Baby's Father Wants Custody

What Happens Now?

In Minnesota, when a baby is born to unwed parents, the mother of the child has sole legal and sole physical custody of the child (even though a recognition of parentage may have been signed). From a legal stand point, that means the the mother can make all decisions regarding the child's medical treatment, education, religion, and all day-to-day decisions without any input from the father. While some mothers will consult and involve a father in decisions regarding the child, the father has no legal rights until a court issues an order granting him custody and parenting time. This can be confusing to fathers who may have worked out a parenting schedule with the mother and who have been involved. Unless there is a court order specifically granting him custody and/or parenting time, he has no legal rights for custody or parenting time.

A father can petition the court for custody and parenting time. A father can request to have joint or sole legal custody, or he can let the court know he is comfortable with the mother continuing to have sole legal custody. Similarly, he can make a request regarding physical custody. If the parents agree on custody and parenting time, he may not need to petition for it. The parents can submit a stipulated agreement to the court and the court will issue an order which will protect the rights of the parents according to their agreement. This is the fastest/least expensive way to establish custody and parenting time for a father.

If the parents do not agree on custody and parenting time, the court will schedule a hearing after the father files his petition for custody and parenting time. The initial hearing is usually referred to as an "ICMC" which stands for "Initial Case Management Conference." During the ICMC, the judge meets the parents and provides some information about the legal process. Usually judges encourage parents to participate in the early neutral process (ENE). The early neutral process is an alternative dispute resolution process which the State of Minnesota has created to assist parents in reaching agreements regarding custody and financial issues without incurring the cost (financial and emotional) of litigation and without putting the most personal family decisions in the hands of a judge. While judges will absolutely make decisions regarding custody and parenting time when they need to, they prefer that parents create their own agreements through the ENE process because no one knows what is best for a family as well as the parents do.

At the ICMC, if the parents agree to participate in the ENE process, they will choose two evaluators from a roster of qualified individuals provided by the court. The next step is participating in an SENE (Social Early Neutral Evaluation) with the evaluators chosen. It is common for the SENE to be scheduled at the time of the ICMC so parents should bring a calendar to the ICMC so they can schedule it. The SENE process is used to help parents reach agreements on custody and parenting time. Please see our post regarding SENE for more detailed information about the process.

If there are disagreements between the parents regarding financial support or payment of expenses and childcare, the Judge may suggest the parties participate in an FENE (financial early neutral evaluation) to resolve the financial issues without litigation. The percentage of cases which are resolved through the ENE process is about 80%. That means most cases are settled by the parties without having to go to trial and without a judge making the decisions. Once an agreement is reached, the parties can submit it to the court and the judge can sign it so it has the full legal effect of a court order.

Sometimes the county will petition for a father to pay child support before the father has petitioned for custody and parenting time. The most common instance for this to occur in Minnesota is if the mother is receiving any public assistance on behalf of the minor child (food stamps, medical assistance, day care assistance, etc.). If the mother is receiving benefits for the child, the county may ask the father to contribute financially to the expenses of the child. They begin the process by filing for child support. A father can, and should, counter petition for an establishment of custody and parenting time when the county petitions for child support (if he has not already done so). A father should also be aware that if he has not been paying child support in the past, and he petitions for custody and parenting time, he may end up paying child support at the end of the process.

For more information about your rights as a parent in Minnesota, please contact family law attorney/mediator Christine Callahan at christine@mnfam.com.

Meet Christine Callahan

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Christine Callahan is an attorney practicing solely in the area of family law across Minnesota. She is also a mediator, a Minnesota Rule 114 qualified neutral, and she is on the Court Rosters of approved Early Neutral Evaluators for Scott and Carver… Read More

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