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Education for Justice |
FACT SHEET F-3 |
Fall
2011 |
PATERNITY AND CHILD CUSTODY
HOW IS PATERNITY ESTABLISHED?
“Paternity” means who is legally the father of the
child. If the parents are not married
when the child is born, there is no legal father until paternity is
established. There are 2 ways to
establish paternity.
1.
Recognition
of Parentage (ROP)
Both parents sign a sworn
statement that the man is the child’s father.
You can get the form at the hospital when the child is born or from your
county’s child support office. You can
also call the Minnesota Department of Human Services at (651) 431-2000. To file the ROP, mail it to:
Minnesota Department of Health -
Office of State Registrar
An ROP is only valid when it is
filed with the Department of Health. If
the mother is not married to someone else, and the parents are at least 18
years old, this statement of paternity is final. An ROP can be done at any time. You do not need a lawyer, but talk to one if
you can before you sign it, to learn how it will affect your rights.
An ROP can be used by a court to
set child support. It does not give the father any right to custody or to parenting
time (visitation).
The mother or the man who signed
the ROP can cancel (revoke) the ROP within 60 days. You have to do this in writing! Get the form you need from the Department of
Health. File it with them to make it
valid. After 60 days, you can only cancel
the ROP by going to court. You need evidence
that the man is not the father. There
are time limits to do this. Act quickly.
2.
Paternity Order
From Court
Sometimes the court must decide
paternity. One parent may not want to
sign an ROP, or more than one man may claim to be the father, or the mother may
have been married to someone else when the child was born. The court will look at the evidence,
including genetic tests and the past relationship between the mother and the
possible father. You can ask for a
genetic test but you do not HAVE to have one to establish paternity.
If the parents are married, the
husband is thought to be the father of the child. If the husband or wife wants to start a court
case to deny paternity, then, in some
cases, they must start it before the child turns 3.
WILL THE COUNTY ATTORNEY HELP ME?
·
If you have custody of the child, the county
attorney will file a case to set paternity, and child and medical support. If you are a parent who does not have custody
but wants to establish paternity, like an unmarried father, the county should
help you in most cases. You may end up owing child support once paternity is
established.
·
The county attorney will not handle custody or parenting time (visitation) issues.
·
A parent with low income can ask the court for an
attorney to help set up custody or parenting time – unless he or she has signed
the ROP Form. If you have signed an ROP
and need help with custody or parenting time, call your legal aid office or
volunteer lawyer office.
You can find forms to fill out
yourself if you do not have an attorney.
The state court website has forms on custody and parenting time. Go to www.mncourts.gov
®
Click on the Court Forms tab on their homepage,
or Self-Help Center tab for more information.
WHY IS IT IMPORTANT TO ESTABLISH
PATERNITY?
Paternity has to be established for a court to recognize certain
rights of fathers and children.
HOW ARE CUSTODY AND PARENTING TIME
SET?
·
If the parents were not married when the child
was conceived or born, the mother has sole custody until a court decides
otherwise.
·
If there is a paternity hearing, the court will decide custody, child support and
parenting time based on the best interests of the child, the same as it would
in a divorce.
·
The father has no right to custody or parenting
time unless he goes to court for them.
·
If there is an ROP and no paternity hearing, the
father must bring a motion to get custody and parenting time. The court will decide what is best for the
child.
·
If there is an ROP, and the parents have a
domestic abuse hearing, the court may grant the father temporary parenting time
in the Order for Protection.
·
If the parents get married and later get
divorced or ask for legal separation, the court will decide custody and
parenting time in the divorce or legal separation case.
WHAT TYPES OF CUSTODY ARE THERE?
·
Legal custody means the right to
make major decisions for the child, like schools, health care, and
religion. Legal custody can be individual
(one parent) or joint (both parents).
·
Joint legal custody means that both
parents have equal rights and duties in making these major decisions.
·
Physical custody and residence means
living with the child and having the daily care and control of the child. One parent can have sole physical custody
even if the parents have joint legal custody.
·
Joint physical custody means that
the child lives part-time with one parent and part-time with the other.
HOW IS CUSTODY DECIDED?
If both parents want custody of the child, the court looks
at all important facts to decide on the best
interests of the child. These facts are:
·
What each parent wants
·
What the child wants, if they are old enough to
make a choice
·
How much each parent takes care of the child
·
The closeness between each parent and the child
·
The relationship of the child with each parent,
brother and sister, and anyone else who is important to the child
·
The child’s adjustment to home, school, and
community
·
How long the child has lived in a stable, good
home and the need to stay there
·
The permanence
of the family where the child will live
·
The mental and physical health of all the people
involved
·
Each parent’s ability to give the child love and
guidance, and to raise the child in the child’s culture or religion, if any
·
The child’s cultural background
·
The effect on the child of any family violence
in the household
·
If each parent will help and let the child have
contact often and regularly with the other parent (except when there is family
violence).
The court must write findings on all of the factors. The court must say how it decided on the best
interests of the child. The court will
not look at the actions of a parent if it does not affect their relationship to
the child. The court will look at whether
a parent has made a false charge of sexual abuse, physical abuse or neglect.
CAN CUSTODY BE CHANGED?
Yes. The court can
change custody if the situation of the child or the parents
changes and a new order is needed for the best interests of the child. The
court will only look at facts that have changed since the old order or facts
that were unknown at the time of the old order. The court can only change custody when:
·
Both parties agree to the change or
·
The parent with custody has let the child become
integrated into (fully part of) the home of the other parent or
·
The child’s present home endangers his/her
physical or emotional health, or growth, and a change will do less harm than
staying in an unsafe home or
·
The court has denied a request of the primary
custodial parent to move the residence of the child to another state, and the
custodial parent moves anyway, despite the court’s order.
To change a custody order, the parent must bring a motion in
court. The parent must have witnesses,
affidavits or other documents to show one of the above reasons to change
custody.
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