We often answer a lot of client questions about the Indiana paternity laws. Some clients want to know about fathers rights in Indiana and others clients want to know about fathers’ responsibilities. So we have created this article to answer many of the most frequently asked questions and issues.
Please understand that the Indiana paternity laws are expansive and in no way does this article intend to, nor could it, cover all of the laws or the nuances and case law interpreting the Indiana paternity laws. You need to speak to a qualified Family Law Attorney to discuss the specific facts of your case. But we will address some of the more common issues.
Specifically, in this article, we are going to look at the following:
- What are the Indiana Paternity Laws;
- The Importance of Establishing Paternity in Indiana;
- The Time Limit to Establish Paternity;
- How to Establish Paternity in Indiana;
- An Indiana Paternity Affidavit;
- An Indiana Paternity Court Case; and
- Custody, Parenting Time and Child Support under the Indiana Paternity Laws.
So, let’s take a look at some of these issues.
What are the Indiana Paternity Laws?
The Indiana paternity laws govern the legal relationship between a father and his children born outside of marriage. It provides for both a father’s rights in Indiana as well as a father’s legal responsibilities, when the children are born to unmarried parents.
Establishing paternity is the process to legally recognize a relationship between a father and a child when the father is not married to the child’s mother at the time of the child’s birth. If a child is born to married parents, establishing paternity is not necessary, and the husband will automatically be presumed by Indiana law to be the child’s father. However, when parents are unmarried at the time of their child’s birth, it may be necessary to establish paternity.
One thing that confuses many people is that all cases in Indiana dealing with custody, visitation or child support for children born out of wedlock are called, and labelled by the court as, paternity cases. It does not matter if both parties agree that a person is the child’s father or even if a DNA test proves it 100%. Even if the issue of who is a child born out of wedlock’s father is not contested, it is still considered a paternity case.
In fact, the whole case will labelled as a paternity case. Indeed, any cause number for an Indiana court case involving issues regarding a child born out of wedlock will have “JP” in the Cause number, which stands for juvenile paternity.
The Indiana paternity laws govern all disputes that arise between parents of child born out of wedlock, including custody, visitation (called parenting time in Indiana), and child support. The Indiana paternity laws do differ in some respects from the laws regarding the same issues in a divorce and we will try to address those differences below.
Why is it Important to Establish Paternity in Indiana?
The importance of establishing paternity in Indiana usually arises when a couple who had a child together are no longer in a relationship. Now if the relationship between the parents has soured, many parents want to know what are Fathers Rights in Indiana and what are Father’s responsibilities under Indiana law? Therefore, a paternity case may be opened to determine any or all of these issues.
If the parties were married, these same issues are decided in a divorce/dissolution case. If the parties are not married, these issues are decided in a paternity case. While some of the issues and laws in divorce and paternity cases are treated equally, some issues and laws are different under the Indiana paternity laws.
One important reason for establishing paternity in Indiana is that it ensures that a father’s children have legal rights to his inheritances, life insurance, and/or Social Security and veteran’s benefits.
Another important reason to establish paternity is that it allows a father to register with Indiana’s Putative Father Registry. Registering with Indiana’s Putative Father Registry require the Father who is registered to be given notice of any adoption, if a mother puts their child up for adoption.
Establishing Paternity can also end arguments between the parents of a minor child about the issues of custody, visitation, and child support. While the parents may have had an informal agreement regarding one or all of those issues, or the parents were still in a relationship and living together, that can easily change after an argument, the end of the relationship between the parents, and/or when one parent refuses to honor the parties’ informal agreement. This can lead to one or both parents feeling helpless with regarding to seeing their child or receiving child support.
Once an Indiana Court establishes paternity and issues a Court order regarding custody, visitation and child support, the Court’s order should end the questions and arguments about custody, parenting time, and child support arrangements. There still may be argument between the parties, or one parent still may not follow the Court’s order, but the party not following the Court’s orders could be held in contempt of court for those actions. Without a Court order on paternity, the other party really has no recourse.
