Published in Family Law by Chris Eskew on November 12, 2021.
When a child is born, the father may expect to have parental rights.
Nevertheless, if the mother and father of the child are not married at the time of the child’s birth, this can become an issue.
You may be wondering, what are the father’s rights if not married to the mother of the child? There are steps a father can take to establish the paternity of their child.
For unmarried fathers’ rights in Indiana, Eskew Law is ready to help.
Do Unmarried Fathers Have Rights?
A man is presumed to be a biological father when (i) A child is born to a married couple; (ii) The mother and father attempted to marry each other but the marriage was later found void or voidable and the child was born during the marriage or less than 300 days after the marriage is terminated; or (iii) The man undergoes a genetic test that indicates with at least 99% probability he is the biological father. This presumption operates to give the father parental rights.
If there is no presumed biological father as listed above, a rebuttable presumption exists if a man receives the child into his home, and openly holds the child to be his biological child.
However, this does not actually establish paternity, and can be contested later on.
On the other hand, when a child is born to an unmarried couple, the father does not automatically have rights.
Establishing paternity is important for many reasons. Not only does it solidify relationships, but it also gives a father legal rights they may not otherwise have.
How to Establish Paternity in Indiana
Under Indiana law, there are two main ways to establish paternity: executing a paternity affidavit or a court action resulting in a court order establishing paternity.
While both methods strive to achieve the goal of giving unmarried fathers parental rights, the one you choose depends on your situation.
To establish paternity with an affidavit, both the mother and the father must sign the document proclaiming they are the parents of the child.
Paternity affidavits are often used for parents in a relationship when a child is born to parents who are amicable and aim to share parental responsibilities.
If the child is born at the hospital, the hospital can provide the paternity affidavit for both parents to sign. It must be completed within 72 hours after the child’s birth.
Both parents will have the opportunity to review the document on their own before signing to avoid undue influence.
The document must be signed in the presence of a witness or notary. If both mother and father sign, the birth certificate can then reflect the father’s name, and he will be the child’s legal father.
If both parties do not execute the paternity affidavit, they will still have the chance to complete it at the local health department until the child reaches the age of 18 years old
A paternity affidavit in Indiana is a legally binding document. Once a paternity affidavit is executed, a father is accepting the parental responsibility that comes with being a child’s legally recognized father.
It is possible for the man to challenge, or rescind, a paternity affidavit, by filing an action with the court within 60 days of the execution of the affidavit and requesting a genetic test.
The man can request genetic testing even past the 60-day mark if the court determines fraud, duress, or material mistake of fact existed when the affidavit was executed. Importantly, however, the court will not suspend legal responsibilities of a party to the affidavit during the proceedings of a challenge to the affidavit.
Paternity Court Order
If both parties do not execute a paternity affidavit, a father can also establish paternity through a court order. Either the mother or father, or both jointly, can initiate a paternity action with the court.
Additionally, an expectant mother, child, or the government in certain circumstances may initiate a paternity action.
Both parties can decide to voluntarily acknowledge paternity and submit an agreement to the court. Otherwise, either party can make a request for genetic testing to determine the child’s paternity.
Once paternity has been determined and established by court order, the court may also make additional orders for parental rights, including visitation or custody.
Genetic Testing Requirements
At any time, either party may request the court order blood or genetic testing to determine a child’s paternity. However, it is important to note that the state of Indiana has requirements for DNA testing.
The testing must be performed by qualified expert approved by the court. The father must complete the genetic test at a state-approved laboratory.
The court will not accept an at-home DNA test. Ensuring you get your genetic testing done at an approved location can help expedite the process and make it easier for both parties.
Does an Unmarried Father Have Rights Once He Establishes Paternity?
Once paternity is established, unwed fathers will have all the rights and responsibilities of a child’s legal father. Parents can come to an agreement together, or the circumstances may require court intervention.
Unmarried Fathers Rights to Custody and Visitation
If a man has not first established paternity, they have no legal rights, including visitation or custody. But if an unmarried father has gone through the process of establishing paternity, they will accept the rights and responsibilities that come with being a father. The most important one is spending time with the child.
Mothers and fathers can come to an agreement about custody together. If both parents decide to go the paternity affidavit route, there is a section on the document for the mother and father to agree to joint custody. If joint custody is not agreed upon, the mother will have sole custody, but both parents can still establish paternity on the affidavit.
If the father wishes, they may petition the court for visitation or custody. Indiana child custody laws will help the court decide custody details.
Indiana Code 31-14-13-2 [NH1] [YA2] lists all the factors that a judge considers when deciding what custody arrangement is best for the child following establishment of paternity.
The court will aim to do what is in the child’s best interest to determine the most ideal custody or visitation schedule. It is possible that either parent may also be subject to a court order for child support.
While parents may consider making arrangements completely on their own, this may not be ideal. If the mother and father do not formally set a custody or visitation agreement, whether in a parental affidavit or through the court, a father who has not established a court order may be at a disadvantage.
The noncustodial parent is entitled to reasonable parenting time rights. It is best to establish parenting details, as this can be a great benefit to the child and their relationship with both parents.
Consult with an Indiana Family Attorney
Eskew Law, has had the pleasure of assisting countless clients with their family law needs. We value family and unity, and we aim to do what is best to preserve these important relationships.
Our clients can expect legal advice customized to their specific needs while receiving one-on-one personal attention from their attorney.
We’re there every step of the way, working toward the best possible outcome. Contact us today, and let’s see how our firm can help you.