Establishing paternity and why
When do I need to file?
Custody and parenting time in paternity cases
Child support in paternity cases
What is Paternity?
Paternity is the legal relationship between a father and child. If a child is born during a marriage or within 10 months following the death of the father, then the husband is presumed to be the legal parent of the child.
In the context of family law, the issue of establishing paternity arises when a child is born out of wedlock.
Establishing Paternity and Why
If you have had a child out of wedlock, to obtain orders concerning custody, parenting time and child support, paternity must be legally established by court order. This is accomplished by filing a Petition to Establish Paternity in the county in which at least one parent resides.
One question to consider is why file to establish paternity? For purposes of this discussion, it will be assumed the mother has primary physical custody of the child.
- For both parents to establish a legal relationship as doing so can provide access to benefits from both parents such as health insurance coverage and Social Security. If paternity has not been legally established, then the child very likely will not have access to assistance that the father may be able to provide.
- From the mother’s perspective, establishing paternity provides a method by which to obtain a court order for child support. As explained here, child support also incorporates the cost of daycare. For some parents, the financial stress of raising a child can be significant and establishing child support can be critical.
- For the father, establishing paternity may be necessary to set a schedule for parenting time. If there is a disagreement as to when the father may see the child, then it may be necessary to seek the court’s intervention to ensure visitation takes place.
Most commonly there is no dispute as to the birth parents. However, if there is a question as to paternity, a DNA test may be requested to answer any questions.
When Do I Need to File?
For a parent, a Petition to Establish Paternity must be filed no later than two years after the child is born. There are exceptions to this rule such as if there is an agreement between the parties to waive this limitation, but it is advisable to file a petition before the child is two years of age.
Custody and Parenting Time in Paternity Cases
The factors in evaluating which parent should have physical custody are identical to the factors utilized in a divorce case. A discussion of these factors can be found here.
As discussed elsewhere on this site, Indiana utilizes the term parenting time in place of “visitation.” In a paternity case, the noncustodial parent (most often the father, at least as of the first hearing) is entitled to reasonable parenting time unless it can be shown that there would be danger to the child’s health or emotional development.
In a paternity case, the mother will have sole legal custody, at least initially. If after a hearing the court finds it in the best interests of the child, an order that the parents share joint legal custody may be entered.
Child Support in Paternity Cases
Child support in a paternity case is calculated utilizing the Indiana Child Support Guidelines. A discussion of how the Guidelines are applied, including modification of support and emancipation, can be found here.