How Long Do You Have To Establish Paternity in Indiana?
According to Indiana paternity laws, a paternity case must be filed no later than two (2) years after the birth of the child unless:
(1) both the mother and the alleged father waive the limitation on actions and file jointly;
(2) support has been furnished by the alleged father or by a person acting on his behalf, either voluntarily or under an agreement with:
(A) the mother;
(B) a person acting on the mother’s behalf; or
(C) a person acting on the child’s behalf;
(3) the mother, the department, or a prosecuting attorney operating under an agreement or contract described in IC 31-25-4-13.1 files a petition after the alleged father has acknowledged in writing that he is the child’s biological father;
(4) the alleged father files a petition after the mother has acknowledged in writing that he is the child’s biological father;
(5) the petitioner was incompetent at the time the child was born; or
(6) a responding party cannot be served with summons during the two (2) year period.
If one of these six (6) conditions exit, the paternity petition must be filed not later than two (2) years after the condition described ceases to exist. This can be difficult to understand so its best you contact an Indianapolis Family Law Attorney . Have Questions?
How to Establish Paternity in Indiana?
Remember if the parties are married, then the husband is presumed to be a child’s biological father. If the parties are not married, the Indiana paternity laws control. Most of the laws governing paternity actions are contained in Indiana Code 31-14-1 et. seq.
One question we often hear from clients is “Does signing a birth certificate establish paternity in Indiana?”
Establishing paternity in Indiana can be done in two ways. According to the Indiana paternity laws, paternity can be established in Indiana as follows:
- The mother and father can execute a paternity affidavit; or
- The mother, the father, the child, or a state agency (typically the local county prosecutor), can file a paternity case in state court.
Now many clients will tell me that there is no dispute that so and so is the child’s biological father. But regardless of whether it’s in dispute or not, paternity has to be established in one of these two ways.
Indiana Paternity Affidavit
Lets start with the basics. An affidavit is generally a written statement which is voluntarily made by a person or persons and signed under oath or affirmation. Basically it’s a document where someone is swearing things to be true. So an Indiana Paternity Affidavit is a document where both a person claiming to be the father and mother are swearing that the person claiming to be Father is indeed the child’s biological father.
A properly executed Indiana Paternity Affidavit establishes a father’s paternity and gives rise to fathers’ rights in Indiana and responsibilities to the father. The requirements of a proper Indiana Paternity Affidavit are numerous and can be found in Indiana Code 16-37-2-2.1. That statute explains, among other things, that a Paternity Affidavit must be executed on a form provided by the Indiana State Department of Health and is valid only if:
(1) Signed at a hospital within 72 hours after child’s birth; or
(2) Executed through a local health department before the child reaches the age of emancipation.
A properly executed paternity affidavit establishes paternity (his fatherhood of a child). However, a man who signs a paternity may, within sixty (60) days of the date that a paternity affidavit is executed under this section, file an action in a court with jurisdiction over paternity to request an order for a genetic test to challenge that determination.
Who has custody of a child when the parents are not married in Indiana?
A common question asked in Indiana paternity cases is which parent has custody of a child when the parents are not married and there is no court order. So this is assuming the parties have not filed an Indiana paternity case with an Indiana Court to decide this already.
Well, Indiana Code Section 31-14-13-1 answers that question, stating: “A biological mother of a child born out of wedlock has sole legal custody of the child, except as provided in IC 16-37-2-2.1, and unless a statute or court order provides otherwise, . . .”
So the statute says two things, a mother has sole legal custody of child unless it says otherwise in the Indiana Paternity Affidavit (if there is one timely and properly executed) or unless a Court order says otherwise.
Regarding custody, the Indiana Paternity Affidavit Statute explains that the Paternity Affidavit must contain the all of following statements:
(1) A statement:
(A) that, if the mother and the person described in subsection (g)(2) check the box located next to this statement and sign on the signature lines described in subdivision (2), the mother and the person described in subsection (g)(2) agree to share joint legal custody of the child; and
(B) that joint legal custody means that the persons sharing joint legal custody:
(i) share authority and responsibility for the major decisions concerning the child’s upbringing, including the child’s education, health care, and religious training; and
(ii) have equal access to the child’s school and medical records.
