If two parents are unmarried at the time their child is born, the child is considered a “child born out of wedlock” under Indiana law. The mother’s legal rights and obligations regarding the child automatically vest in her when the child is born, and the mother has sole legal custody of the child until paternity is established. However, a Father may enjoy the same rights, if paternity must be established either by the father signing a paternity affidavit or by filing a Petition to Establish Paternity through the courts and receiving a court order.
If a Father has signed a properly executed paternity affidavit, this conclusively establishes him as the legal father of a child without any further proceedings by a court. An affidavit is often provided to the man by the hospital if he is present for the child’s birth, and, if signed, the man is attesting to a belief that he is a child’s biological father. The execution of this document gives rise to parenting rights and responsibilities of the father, including the right for a mother to obtain a child support order against father, and for reasonable parenting time rights unless another determination is made by the court. Generally, a properly executed paternity affidavit may not be rescinded within 60 days of execution unless certain circumstances exist.
A man who believes that he is the father of the child can also establish paternity through the court system. A father generally has 2 years from the child’s birth to file a petition, however even if it has been longer than 2 years the individual should seek the advice of counsel to determine whether an exception applies. Generally, the child may petition the court for a paternity determination until the age of 20. A party can also request DNA testing, the results of which can create a presumption that a man is the biological father of the child. Paternity may then be established by the parties reaching an agreement and filing the same with the court, or by attending a hearing. The central issues that are addressed in a paternity proceeding include custody and parenting time, child support, and payment of birth expenses. Each case, however, requires special attention based on the specific facts of that party’s situation.
If a father believes that he is the biological father of a child born out of wedlock, but paternity has yet to be established, he is encouraged to register with the Indiana Putative Father Registry. Since father’s rights are not legally enforceable prior to paternity being established, this can mean that a biological father may lose his right to contest a potential adoption of the child, and his parental rights may be terminated. Registering with the Indiana Putative Father Registry can help to prevent this from happening.