth.
A child needs and deserves to have both parents involved in their life. Establishing a custody and parenting time stipulation and order doesn’t mean that you and your partner are planning to break up, any more than having collision insurance on your vehicle means you are planning to get in a car accident. It simply puts protections in place in case they are needed.
Remember that there are two types of custody: the first is legal custody, which refers to the right to make major decisions about your child’s upbringing: how they will be educated, what religion they will be raised in, and what medical treatment they will receive. Partners who are living together may, as a practical matter, make these decisions together, but having joint legal custody secures the rights of both parents. The second type of custody is physical custody, which refers to the parent(s) with whom a child primarily resides.
If you and your partner are living together, child support might not be a current issue, but establishing custody by agreement lays the groundwork for child support if needed down the road. Some parents may hesitate to pursue a custody and parenting agreement, fearing it will obligate them to pay child support. The reality is that if one parent finds it necessary to file a paternity or child support case, the other parent could be obligated to pay retroactive child support anyway. It makes more sense to establish your rights as a parent early.
If you have questions about your rights as an unmarried mother or father in Minnesota, we invite you to contact Mundahl Law to schedule a consultation. We can help you to put an agreement in place to protect your legal rights and your relationship with your child.