(2) Two (2) signature lines located below the statements described in subdivision (1).
(3) A statement that, if the mother and the person described in subsection (g)(2) do not agree to share joint legal custody, the mother has sole legal custody unless another determination is made by a court in a proceeding under IC 31-14.
(4) A statement that even if the mother and the person described in subsection (g)(2) share joint legal custody, the mother has primary physical custody of the child unless another determination is made by a court in a proceeding under IC 31-14.
(5) A statement that, if the mother and the person described in subsection (g)(2) agree to share joint legal custody as described under subdivision (1)(A), the agreement to share joint legal custody is void unless the result of a genetic test performed by an accredited laboratory:
(A) indicates that the person described in subsection (g)(2) is the child’s biological father; and
(B) is submitted to a local health officer not later than sixty (60) days after the child’s birth.
(6) A statement with signature lines that affirms that an individual described in subsection (t) has had an opportunity to consult with an adult chosen by the individual.
So according to the Indiana Paternity Affidavit Statute, a Mother and Father can agree to share joint legal custody at the time that they both sign the Paternity Affidavit. The Paternity Affidavit Statute further explains that joint legal custody means that the parents:
(i) share authority and responsibility for the major decisions concerning the child’s upbringing, including the child’s education, health care, and religious training; and
(ii) have equal access to the child’s school and medical records.
However, the Indiana Paternity Affidavit Statute explains that even if the parents agree to joint legal custody in the Indiana Paternity Affidavit, Mother still has primary physical custody of the child. Physical custody is different than legal custody. Physical custody means that a parent has the right to have a child live with him or her.
And, the Indiana Paternity Affidavit Statute goes on to explain that even if the parents agree to share joint legal custody in a Paternity Affidavit, that agreement is void unless the result of a genetic test indicates that the person is the child’s biological father AND that the genetic test result is submitted to a local health officer not later than sixty (60) days after the child’s birth.
So if a father of a child born out of wedlock wants to have physical custody of his child, he will have to file a paternity action. Even having joint legal custody requires that the parties do something more than agree to it in the Paternity Affidavit, i.e. – the Father will have to take a genetic test and submit it to local health officer, which many people fail to accomplish in time.
Therefore, if a child’s biological Father wants joint legal custody (without a paternity affidavit and genetic test) or physical custody, he will have to file a paternity action in an Indiana court.
So you should understand that while an Indiana Paternity Affidavit might solve the legal issue of who is the biological father of a minor child, it does not completely solve the issues of custody, visitation or child support under the Indiana paternity laws.
And remember, a paternity action in court is about more than just who is a child’s biological father. To solve those other issues, we’ll need a paternity action filed in court. And a paternity action in court, is also the other way of establishing paternity without a paternity affidavit.
Indiana Paternity Case
If there is no Indiana paternity affidavit executed to establish paternity, then either parent, the child (up to the age of 20), the Indiana Department of Child Services, or the prosecuting attorney, can file a paternity case in court to establish paternity. The case needs to be filed in the Indiana county in which the child, mother, OR alleged father resides.
Filing a Paternity case in Indiana starts with a Verified Petition to Establish Paternity. A Verified Petition means that the person who signed the Petition is swearing under penalties of perjury that the Petition is true and accurate.
There are several pieces of information that need to be included in the Verified Petition to Establish Paternity. These include, but are not limited to: the name and address of the mother and father; the full name and date of birth of the child; whether a Paternity Affidavit was signed; whether a party is requesting genetic (aka DNA) testing; and what the filing party is requesting as far as custody, paternity, and child support. Since the Petition is verified, it is extremely important that it be true, accurate, and complete. Before submitting a Verified Petition to Establish Paternity, you should consider contacting an Indiana Family Law Attorney for more information and to discuss your case.
