Published in Family Law on November 1, 2021.
In Indiana, the General Assembly addresses child custody laws.
When compared to married parents, unmarried parents present some special legal concerns. These special concerns include unmarried fathers’ rights in Indiana.
State courts try to balance these concerns. Unmarried fathers’ rights must be balanced with unmarried mothers’ custody rights to arrive at a fair determination.
But keep in mind that the best interest of the child is always the primary factor in custody decisions. The court will always put the child’s best interest above that of either parent.
The courts examine many factors when asking, How is custody determined if parents are not married?
First Things First: Establishing That You Are a Parent
The word ‘parent’ becomes crucial when addressing custody and visitation situations. A person must have a legally determined relationship with a child for the court to evaluate their custody request.
Therefore, unmarried parents must first present proof of maternity or paternity. Only after establishing parental status can someone bring forth a court action regarding custody.
The courts encounter paternity issues much more frequently than maternity issues. The mother has proof of birth at the time of the birth from a hospital, with the help of a midwife, or via physicians tending to her soon after the birth. But what about the father?
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Establishment of Paternity
Under Indiana law, when a man is married to the mother of a child, he is presumed to be the child’s legal father if:
● He and the child’s mother are married when the child is born, or
● If the child is born no later than 300 days after the marriage ends.
The presumption also applies when the man and the biological mother attempted to marry each other and attempted to comply with the law to do so, but the marriage is later found void or voidable.
On the other hand, an unwed father must establish paternity before gaining any parental rights. Paternity is the legal establishment of the identity of a child’s father.
Please note that when someone places a man’s name on a child’s birth certificate as the father, this doesn’t establish paternity.
In Indiana, a father generally establishes paternity, and therefore his rights by:
● Agreement with the mother, or
● A court-ordered paternity test (blood or genetic testing)
An unmarried couple can sign a voluntary agreement and acknowledgment of paternity (affidavit) drafted by a paternity attorney who is skilled in this area of law. The other option provides for the Indiana courts to order paternity genetic testing to determine paternity.
Indiana Child Custody Laws for Unmarried Parents Who Once Lived Together
When a couple lives together but splits up, they may enter into a verbal or written agreement about custody. However, such agreements are not legally sufficient.
When an unmarried couple breaks up, the legal effect is not the same as that of a divorce. A divorce decree states child custody arrangements and is legally binding.
However, there is no such legal order that guides child custody or visitation when an unmarried couple splits up.
There is a rebuttable presumption that a man is a child’s biological father if, with the consent of the child’s mother, the man receives the child into his home, and openly holds the child out to be his biological child.
However, this does not establish the man’s paternity, and it is only a rebuttable presumption – meaning it can be challenged. Unmarried parents must take additional legal action before child custody and visitation issues are addressed and can be enforced.
There can be no court-ordered right to custody or visitation unless the father legally establishes paternity. This is true even if the parents lived together when the child was born.
Once an Unmarried Mother or Father Establishes That They Are the Legal Parent, Do They Automatically Get Custody?
After someone legally establishes that they are a child’s parent, custody laws in Indiana become identical regardless of marital status.
Indiana courts put the best interest of the child ahead of all other interests, taking numerous factors into consideration.
The law explains what would serve as the best interests of the child when granting, denying, or modifying parental custody rights.
The Importance of Indiana Child Custody Laws for Unmarried Parents
Once the court establishes parentage, an unmarried mother or father has every right to seek custody and visitation orders. They have the same rights and responsibilities as a married couple of a child born in wedlock.
Whether married or unmarried, a parent with legal custody has the authority to make decisions concerning the child’s upbringing, including education, religion, and health care.
To get the best results, you should always seek the help of an experienced family lawyer. Our attorneys have spent years championing the parenting rights of clients in local family law courts.
We can be your ally and help you address custody laws in Indiana for unmarried parents
Eskew Law LLC, Paternity Law Attorneys
The lawyers at Eskew Law fully understand Indiana laws regarding the legal rights and responsibilities of paternity.
Our Indianapolis paternity lawyers are part of a firm that has established itself as a force to be reckoned with in the court system.
At the same time, we work hard to resolve family law matters in a timely manner, with the least amount of stress possible for our clients.