When it comes to issues of child custody, most children never question who their parents are. However, while it may seem straightforward in practice, legal recognition as the parent of a child is not always automatic or easily obtained. Men are not always considered to be the father from birth and same-sex couples might never receive the legal rights of a parent unless they chose to go through an expensive and lengthy adoption process. As reported by a local Indianapolis news channel, six same-sex couples are challenging the current laws in Indiana related to who qualifies as a legal parent, including who can be listed on death and birth certificates. Currently, the forms only permit listings for a mother and father, leaving same-sex couples with no legal record of their connection with a child. An overview of who is recognized as a legal parent under Indiana law will appear below.

When a Man is the Presumed Father

Unless there is a surrogacy relationship, it is obvious to assume that a woman who gave birth to a child is the child’s mother. The father, however, is not so obviously determined without genetic testing, but Indiana law presumes a man is the biological father of a child in several situations. These include:

• The man and the child’s mother are currently or were previously married, and the child is born while the parents are married or within 300 days of the marriage ending due to death, divorce or annulment;
• The man and the child’s mother attempt to legally marriage, but marriage is invalid or potentially invalid, and the child is born during the attempted marriage or within 300 days of the marriage ending due death, divorce or annulment; and
• The man undergoes genetic testing that identifies him as the father with at 99% probability.

In addition, Indiana law establishes circumstances where there is a rebuttable presumption a man is a child’s biological father for situations where it cannot be presumed but does not allow this provision to prove paternity. The rebuttable presumption operates if, with the mother’s consent, the man takes the child into his home and openly represents the child to be his.

Paternity Affidavits

If a child is born to a woman who is unmarried, it is still possible to establish a man as the father if the parents jointly file a paternity affidavit. The affidavit must be executed at a hospital or local health office. If completed at a hospital, the couple has 72 hours following the child’s birth to execute it in order for the affidavit to be valid. For affidavits completed at health offices, that may be done at any time before the child is emancipated, typically at the age of 18. Only the forms issued by the State can be used for this purpose, and hospital personnel must provide the mother an opportunity immediately before and after childbirth to complete the form. Personnel must also inform both parents of the legal ramifications of claiming paternity related to issues of child custody and support.

Talk to a Lawyer

Establishing your legal rights as a parent is a huge moment in your life and that of your child’s. This is especially true if you have reason to doubt you are the child’s biological father. Any question around the issue of paternity should be considered by an attorney to ensure your rights are protected and your legal obligations are fair. Christopher L. Arrington, P.C., represents clients in central Indiana on family law matters and can help you establish or fight a paternity determination. Contact him to schedule an appointment.