Once the Verified Petition is filed and a paternity case is started, the following issues are going to be decided in an Indiana paternity case:
- Paternity – Who is the minor child’s biological father, if it is still at issue;
- Custody;
- Parenting Time (aka Visitation) for the non-custodial parent; and
- Child Support.
There are other issues as well that can be argued, or decided, in an Indiana paternity case, but generally, these are the big issues. In an Indiana paternity case, the parties can reach an agreement and file it with the Court. Or, if they cannot agree, the parties can have a hearing and the court will decide these issues. So let’s briefly look at some of these issues.
Genetic Testing To Establish Paternity in an Indiana Paternity Case
If a party or parties file an Indiana paternity case and both parties agree that a person is a child’s biological father, then paternity (“fatherhood”) can be established without a hearing and a genetic test is not required. However, if any party requests a genetic test, the Court is required to order all of the parties to a paternity action to undergo blood or genetic testing by a qualified expert approved by the Court.
If a man who is the alleged father is a paternity action fails to show up at a hearing relating to his paternity, the court is required to enter a default order against the man (a Court order holding that he is the child father) if the Court has proof that the man received notice of the hearing and still chose not to show up.
If the parties agree than a person is a child’s biological father, or a genetic test concludes (with at least 99% certainty) that a person is a child’s biological father, or the Court enters a default Order than a man is a child’s father, now the case will focus on the Fathers’ rights and responsibilities. The fathers’ rights in Indiana include his rights to custody, whether legal and/or physical, and his rights to parenting time (visitation) with the child. Likewise, the father has responsibilities which include, but are not limited to, child support.
Indiana Custody Laws Under the Indiana Paternity Laws
As we discussed above, Mother has legal and physical custody of a child born out of wedlock, unless Mother and Father agree in an Indiana Paternity Affidavit that Father has joint legal custody and Father timely submits a genetic test to a local health officer.
If either party files an Indiana paternity case, now the Court can award Father custody (either legal, physical, or both) jointly with Mother, to Mother alone, or to Father alone. The Court can award Father custody without a hearing if both Mother and Father agree to it in a written stipulation filed with the court, or if they file a joint petition with the court, which resolves all the issue of custody, parenting time and child support for the parents.
If Mother and Father cannot agree, then the Court will have a hearing to hear evidence regarding custody, parenting time and child support.
How Will an Indiana Court Determine Custody in an Indiana Paternity Case?
Similar to a divorce case where a Court is determining custody, in an Indiana Paternity Case, Indiana Courts will initially determine custody with the best interests of the child in mind. There is a not a presumption favoring either parent, but the court shall consider all relevant factors, including:
(1) The age and sex of the child.
(2) The wishes of the child’s parents.
(3) The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
(4) The interaction and interrelationship of the child with:
(A) the child’s parents;
(B) the child’s siblings; and
(C) any other person who may significantly affect the child’s best interest.
(5) The child’s adjustment to home, school, and community.
(6) The mental and physical health of all individuals involved.
(7) Evidence of a pattern of domestic or family violence by either parent.
(8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 2.5(b) [IC 31-14-13-2.5(b)] of this chapter.
You may notice that the word “initially” is underlined. That is because WHEN a party files for a paternity action makes a difference as to what standard an Indiana Court will use when determining custody. If the child has been in the custody of one parent (mainly Mother for the reasons stated above) for a period of time before a paternity action is filed, an Indiana court may then treat a the custody determination in a paternity action as a modification of custody. The standard in a modification of custody uses the same factors as listed above, but says:
The court may not modify a child custody order unless:
(1) modification is in the best interest of the child; and
(2) there is a substantial change in one (1) or more of the factors that the court may consider under section 2 and, if applicable, section 2.5 of this chapter.
So, the difference is this: In an initial custody determination, there is no presumption favoring either parent. But in a modification, the Court will favor the parent who has custody already and the parent who does not have custody has to show that there has been a substantial change in one of the factors. So the modification standard is a tougher standard for the non-custodial parent than the initial custody determination standard. Lets’ look at examples of this from an Indiana case to see how this plays out:
In one Indiana paternity case, the child’s parents lived together for the first two years of the child’s life and near each other for the next six years until father married and moved to a nearby town. Father did not file a paternity action until Mother planned to move to Virginia, almost four years later. In that case, the Indiana Court of Appeals said that modification standard was appropriate because father had basically agreed, or acquiesced, to Mother’s custody for ten years after the parities separated by not filing a paternity case.
