Dixon & Moseley, P.C. advocates are frequently presented questions about how to establish paternity and why that is different than just raising a child. This is indeed a vast difference. Many people hold themselves out to be parents and raise children born outside of wedlock without too much difficulty, although school registration and health care are problematic.
In the rest of the cases, paternity must be legally established. At common law, which forms the basis for Indiana’s legal system, a child born outside a marriage was legally labeled a “bastard” child. With more progressive thinking came the realization that this was not a prudent label and could cause long-term psychological harm to a child.
Further, the notion of a traditional marriage and nuclear is ever-changing or being tested. As such, the General Assembly passed the Paternity Act to undo common law. Under the Paternity Act, there are three (3) different ways to establish paternity of a child born out of wedlock.
The first is perhaps the most common legal tool for individuals in committed relationships. Under the Paternity Act, which references health and hospital statutes, a man who reasonably appears to be a child’s father may enter into a hospital–executed paternity affidavit at or within seventy two (72) hours of birth.
This legally established paternity by operation of law when sworn before a notary public. It is a crime to use this provision without this factual/legal basis. This is simple and inexpensive. The problem with using the legal way to establish paternity is if a later dispute arises between the parents, law enforcement officers do not have a traditional court order to follow to aid in solving these disputes.
For this reason, it is common place to subsequently file a paternity action in a trial court based on the establishment of paternity at the hospital. This can also delineate the custody provisions that automatically attach with entry into a hospital paternity affidavit or modify these terms.
The second and third methods are set out in the Paternity Act itself. The first is an agreed entry, which may be supported by and based upon a hospital paternity affidavit or after-the-fact agreement to paternity in the putative father. Upon order by the trial court, this gives the previously established paternity a way to be enforced.
The third is where paternity is contested at that time or in the future. In such cases, upon the filing of a paternity action, the trial court orders DNA testing of the mother, child and potential fathers. The test must be by a means and method and with an expert approved by the trial court.
In addition, a chain of custody must follow the DNA sampling to ensure it is not mixed up or tampered with. Nevertheless, DNA results may still be contested. Ultimately, if this is the case, the matter is tried in the court.
As with many legal issues, there is more to the story. Be aware.
In cases where paternity is not established at birth, a putative (potential father) must file his paternity action within two (2) years or be barred from doing so. However, an additional provision of the Paternity Act allows a number of people to seek to establish paternity until the child is twenty (20). This is brought indirectly by the child by his or her “next friend.”
Notwithstanding, at some point in time a putative father in particular may be barred by equitable principles (not legal principles found in the Paternity Act). Under these, the failure to act by a putative father in a reasonable time to establish paternity may bar his claim if another man has established paternity or assumed the father’s role.
Finally, within this complicate mix, there are presumptions of paternity. These do not legally establish paternity, but do make a rebuttable presumption that a man is a biological father.
The two (2) are where a child is born with 300 days of a divorce or a DNA test established paternity by a .99 % result the putative father is the child’s biological parent. Where this is the case, a man who is not already established as the child’s legal father must rebut the presumption.
At Dixon & Moseley, P.C. we hope this blog post gives you a working overview of the Paternity Act. If so, it has met its goal. If you face a paternity matter at the hospital, in Title IV(d) court, or otherwise, you are well to seek the counsel of an attorney. Paternity cases pull at the heart strings of us all and have long-lasting consequences. Dixon & Moseley attorneys handle Paternity cases throughout the State of Indiana.
