I DID NOT ESTABLISH PATERNITY OF MY CHILD. WHAT SHOULD I DO NOW?

By: Kyli Willis March 2014

You and your girlfriend have just had a baby. Unfortunately, you are away on business at the time and you miss the big event. By the time you arrive, your girlfriend and child are already home from the hospital. You are so overwhelmed with happiness about your newborn infant and guilt about missing the birth that you never even think about the paperwork or legally establishing your parenthood. Of course, you have no reason to be concerned, because you cannot imagine your happy little family ever being apart. Unfortunately, you and your girlfriend later break up. She wants to keep you out of your child's life. You are confident that she cannot do so, because you both know that you are the biological father. Sadly, you are wrong - unless you take legal action.

At this point, your child's mother has sole legal and primary physical custody of your child because you were not married to her when your child was born and you were not there to sign the paternity affidavit at the hospital. Therefore, you need to take legal action to establish your child's paternity and secure your rights. Such an action will allow you to obtain a court order regarding custody, parenting time, and child support.

You must file a paternity action in the county where you, your child, or your child's mother lives. You will need to ask the court to establish that you are your child's father and request what you believe the court should order regarding custody, parenting time, and child support. The court will determine custody based on what the judge determines is in your child's best interests. Factors the court will consider are:

  • Your child's age and sex

  • Both parents' wishes

  • Your child's wishes, particularly if (s)he is at least 14 years old

  • The interaction and relationship of your child with both parents, siblings, and other significant persons

  • Your child's adjustment to home, school, and community

  • The mental and physical health of all persons involved

  • Evidence of domestic violence by either parent

  • Evidence that your child has been primarily cared for by someone other than the parents, called a "de facto custodian"

In determining whether you and your former girlfriend should share joint legal custody of your child, the court must determine if that is in your child's best interests. The judge's primary consideration will be whether you and your child's mother agree to share joint legal custody. However, the judge will also consider:

  • The fitness and suitability of both parents

  • Whether both parents are willing and able to communicate and cooperate in advancing your child's welfare

  • Your child's wishes, particularly if (s)he is at least 14 years old

  • Whether your child has established a close and beneficial relationship with both parents

  • Whether both parents live in close proximity to one another and plan to continue to do so

  • The nature of the physical and emotional environment in each parent's home

  • Evidence of domestic violence

In conjunction with determining the appropriate custodial arrangement for your child, the court will also issue an order establishing parenting time for each of you and determining who shall pay child support and in what amount. The Indiana Parenting Time Guidelines and Indiana Child Support Guidelines serve as baselines for each, although the court can deviate from either if the judge finds good reasons to do so.

If you are a father in this or a similar situation and you want to secure your rights and obligations to your child, you will want to consult an attorney knowledgeable in family law. Several of the attorneys at Allen Wellman McNew Harvey, LLP regularly practice in this area and would welcome the opportunity to assist you.