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Can an Unmarried Father Get Custody?

Jonathan Wolf

In short, yes he can. But there are many nuances as to how, when, and why a dad who is not married to the mom may obtain custody.

Adjudicated as Father by the Court versus Biological Testing

Before pursuing custody, you must establish paternity. Establishing paternity means deciding who the father of the child is in the eyes of the law. It is critical to understand the distinction between being the biological father of a child and being adjudicated the legal father of a child. The legal father is the person a court declares to be the father of the child. The legal father has all the rights and responsibilities of a parent, including, generally, the right to spend time with the child and the responsibility to support the child financially.

If you are the biological father of the child — you were a participant in the conception of the child and the child is a product of your DNA — ideally you should also be adjudicated the legal father of the child. Even so, there are numerous well-documented cases across multiple jurisdictions in which someone other than the biological father was adjudicated the legal father.

Establishing paternity can be accomplished in one of several ways. For a child born within a marriage, there is a presumption that the child is both the legal and biological offspring of the married partners. Unmarried biological parents may sign a document at the hospital called a Recognition of Parentage, which establishes the male partner as the legal father. An unmarried parent who does not sign a Recognition of Parentage at the time of birth may later initiate a legal action to get a court order establishing paternity. Parties often decline to obtain scientific genetic testing before signing a Recognition of Parentage (or when having a child within a marriage, for obvious reasons). In other cases, parties engaged in a paternity action in court obtain biological testing but cannot use it as evidence due to legal deficiencies in the testing procedure. The point is, a biological test may or may not be of use in establishing you as the legal father.

Even if you later show through genetic testing that you are not the biological father of a child, you may nonetheless be considered the father of the child in the eyes of the law if you have previously signed a Recognition of Parentage. Minnesota’s case law is somewhat more forgiving than that of other states. For example, in the case Losoya v. Richardson, the Court of Appeals held that given the incontrovertibility of a blood test showing the child was not the offspring of a man previously adjudicated as the father, the mother and the County could not continue to pursue child support enforcement efforts against him. 584 N.W.2d 425, 429 (Minn. Ct. App. 1998). Still, having to scientifically disprove the assumptions underlying a valid court order is a situation no one wants to find himself in.

Custody Is About More than Just Where the Child Spends His or Her Time

Establishing custody is different from establishing paternity. Establishing custody simply means deciding who has the authority to provide care and control for the child. There are two types of custody: physical custody and legal custody. Physical custody is about where the child is actually spending his or her time. Legal custody concerns the authority to make intangible parenting decisions – such as where the child will go to school, what kind of medical treatment he or she will receive, and whether he or she will be given religious instruction or will not be indoctrinated into any particular faith.

Many of those who have not previously gone through a family law action (or who have watched a lot of television) go into it thinking they are “going for custody.” In other words, many people think that having custody of a child is to the exclusion of the other parent having custody. In reality, in the vast majority of cases, the parents share joint physical and joint legal custody. That is, the child spends some time with one parent and some time with the other parent, and the parents make joint decisions regarding the intangible aspects of raising a child. Even if one parent is awarded sole custody, the other parent will still usually get parenting time (visitation with the child).

If the other parent of your child is making threats to “take your child away,” usually it is no more than hot air. Minnesota courts will only terminate a person’s parental rights completely under very narrow circumstances, such as total abandonment of the child, heavy ongoing drug use, or repeated and serious criminal activity. When deciding on custody arrangements, a Minnesota court will consider the best interests of the child. The default is that courts consider it best for a child to have two parents, and to have both of those parents involved as active participants in the child’s life. The court usually will not withhold time with a parent unless there is an actual threat to the child’s safety. So keep in mind that the other parent doing things that annoy you will not be reason enough for a court to deny her custody and/or parenting time.

Act Quickly if There Is No Court Order in Place

All that being said, if there is no court order establishing custody and parenting time, even if you have signed a Recognition of Parentage, you have no legally enforceable custody rights. In Minnesota, until a court decides upon custody and parenting time arrangements, the mother is considered to have sole legal and physical custody. Law enforcement representatives will do nothing to help you see your child without a court order.

So if you are in a situation in which the mother is threatening to withhold your son or daughter from you, it is very important to start a legal proceeding immediately. Until you get an order from a Minnesota court saying you have custody and/or parenting time rights, you have no legally enforceable right to see your child. Once you have filed a court action, it is possible to set an emergency hearing and get a temporary custody and parenting time order issued relatively quickly. But “relatively quickly” is an ill-defined term, especially within the court system. Your ability to see your child could depend entirely upon the court’s calendar. If you need to establish custody for your child, act quickly. Do the responsible thing and contact us today.

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