However, in another Indiana Paternity case, the Indiana Court of Appeals held that the initial custody standard was appropriate because in that case Father, Mother, and child lived together as family until child was four. And when Mother left home, Father immediately filed a paternity case to establish paternity and determine custody, so in that case, the Court did not consider that Father agreed, or acquiesced, to Mother’s custody.
There are many other relevant Indiana paternity laws regarding a custody determination and these types of analyses can be complicated. You should speak to a qualified Indianapolis Family Law Attorney to discuss the specific facts of your case. Your lawyer should be able to determine the proper standard to be used, determine the evidence needed to support the factors listed above, and how to properly introduce and present that evidence to an Indiana Court.
How Does an Indiana Court Determine Visitation in an Indiana Paternity Case?
Once the Court determines which parent has custody of the child, the noncustodial parent is entitled to visitation with the child, called parenting time in Indiana. The Indiana Paternity laws state that:
(a) A noncustodial parent is entitled to reasonable parenting time rights unless the court finds, after a hearing, that parenting time might:
(1) endanger the child’s physical health and well-being; or
(2) significantly impair the child’s emotional development.
If the parties cannot agree on parenting time for the noncustodial parent, the court will hear evidence from the parties at a hearing and decide the parenting time for them. The Court will consider several factors in deciding on the parenting time schedule for the mother and father.
The Indiana Supreme Court has issued the Indiana Parenting Time Guidelines to provide a model for parenting time, which may be adjusted by the parties or Court depending upon the unique needs and circumstances of each family. The preamble to the Indiana Parenting Time Guidelines opens by stating that the Indiana Parenting Time Guidelines are based on the premise that it is usually in a child’s best interest to have frequent, meaningful and continuing contact with each parent. We believe it is important that each parent read and understand these guidelines as Indiana Courts frequently refer to, defer to, and order the parties to follow, these guidelines for determining parenting time and to resolve disputes.
In the event the parties cannot agree on parenting time for the noncustodial parent, the Indiana Parenting Time Guidelines represent the minimum time a parent should have to maintain frequent, meaningful, and continuing contact with a child. The Court is not likely to award a parent less parenting time than outlined in the Indiana Parenting Time Guidelines without good reason.
For example, if a parent lives in another state or another country, that may be a reason the Court fashions a different remedy. Or if a party has a drug or alcohol issues, that may be a reason the Court would curtail parenting time. Likewise, lack of a clean or safe home for the child would be another reason. Evidence of a pattern of domestic abuse may be another reason. If you have questions about your specific situation, you should speak to a qualified attorney to discuss the Indiana paternity laws.
The Indiana Parenting Time Guidelines also take into consideration holidays and other circumstances such as birthdays, spring and winter breaks, and summer vacations. They also provide for different parenting time for the noncustodial parent based on the age of the child or children.
Further, the Indiana Parenting Time Guidelines address other issues regarding parenting time, such as exchange locations for the child, missed parenting time, and relocation (e.g. when a parent moves).
While the Indiana Parenting Time Guidelines provide information and guidance on a broad-range of issues that can come up during parenting time, they do not answer every single issue that can arise. The decision to deviate from the Guidelines ultimately rests with the mother and father if they can agree, or the court if they cannot. It is important to speak to an Indianapolis Family law attorney to have your questions answered about parenting time in Indiana based on the specific facts of your case.
Once parenting time is established, the Indiana paternity laws do allow parenting time to be modified later. This can be by agreement of the parents or by Court order. But again, the party trying to modify the parenting time order usually will have to show a good reason to change the Court’s prior order or the parties’ agreement.
How Does an Indiana Court Determine Child Support in a Indiana Paternity Case?
