Paternity

In Indiana, if the parents are not married, any case involving their child(ren) is called a Paternity case, even if both parents know who the father is.

If the mother of a child is married when the child is born, the husband is legally presumed to be the father of the child. However, if the mother is not married when the child is born, the child’s paternity may be established in one of two ways: through the filing of a petition to establish paternity with the court, or through the execution of a paternity affidavit.

The presence of a father’s name on the child’s birth certificate does not establish that person’s legal paternity of the child. Legal paternity is important to establish for several reasons, including but not limited to rights of inheritance and child support.

When a child is born outside of marriage, the parents may be presented with a paternity affidavit at the hospital. If there is no doubt as to the biological paternity of the child, the parents may sign that affidavit, thus establishing the father’s legal paternity of the child. The paternity affidavit is then filed with the State Department of Health. The valid execution of a paternity affidavit establishes the father’s paternity (and is generally not subject to later being set aside, with a few uncommon exceptions), and establishes that he is entitled to reasonable parenting time with the child. The mother will retain primary physical custody, and the father is generally entitled to parenting time pursuant to the Indiana Parenting Time Guidelines, at a minimum.

Paternity affidavits also offer the option of allowing the parents to choose to have joint legal custody over the child. However, if the parties opt for joint legal custody, that election is valid only if they follow up with genetic testing that proves biological paternity of the child.

A paternity affidavit may be signed at or near the child’s birth, at the hospital, by both parents. If they choose not to execute a paternity affidavit at the time of birth, it may also be executed at the local health department at a later time. If a paternity affidavit is not executed, one parent or the other may establish paternity through the filing of a court action called a petition to establish paternity.

If one parent files such a petition, the other parent may admit and agree to the paternity of the child, or in the alternative, may request that the court order genetic testing to prove paternity. In that case, paternity is not established until genetic testing establishes that the alleged father is actually the biological father.

After a court issues an order establishing a father’s paternity (or concurrent with the paternity order), the court may also issue orders on legal and physical custody, parenting time, child support, health insurance, tax deductions, and other child-related issues.

A parent who is caring for the child may also enlist the assistance of the child support division of the local county Prosecutor's office for the purpose of establishing paternity and child support. The child support division will charge a small fee for their services, unless the parent is receiving certain public benefits. The child support division will not assist with other issues, such as custody or parenting time.

Even if neither parent pursues a paternity affidavit or court action to establish paternity, the local child support division may, on its own without either parent asking, file a petition to establish paternity in order to pursue child support from the non-custodial parent. Such involvement by the child support division is required in certain cases, such as cases where the custodial parent and/or child are receiving certain public benefits, like Temporary Assistance for Needy Families (TANF). If, for example, the mother is receiving TANF, any child support ordered by the court will go to the state first in order to repay the TANF benefits, rather that going directly to the mother. The mother is generally required to cooperate in the collection of child support from the father (for example; it can also work the other way, if the father has custody and is receiving TANF or other benefits), or risk losing public benefits.

There are some situations in which the custodial parent does not have to cooperate in obtaining child support. These are called “good cause exemptions.” Good cause for being permitted not to pursue a child support order, even where public benefits are being received, would include cases where harm would come to the child if paternity is establish and child support paid, such as where there is a history of domestic violence or if the child was born out of rape or incest. The custodial parent has the right to tell the caseworker that there is good cause for not cooperating, but she must give the caseworker evidence to prove good cause. If the custodial parent loses TANF or Medicaid after telling the caseworker that he or she had good cause, he or she has a right to appeal.

If you need assistance with any aspect of establishing paternity or handling issues related to a paternity case, you are welcome to call Stafford Law Office, LLC for a consultation.

Disclaimer: This summary is not intended to be comprehensive, and should not be construed as legal advice for your particular situation. Nothing in this website is intended to serve as or substitute for legal representation.