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Paternity Litigation

“Do I need to file a paternity action if mom and I get along? What are the risks if I am unsure about paternity and just sign the Hospital Paternity Affidavit or stipulate to paternity? If I signed a Hospital Paternity Affidavit, don’t I have custody?

Paternity involves children who are born out of wedlock and involves many technical statutes to give putative father’s and biological mother’s significant legal rights.  Because public policy favors intact families, Title 16 of the Indiana Code, which covers “Health,” was adopted; this is a statute that allows the Indiana State Department of Health to provide Hospital Paternity Affidavits to establish paternity at birth, or almost immediately after birth because families are valued institutions in our society. 

If these are timely and completely filled out, the Hospital Paternity Affidavit establishes paternity and gives rise to parental rights and responsibilities to the biological father.

Indiana Health and Hospital Statutes

While some couples of a child born out of wedlock informally agree to physical and legal custody terms (and support for the child), this is rare. This is where skilled legal counsel is helpful. A skilled domestic attorney can file the Hospital Paternity Affidavit with the proper trial court under the Paternity Act (statutes) in the correct venue (county as set forth in the trial rules) and request it take judicial notice paternity has been established and request a hearing to address physical and legal custody, parenting time, and child support.

Indiana Paternity Statutes

Sample of a Petition to Established Paternity by Judicial Notice

Ultimately, there are three steps to start and finish a paternity case:

  • Establish paternity through execution of a Hospital Paternity Affidavit or as prescribed in the Paternity Act, which occurs by agreement and/or DNA testing.
  • Determine physical and legal physical custody.
  • Calculate child support.

Physical custody, as with divorce, can be joint, on some type of rotation, such as week on, week off, or on alternating days, such as 5-2-2-5. With infants, this is typically harder. Joint physical custody tends work better with children that are a little older. This is set forth in the Indiana Parenting Time Guidelines. However, joint physical custody of even an infant is always a possibility if this is your desire and the evidence establishes this it is in the child’s best interests. If joint custody is not awarded to the parents, then the Indiana Parenting Time Guidelines are presumed to apply to set forth parenting time. It is worth noting, again, that the Indiana Parenting Time Guidelines different for a child under three (3) years of age versus older children. However, a non-custodial parent can seek more parenting time with an infant or older child than the Guidelines anticipate if he or she can show it is in the child’s best interests. Interestingly, the trend is joint physical custody, but this is not yet the law.

Indiana Parenting Time Guidelines 

Typically, the non-custodial parent pays child support as determined by the Indiana Child Support Rules and Guidelines which is based on the parents’ gross weekly income. A non-custodial parent is given credit and a reduction in weekly child support depending on how many overnights he or she has with the child as parenting time. The more overnights, the more credit. However, the court can deviate and order a different amount of child support if the evidence supports same. This, again, is discretionary and based on the evidence you develop and present with your lawyer.

Indiana Child Support Rules and Guidelines

It is more common for parents involved in paternity litigation to share joint legal custody. Legal custody involves decisions about a child’s educational training, religious up-bringing, and healthcare decisions. If the parents cannot agree, then the choice is made by the court after a hearing. If there are vast differences in the parents’ views on these matters, the court can order sole legal custody to either parent. The court can even apportion these three types of legal custody between parents, where one might have sole medical decision-making and the other categories of legal custody shared jointly. This is where a lawyer can be of great assistance to you if this situation exists in your case. It is all about presenting the relevant evidence to the court. However, the necessary evidence to prevail on legal custody is not that the parents are disagreeable at times, but that they cannot agree on these narrow issues of legal custody.

In the absence of a completed Hospital Paternity Affidavit presented to the court to take notice of, a biological mother, putative father, or the State may file a paternity action suing the putative father to establish paternity. At this time, the parties may stipulate to paternity or a putative father can demand a DNA tests to determine if he is excluded as the father. Presupposing the putative father is confirmed as the biological father by DNA testing, the court can order child support paid retroactive to birth and order reimbursement for birth expenses. Any father who is unsure of his paternity should retain counsel and vigorously defend in the paternity action. Stipulating to paternity when you are unsure if you are the biological parent may well result in a putative father being deemed a biological father as a matter of law, even if he is not the biological father, with the corresponding duty to pay child support and/or birth expenses. If the child is older, the putative father could have many thousands of dollars owed in child support arrears if paternity is established by agreement or through DNA testing.

Indiana Court of Appeals Published Opinion on Paternity and DNA Testing

Indiana Court of Appeals Published Opinion on Paternity and DNA Testing on Rehearing

Paternity laws and cases are highly technical, and whatever your position is, biological mother or putative father, correctly navigating the legal landscape is critical to protecting your assorted rights in paternity litigation. Ciyou & Dixon, P.C. attorneys handle paternity cases throughout the State, including paternity challenges and appeals of decisions decided by paternity courts. We hope you find this overview of paternity litigation helpful in understanding your rights and need for counsel if you become involved in a paternity case. Ciyou & Dixon, P.C. advocates are here to help you.

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