With fewer people feeling the pressure to get married, more children are being born to unmarried parents. If the parents’ relationship remains in intact they may not experience anything different than their married counterparts. However, in Minnesota when the relationship ends and until a Court action for custody and parenting time (visitation) is commenced, there is a divergence in the law and married parents have very different rights to their children than unmarried parents.
In Minnesota, during the period when the relationship is ending but before a court action is established, unmarried parents have very different legal rights to their children than married parents do. Specifically, until there is a custody and/or parenting time (visitation) agreement incorporated into a court order or an order directly from a Judge, the birth mother of a child born out of wedlock has sole legal and physical custody rights to the child(ren). This means that even if both parents have signed a Recognition of Parentage form, the father or non-birth parent does not have any legal or physical custody rights to the child(ren). In fact, without a court order, if the birth mother is not willing to allow the non-birth parent to have parenting time or visitation with the child(ren), there is no legal obligation that birth mother allow the non-birth parent access to the child(ren).
Once a court action is started, and paternity is established, a determination of custody and parenting time follows the same process that is followed for married parents and custody and parenting time determinations will be made based upon the best interests of the child(ren). However, most often it is the critical period between the break-up and the issuance of a court order that is particularly difficult for non-married parents. Ideally, parents will work together through a break-up keeping the best interests of their children in mind, but tensions can be strong and people often struggle with communication as relationships are ending.
For both parents, but particularly for the non-birth parent, it is important that you move quickly to meet with an attorney and/or to start a court action as the relationship is ending to ensure that your custody and parenting time (visitation) rights are established as soon as possible.
Further complicating matters for unmarried parents in cases where the birth parent is receiving public assistance on behalf of the child(ren), it is possible that the county providing the assistance will independently bring an action to collect reimbursement for all or a portion of the public assistance from the non-birth parent. In other words, even where both parents have a good relationship and would prefer to stay out of the court system, the county attorney could start a child support and reimbursement case without cooperation of either parent. It is important to note that the county attorney will be representing only the county and not either parent in this action. It is a common misconception that the county will represent the interests of the custodial or birth parent but this is not the case.
Under any scenario, if you are am unmarried parent, it is important that you are prepared to address custody, parenting time and child support issues quickly and strategically. Ignoring or avoiding these issues will only make things more difficult.