Custody of Children Born Out of Wedlock
- by Eric C. Nelson, Attorney

In Minnesota, the determination of custody for children born out of wedlock is no different than the determination of custody for children of marriage — both are decided pursuant to the “best interest of the child” standard set forth in Minnesota Statute section 518.17.

It is important to understand, however, that until a custody order is issued, the mother of a child born out of wedlock has sole legal and sole physical custody by operation of law. [1]

Also, the father of a child born out of wedlock generally has no standing to obtain custody until paternity has first been legally established. This may be accomplished by means of a Recognition of Parentage signed by both parties, [2] or by means of a Judgment of Paternity. [3] Custody can be decided as part of the paternity proceedings. Alternatively, if paternity has already been established by a Recognition of Parentage, the father may obtain a custody determination by bringing a Petition for Custody and Parenting Time. [4]

For unmarried fathers who are living with their child's mother, it is a good idea to file a joint custody petition to obtain a court order granting you joint legal and joint physical custody, to protect you in case the relationship fails.

Footnotes:
  1. Minnesota Statute section 257.75, Subdivision 3.
  2. Minnesota Statute section 257.75, Subdivision 3.
  3. Minnesota Statute section 257.66.
  4. Minnesota Statute section 518.156, Subdivision 1(2).