Congratulations!?!? You just learned that your partner and you are expecting a child. Your partner and you are not married, and you may not have intentions of getting married. Maybe you are sharing the same roof or are living under separate roofs. Regardless of the situation there is a lot of work to be done to get ready for a new bundle of joy.
If the pregnancy was unplanned for both parents-to-be, let alone one parent-to-be, then inevitably one parent musters up the courage about whether the parties are even capable of caring for a child given the current situation of the parents. The two “a” words then surface: adoption or abortion. If one party is not prepared to discuss either of these two options it often has the effect of creating a huge emotional rift between the parties. This conversation often has the power to end the relationship between the expecting parents because the person who flat out rejects the idea that two “a” options even be allowed to be spoken finds the two ideas to be conceptually unspeakable or repugnant. The “idea” parent is then chastised with a scarlet A for even speaking of the two options.
Regardless of what transpires between when the pregnancy is discovered by the parties and when the child emerges from the mother’s womb there are two people who are now presented with the task of caring for a child that has been created by them. If the parents are unmarried and the father is in attendance then the presumed father attending the birth will be requested by hospital staff to sign what is known as a recognition or statement of paternity. It creates a legal presumption that a male is the father of a particular child. Eventually the new parents leave the hospital with the child, either separately or together.
Much of the time the new parents start out with great cooperation concerning the care of the new child. The parties share the same roof and both contribute to the care of baby. Mothers have the benefits and burdens associated with new motherhood in the form of maternity leave from work if they are employed. Fathers tend to get back to work so that they can provide for their partner and child. A new schedule eventually gets formed so that everyone can make sure that baby’s needs are met.
But then something unexpected happens: the relationship fails and the parties split up. Where is the child going to go? Legally speaking: with the mother. Why? Minnesota and Wisconsin both take the legal position that an unmarried mother has all custodial rights to a child that she gave birth to until a father proves paternity and obtains a court order that establishes custody and parenting time for the child.
Many fathers come to my office with a common request: they want joint legal and physical custody with the mother and an equal parenting time schedule. They make this inquiry with me after the relationship with the mother has failed. It is only at this time that the father then understands that he has nothing in the eyes of the law when it comes to custody and visitation with his offspring.
Most unwed fathers make a common mistake: they assume that by signing a statement of paternity for a child that they will have custody and visitation with the kid. They are wrong; very wrong. And by the time a dad figures this out it is often times too late. Dad’s chances of obtaining joint or sole physical custody or primary physical placement are severely diminished.
From a strict legal rights perspective the best time for a father to act on establishing custody and visitation rights to a child is during the second or third trimester of the mother’s pregnancy. At this point, when the child is not yet born, the father is truly on the same equal legal footing as the mother. A court will pause the legal proceeding until after the child is born. But the earlier the proceedings are resumed by the court after the child’s birth the more equal footing the father will be placed on when it comes to his child.