Minnesota’s laws on the legitimacy and custody of children address the establishment of a parent and child relationship when the parents are not married. Although a child may bear his biological father’s last name, this does not mean that the father is legally recognized or has any rights to the child if the child was born outside of marriage. Similarly, a parent cannot change legal parentage of a child simply by changing the child’s to the mother’s last name or to a stepparent’s last name.
When a child is born in a hospital to an unmarried mother, she has the option of voluntarily signing a Minnesota Recognition of Parentage (ROP) form with the child’s father, establishing his paternity, and listing him on the birth certificate as the father. The child can have any last name that the mother chooses. By properly signing a notarized Recognition of Parentage, a father can seek to establish custody and parenting time rights in family court as permitted by Minn. Stat. 257.541, subd. 2 (2013). Until the father obtains a court order granting him sole or joint custody, the mother has sole custody and the authority to decide the father’s access to the child.
It’s very important for mothers to be truthful and clear with hospital staff as to whether they are married or not when addressing the child’s paternity. Minnesota law does not recognize common law marriage, and although a mother may consider the child’s father to be her “husband” (in Spanish, “esposo”), he can only be a spouse through a valid, legally recognized marriage. If a woman is married to a man who is not the child’s biological father at the time that the child is born, she should not knowingly deny that she is married in order to have the biological father listed on the child’s birth certificate, or there could be issues with fraud for providing false information on a state form, not to mention the difficulties in correcting the information when the child is older. Many people are surprised (usually, unpleasantly) to discover that MN recognizes a presumption of a husband’s paternity, regardless of whether he is the biological father, if the child was born during the marriage or within 280 days after a divorce. Amending a birth certificate to remove the husband’s name and replace it with the biological father’s name is not automatically possible. This can be especially disheartening to a man who needs to establish paternity to a child for an immigration matter without a lot of time to resolve the issue. He may face roadblocks if the child was born while the mother was married to someone else.
Down the road, the relationship between two unmarried parents may not last, and the mother may decide it would be best if the father is no longer the child’s father. However, it’s not sufficient to just apply for a name change for the child. The only way to permanently terminate a parent’s rights is by filing a Petition to Terminate Parental Rights and obtaining a court order granting the termination. This is by no means an easy endeavor, and the court takes these cases very seriously. If you would like more information about establishing or terminating parenting rights, please contact Wilson Law Group for a consultation with one of our family law attorneys.