When a child is born to a married couple, it may seem ridiculous to ask the question, who is the daddy? But, sometimes, this may not be a ridiculous question after all. Most all divorce petitions and decrees include the names and ages of the children born of the marriage (if under 21), but also include the statement “Wife is not now pregnant.”1 Some may wonder why this is important to state?
Whenever a couple divorces, if there are minor children involved, the court must address the issues of custody, parenting time and child support. Thus, if the Wife is pregnant at the time one of the parties requests a divorce, or at the time of the divorce itself, the court needs to address the issues of custody, parenting time, and child support for the yet unborn child of the marriage. Although, Indiana has recognized that absent exigent circumstances, the best practice is to refrain from granting a divorce while the Wife is pregnant.2
In Indiana if a child is born to a married woman, or within 300 days (just less than 10 months) after the marriage was terminated by death, annulment or dissolution, that woman’s husband is presumed to be the father of the child.3 The Court of Appeals has held that when a divorcing couple does not raise the issue that the husband may not be the father, such silence will establish paternity.4 However, if the issue of whether the Husband is the father is raised in a divorce proceeding, the presumption that the Husband is the father can be rebutted with direct, clear and convincing evidence that the Husband:
- is impotent
- was absent during the time of conception (i.e. deployed military/jail)
- was only present with the mother in circumstances which would clearly not allow for sexual intercourse
- was sterile
- is excluded as the child's father based upon blood grouping test results (i.e. DNA).
Thus, while it may be unpleasant to deal with, when the situation arises that a Wife becomes pregnant with another man’s child, who is not her husband, and a divorce is sought, there clearly arises an issue of paternity in the pending dissolution action. Husband (and/or Wife) must speak up and advise the court that Wife is not pregnant with Husband’s child, but another man is the father, otherwise, it is presumed Husband is the father. A divorce could even arise months or years after a child is born of the marriage. As such, if there is speculation or conclusive proof that the Husband may not (or is not) the biological father, it must be addressed by the dissolution court.
We hope that this blog post has been helpful in understanding paternity as it relates to a divorce action. Every case is different, and it is recommended that you consult an attorney to determine the best course of action to achieve your goals in your specific case. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Lori Schmeltzer.
