The answer is, “It depends”.
Under the laws covering children born to unwed parents, a father may legally acknowledge he is the child’s biological father. This is done by the parents entering into (filling out and signing) a Hospital Paternity Affidavit at the hospital soon after the child’s birth. This ensures the father participates in naming the child and his name appears on the child’s birth certificate. This blog covers what custody rights a father has upon entry of the Hospital Paternity Affidavit and what a putative (potential) father should consider if he is unsure whether he is indeed the father (every attorney has had a surprised client when DNA testing excluded him as the father).
For a start, a proper Hospital Paternity Affidavit legally establishes a man as the biological child of the parties’ child; this means the father then has a right to custody or parenting time, a legal duty to support the child and may have to share in a portion of the birth expenses. For this reason, if you have any doubt whether you are the child’s father, you should not sign off on a Hospital Paternity Affidavit until you are sure. If you do, you may be financially liable for, and required to pay, child support for the child until he or she finishes high school and contribute toward the cost of college. Where there is doubt, the hospital may facilitate DNA testing1 or you can later file a paternity action in court and get court-ordered DNA testing. The fact you do not enter into a Hospital Paternity Affidavit does not mean you cannot later establish yourself as the legal father through court proceedings.
Assuming you have properly executed a Hospital Paternity Affidavit, you have lawful custody with the child’s mother in a technical sense. For many couples, this is enough to satisfy their needs; they leave the hospital and then live together like any other married couple and raise their child. However, if the parties split up and the mother refuses to work out an agreeable parenting schedule with the child’s father, or worse yet, moves away on a whim, this father has a BIG problem. The Hospital Paternity Affidavit is not automatically connected to a court proceeding so the father can immediately go to court and seek sole custody, parenting time, or object to the move.
This often confounds fathers who find themselves in this situation. Think of it like this. You hit the lottery and are a now a millionaire by matching all the winning numbers. While that is legally true if you have the ticket, it does not matter—and you cannot buy the dream car or house–until you take the ticket to the lottery office and claim the proceeds. The lottery does not know who you are to come to you to give you the large check. Likewise, after entering into a Hospital Paternity Affidavit (like the winning ticket), a wise father files a paternity case (like going to the lottery office) and asks the court to recognize his paternity. If not, a father may have to file this action after the mother leaves and must wait for a hearing to first establish custody (judicial acknowledgment of the paternity by the certified Hospital Paternity Affidavit) challenge custody, parenting time or to challenge the move.
With the passage of any time in this situation waiting for the court, a mother may file a paternity action in the county she lives with the child to get a court order for child support. This has the unprepared father sometimes litigating in a far-flung county all the while the child is becoming rooted in another place with the mother and reducing his chances in court—the courts do not like to disrupt a child’s settled living arrangement and consider this factor in deciding custody, parenting time, and the relocation in the child’s best interest. The legal takeaway is simple: a biological father who wants to be automatically involved in his child’s life, as would be the case with a married couple, should legally act to establish paternity and have it recognized by a court before he gets behind the proverbial eight ball which reduces his chances of physical custody.
This blog post was written by attorneys at Ciyou & Dixon, P.C. who handle domestic cases of all types in all Indiana trial courts and on appeal. This blog post is written for general educational purposes. It is not intended to provide legal advice or be a solicitation for legal services. It is an advertisement.
This test may not be admissible in court to establish paternity. Equally, a store-bought DNA test kits’ results with a 99.99% probably of paternity are unlikely to able to be admitted in court to legally establish paternity under the Indiana Rules of Evidence.
- As a cautionary tale, if a biological father does not establish paternity and his parents are bonded with the child as grandparents, this eliminates their right to seek grandparent visitation. If a father dies and paternity is not established before death or shortly after, these grandparents have no rights to their grandchild.
