Divorce and paternity actions are often complex when the parties involved are the predictable ones – mother, father, and child. However, not all divorce and paternity actions are so clean-cut.
In many instances, because the concept of “family” is expanding and evolving significantly in this century, there are others involved. Maybe there are stepchildren or half siblings involved as families blend.
But what if there is a child involved whose paternity is unknown? For example, a mother may have been seeing a man outside of her marriage and becomes pregnant. Under Indiana law, it is presumed that a child born of a marriage is the husband’s child1.
The policy behind this law is to encourage paternity to be established or presumed, so that children are not “fatherless”. Paternity is also presumed if the man and mother attempted to marry (even if the marriage is void or voidable) and if the father takes a genetic test where the results show at least a 99% probability that the father is the child’s biological parent2.
So, if the parties are married and mother has a child and it is unsure who the father is, the husband will be presumed to be the father. Further, his name will likely be put on the birth certificate, assuming he does not challenge the paternity, and, oftentimes he will raise the child, especially if he is unaware of the paternity issue at the time of birth.
A delicate and complex issue arises if the father later stops caring for the child, claiming that the child is not his. Indiana caselaw sets a precedent that discourages this scenario.
Indiana cases discuss the concept of “loco parentis”- essentially that the father has acted as the child’s parent and thus shall be considered the child’s father3. However, Indiana Courts have also held that if paternity is vacated due to fraud or mistake, that person’s child support obligation also terminates4.
There are numerous difficulties and complex issues regarding children born during marriage, but who are not biologically the husband’s. Indiana caselaw addresses the specifics of these issues, but they are fact-sensitive and often difficult to sort through, even with specific legislation.
Understanding paternity and Indiana law, including the presumption of paternity can give parents power in applying the proper law. We hope that this blog post has been informative about the nuances of paternity during marriage. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.
