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Custody of Children Born Out of Wedlock in Minnesota Child Custody Cases

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).

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