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Family Law – Paternity

Two Methods to Establish Paternity in Indiana[1]:

  1. In a court action under Indiana Code Title 31-Family law and Juvenile Law, Article 14 – Family Law: Establishment of Paternity, I.C. § 31-14-1 et. seq.; or
    • Each petition in a paternity action must be verified and captioned as “In the Matter of the Paternity of ________”.[2]
  2. By executing a paternity affidavit in accordance with I.C. § 16-37-2-2.1
    • The party trying to establish paternity through affidavit, should try to file it immediately before or after the birth of a child born out of wedlock.[3]
    • The paternity affidavit can be executed by a hospital if within 72 hours after the child’s birth, or by a local health department before the child reaches the age of emancipation.[4]
    • The paternity affidavit must contain certain information relating to the mother, father, and child, as well as other legally necessary information.[5]
    • Further, under I.C. § 31-14-7-3, a man is presumed as the child’s legal father if he properly executed a paternity affidavit and it was not rescinded or set aside.

Court Proceedings to Determine Paternity

  1. Time For Filing The Action:
    • The Indiana Rules for Civil Procedure apply to all paternity actions in Indiana.
    • In general, the time for filing a court action to determine paternity needs to be filed by either the mother or the father alleging to be the child’s father within 2 years after the child is born.[6] The time can be extended if both the mother and the alleged father waive the limitation on actions and file the action jointly.[7] As well as other statutory exceptions.[8]
  2. Necessary Parties:
    • Generally a paternity action in Indiana courts may be filed by the mother or expectant mother, the man alleging to be the child’s biological father or expectant father, or both parties can file jointly, as well as the child itself.[9]
    • The necessary parties to each action are “[t]he child, the child’s mother, and each person alleged to be the father . . .”[10]
    • Any man who files or is a party to paternity action also needs to register with the putative father registry under C. § 31-19-5.[11]

Presumption of Paternity:

Traditionally at common law, a husband is presumed to be the father of his wife’s child.[12]  Indiana allows for “[a] man [to be] presumed [as the] child’s biological father if the man and the child’s biological mother are or have been married . . . and the child is born during the marriage or not later than 300 days after the marriage is terminated by death, annulment, or dissolution.” At common law and in Indiana, “[t]he fact that a marriage is terminated after a child is conceived, but before the child’s birth, does not overcome or render inapplicable the presumption of the child’s legitimacy.”[13]  This statute is consistent with the 1987 Uniform Parentage Act.  This Act placed more emphasis on the presumption of paternity if the parents of a child were married, or had attempted to marry.[14]

In Indiana there is a rebuttable presumption of a man being the child’s biological father.  This can be established by the mother’s consent if the alleged father receives the child into the man’s home and openly claims the child as his own biological child.[15]  However, this does not establish the man’s paternity just the rebuttable presumption that he is the child’s biological father.[16]

However, in a paternity proceeding, the court within its own discretion, may issue an “equitable estoppel to protect the status interests of a child in an already recognized and operating parent-child relationship.”[17] This would in effect, bar the parties from determining the child’s biological father, because as the court saw fit, it would not be in that child’s best interest.   With regard to Indiana, the General Assembly “favors the public policy of establishing paternity . . . of a child born out of wedlock.”[18]

Finding of Paternity:

A court may enter a finding that a man alleging to be a child’s father is the child’s biological father without first a hearing on the matter if both the mother and alleged father file with the court a verified written stipulation or both parties filed a joint petition alleging the man is the child’s biological father.[19]

[1] I.C. § 31-14-2-1.

[2] I.C. § 31-14-5-1.

[3] I.C. § 16-37-2-2.1(b).

[4] I.C. § 16-37-2-2.1(a)(1)-(2); I.C. § 16-37-2-2.1(c)(1)-(2).

[5] I.C. § 16-37-2-2.1(e)(1)-(7).

[6] I.C. § 31-14-5-3(b).

[7] I.C. § 31-14-5-3(b)(1).

[8] I.C. § 31-14-5-3(b)(2)-(6).

[9] I.C. § 31-14-4-1; P.L. 206-2015.

[10] I.C. § 31-14-5-6.

[11] I.C. § 31-14-5-7

[12] Linda D. Elrod, Child Custody Practice and Procedure § 1:3 (2015).

[13] Jack K. Levin, Presumption of legitimacy, 5 Ind. Law Encyc. Children Born Out of Wedlock § 3.

[14] Elrod, supra, § 1:3.

[15] I.C. § 16-37-7-2(a)(1)-(2).

[16] I.C. § 16-37-7-2(b).

[17]  Elrod, supra, § 1:3.

[18] I.C. § 31-14-1-1.

[19] I.C. § 31-14-8-1(1)-(2).