If paternity is established, the Court can issue an order establishing child support. According to the Indiana Paternity laws, the child support order issued by the Court MAY include the period dating from the birth of the child and MUST include the period dating from the filing of the paternity suit.
A child support order issued by an Indiana court in a paternity case could go all the way back to the birth of the child, without regard to the age of the child. In fairness, the court would likely hear evidence as to how much support and financial assistance the noncustodial parent has provided to the child and other parent prior to the Court’s initial child support order if awarding back support.
As for the amount of child support a parent would have to pay under the Indiana paternity laws, that is a calculation that is different in almost every case. There is no one amount. The Indiana Supreme Court has adopted the Indiana Child Support Guidelines. The Indiana Child Support Guidelines state that there is a rebuttable presumption that the amount of the award which would result from the application of the Indiana Child Support Guidelines is the correct amount of child support to be awarded.
The following are some factors considered in calculating the child support obligation amount:
- Weekly Gross Income;
- Number of Children;
- Prior child support obligations;
- Amount of alimony or maintenance paid;
- Number of overnights each parent has the child;
- Weekly amount paid for child care; and
- Weekly amount paid for children’s portion of health insurance.
Indiana also has a Child Support Calculator that allows a party to enter this information into a calculator to get an estimate as to the amount of child support. If you do not know the amount of the other parent’s weekly income or the other amounts, after you file an Indiana Paternity case, you are allowed to send discovery to the other party to obtain documents and answers to questions to obtain this information if they will not share it with you voluntarily. You can request paystubs, W-2s, tax returns, bills, etc.
While the Indiana Child Support Calculator can give you an estimate of a child support obligation, it is important you speak to a Qualified Indianapolis Family Law Attorney about the specific facts of your case. While it seems like a straightforward calculation, there are a lot of laws that govern these factors.
For example, weekly gross income can include irregular income such as bonuses or overtime pay. What if one parent is now married and has a spouse who earns a significant amount of money? How does that affect the calculation? Can that income be imputed to that parent? Or what if one parent wins the lottery? How does that affect the calculation? Or what if the parties agree to a lower or higher child support obligation than what the child obligation worksheet states? Will the Court accept that amount? All these issues can be complicated and should be discussed with a qualified Indianapolis Family Law attorney.
Once ordered by the Court, an Indiana child support obligation can be modified later. However, it can only be modified if it has been at least one (1) year since the last child support order AND the difference in the new obligation is at least twenty (20)% from the prior obligation amount, either lower or higher.
Also, a child support obligation can be modified if a party can prove to the Court that a substantial and continuing change of circumstances exists. What actually constitutes a substantial and continuing change of circumstances should be discussed with a qualified attorney.
Schedule a Free Consultation with a Indianapolis Family Law Attorney Today!
This article contains a lot of information on the laws and procedures an Indiana Paternity case. As you can see, there are a lot of laws governing Paternity in Indiana and trying to navigate a paternity case on your own can be difficult. We have tried to address many of the issues that commonly arise under the Indiana Paternity laws. However, reading an article is NOT a substitute for speaking to a qualified Paternity lawyer in Indiana.
If you have questions about the Indiana Paternity Laws, Fathers Rights in Indiana, Fathers Responsibilities in Indiana, if you are involved in a paternity case in Indiana, or if you are contemplating filing a Paternity case, it is important that you speak to a qualified Indianapolis Family law attorney to discuss the specific facts of your case. The attorney can advise you regarding the Indiana paternity laws, help you determine a plan of action, discuss potential agreements, prepare for and attend hearings with you, or answer any other questions that you may have regarding paternity the Indiana custody laws or paternity laws.
Avnet Law understand the issues and can advise clients regrading the Indiana Paternity Laws. Avnet Law represents clients in divorce actions in Indianapolis, Noblesville, Fishers, Carmel, Westfield, and central Indiana.
Call 1-877-77-AVNET to Schedule a Free Consultation with an Indianapolis Family Law Attorney today or contact us below with any questions you may have about your case and the Indiana paternity laws or the paternity process in general.