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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 41220
Experience:  I provide family and divorce law advice to my clients in my firm.
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I live in MN and since me and my ex never married and are no

Customer Question

I live in MN and since me and my ex never married and are no longer together I automatically have sole custody of our 8 year old son until court decides otherwise. He has now filed about 3 weeks ago to have joint custody, they only thing that has come up so far is that he and his attorney "believe" he signed the Recognintion of Parenting form with no proof of this provided. A week before I was served custody papers his lawyer contacted me to give me his requests that he wanted and see if I was willing to participate in mediation, I refused mediation because his requests were unreasonable, unrealistic and I know he won't back down or do whats in the best interest of our child. I refused them all except one, that he be granted 50% legal custody I was fine with. The reason he is doing this is because he has hard feelings and strongly dislikes my new significant other, they have known each other since they were children. So, since I refused mediation the next tactic they pulled to remove new boyfriend from the picture was to file a harassment restraining order against my new boyfriend on behalf of our son and that they have no contact at all. The judge did grant it, but I don't know why because the situations he was using were not current issues, one was from almost 2 months previous and the other was 6 months previous, and neither directly involved our son. He has no custody or rights to the child at the moment so is he allowed to do this? Also, since I am the one with sole custody and this is where the child resides should I not have been served or informed of this as well??
Submitted: 4 months ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 4 months ago.

Thank you for your question. Please permit me to assist you with your concerns. To ensure that I do not miss anything, I will go point by point with your questions and respond to each listed.

You asked:

He has no custody or rights to the child at the moment so is he allowed to do this?

Yes, he does. He is still the legal parent of the child. And as a legal parent he can always seek custody, or rights, and can claim if there is a basis for doing so that since the child may be in an unsafe environment, the judge has to evaluate the order. Technically anyone can file this against you, but closer family are given more weight. For example, and again this only a hypothetical--if your neighbor saw your significant other hit your child, that neighbor could contact Child Protective Services and potentially file for a restraining order on behalf of the child if she hires a Guardian Ad Litem. A parent whose rights are not severed can just do that on behalf of the child even if that parent might not have legal rights at that moment.

Also, since I am the one with sole custody and this is where the child resides should I not have been served or informed of this as well??

My apologies but informed of what, that the order was granted? Please advise!

Please let me know what you mean so I can help finalize my answer, thank you!

Customer: replied 4 months ago.
informed of the order was granted and served since child lives with me. But how is he the legal parent when it hasn't been proven yet?
Expert:  Dimitry K., Esq. replied 4 months ago.

Let me answer the second point first, and then I will respond to your first point separately.

By law both parties are deemed to have co-equal custodial and legal rights by default. Those rights only change if a judge rules otherwise. He is therefore a legal parent unless and only unless the courts ruled otherwise. You do not become a legal parent if the child is with you, you only become one if there is a court order stating so. Having the child reside with you grants you physical custody but not legal.

Expert:  Dimitry K., Esq. replied 4 months ago.

As far as the order being granted, that should have occurred if the courts know that the child resides with you--once an order was granted you had to have been served. Otherwise if you violate the order not knowing that it is in place you have a viable defense as you had no 'actual notice' of the order being put up by the courts.


Dimitry, Esq.

Customer: replied 4 months ago.
If the parents were never married, the mother has sole legal and physical custody until a court order says differently.We live in Minnesota so an unmarried father has no legal rights to custody or visitation of the child. Only a legal parent can ask the court for custody or visitation. A legal parent is also responsible for supporting a child. Once Minnesota law names a man as the legal parent of a child, he has certain rights, duties and obligations that go along with being the legal parent of that child.
Expert:  Dimitry K., Esq. replied 4 months ago.


My apologies but that is FALSE. There is no law granting sole full legal and physical custody to the mother. That is only true if the father is not listed on the birth certificate as the father. Otherwise the rights are fully co-equal between the parents. What you listed is what many believe to be a viable legal position but it does not happen to be one.


Dimitry, Esq.