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Kevin O'Flaherty

In Indiana, if a father's name is not listed on a birth certificate, he can still have his name added later by filing a paternity affidavit and birth certificate with the county health department within 12 months of the child's birth. If more than 12 months have passed, the father must provide DNA evidence or other reliable proof of paternity to the state department of health, which can then update the birth certificate accordingly.

Our article offers a clear step-by-step guide to understanding your options, whether it involves signing a paternity affidavit or initiating a court-ordered paternity action. We will explore the legal consequences and processes to assert paternal rights or responsibilities, ensuring you are well-equipped to navigate this situation.

Can a baby have the father's last name if the parents are not married in Indiana?

Yes.  If the father and the birth mother are in agreement, the mother and father can execute and submit what is called a paternity affidavit at the hospital where the child is born, or later at a local county health department, that includes directions on how the child’s name shall appear on the birth certificate.  IC 16-37-2-2.1.

Can the father add his name to a birth certificate later in Indiana?  And, how do you add a father's name to a birth certificate in Indiana?  

Yes, you can.  A birth certificate, along with a paternity affidavit, are to be filed with the county health department within five (5) days of the child’s birth, but no later than twelve (12) months after the child’s birth.  IC 16-37-2-3 and 4.  The county health official is then required to add the putative father’s name to the birth certificate.  IC 16-37-2-14.

How long does the father have to establish paternity in Indiana?  

After twelve (12) months of the child’s birth the birth certificate and/or paternity affidavit must be filed with the state department of health.  If a birth certificate and/or a paternity affidavit with positive results of DNA tests supporting paternity (or other reliable evidence) are filed with the state department, the state department may add the putative father’s name to the birth certificate.  IC 16-37-2-10.  There is no specific time limit given within which this procedure must be followed.  However, if court action is required to establish paternity the action must be commenced within two (2) years of the child’s birth.  IC 31-14-5-3.  There are many exceptions to this time limitation, so you should speak to a paternity lawyer or father’s rights attorney in Indiana about your situation if the child is two (2) years or older.  

What happens if the father's name is not on the birth certificate in Indiana?

When a child is born out of wedlock in Indiana the child’s recorded name is to be that of the mother, unless a properly executed paternity affidavit is submitted with the birth certificate and directs the child’s name to appear differently.  IC 16-37-2-13  

If the child is born while the birth mother is married, or within 300 days of her marriage, Indiana law attaches a legal presumption that the man that she is, or was, married to at the time of birth is the father of the child. 31-14-7-1  This marital presumption can only be rebutted, or disproved, by “direct, clear and convincing evidence.”  H.B. v. Ind. Dep't of Child Servs., 40 N.E.3d 1280 (Ind. App. 2015).

If genetic DNA testing has been done to determine if a man is the biological father of a child and that test returns with a positive result to a 99% certainty, according to Indiana law, that man is presumed to be the child’s biological father.  31-14-7-1

If the putative father, with the mother’s consent, has taken the child into his home and has held the child out as his own, Indiana law creates a rebuttable presumption that the man who has done so is the child’s father.  31-14-7-2

What proves that a father is legally a child’s father?

The only ways to establish legal paternity in Indiana are to properly execute and file a paternity affidavit or to institute and prevail in a paternity action.  IC 31-14-2-1  

A paternity affidavit was discussed above.  It must be drafted, executed and filed properly within any applicable timeframes.  IC 16-37-2-2.1  If you need assistance, a father’s rights attorney or paternity lawyer in Indiana will be able to assist you.  

A paternity action may be instituted by the mother, the child or the putative father.  31-14-5 et seq.  Facts to be aware of are:  

  • If the mother and putative father agree, they may file a Joint Voluntary Petition to establish paternity.  
  • Under some circumstances, a mother may have a county prosecutor’s office in the state of Indiana file a paternity action on her or the child’s behalf.
  • If either the mother or the putative father wish to institute a paternity action, they must do so before the child reaches two (2) years old.  After the child reaches the age of two (2) any action for paternity must be maintained in the child’s name as  “next friend” or by the child, him or herself.  There are some exceptions to this rule for a putative father.
  • The child may institute the action until he or she reaches the age of twenty (20) and must do so within five (5) months of the putative father’s death, should the putative father die.  

What are a father’s rights when a paternity action is filed?  

A putative father, generally, has the following rights when responding to a paternity action:

  • The right to have a court-appointed attorney, if the mother or child are represented by the county prosecutor and the putative father cannot afford a private attorney.
  • The right to DNA or genetic testing of all parties.  

What are father's rights for child custody in Indiana?

The answer to this question requires an understanding of the difference between “legal custody” and “physical custody” (currently referred to as “parenting time” in Indiana).  

  • “legal custody” means the right to determine major decisions in the child’s life.
  • “physical custody” refers to the parent with whom the child resides, for all practical purposes (e.g. where mail for the child is delivered, the school district in which the child is enrolled), or the one that the child spends to most time with.

When a putative father executes a valid paternity affidavit, his rights to legal and physical custody will be set out in the affidavit.  IC 16-37-2-2.1  The difference between legal custody and physical custody of the child should be explained to him by the authorized person accepting his affidavit at the hospital or other birthing facility.  If a putative father wishes to file a paternity affidavit at a later time, he should contact a paternity or father’s right lawyer in Indiana to explain the difference between legal and physical custody and to assist him in drafting and executing a proper affidavit that reflects his custody expectations.

When a putative father institutes or responds to a petition in a paternity action, the judge will determine what legal and physical custody is in the best interests of the child.  In Indiana, “legal custody” means the right to make major life decisions for the child (e.g. healthcare decisions, which school the child will be enrolled in, etc.).  ‘Physical custody” means the household that the child considers his or her permanent residence.  

What an Indiana court will consider when determining the best interests of the child with regard to physical custody is:

  • the age and sex of the child
  • the wishes of the parents
  • the wishes of the child, with more consideration given to a child that is at least 14 years old
  • the interaction and interrelationship of the child and the child’s parents, siblings, and any other person who may significantly affect the child’s best interests,
  • the child’s adjustment to home, school and community,
  • the mental and physical health of all persons involved,
  • evidence of a pattern of domestic violence,
  • evidence that the child has been cared for by a de facto guardian  

What an Indiana court will consider with regard to legal custody falls in line with the discussion below.

Can I have joint legal custody?  

Legal custody has the meaning referred to above (i.e. a parent’s right to make major life decisions like health, educational and religious choices for a child).  Joint legal custody means that the parents granted joint legal custody are able to exercise their legal custody rights together in pursuit of the child’s best interests.  To this end, Indiana courts are hesitant to grant parents who are not capable of compromise or agreement joint legal custody.  When making the legal custody decision, including whether joint legal custody is appropriate, the factors that the court will take into consideration are:

  • the fitness and suitability of each person
  • whether the parents are willing to communicate and cooperate in advancing the child’s welfare
  • the wishes of the child, with more consideration given to a child at least 14 years old
  • whether the child has established a close and beneficial relationship with both parents
  • whether the parents live in close proximity and plan to continue to do so
  • the nature of the physical and emotional environment in each home, and
  • whether there is a pattern of domestic violence
  • What are the father’s obligations once found to be the child’s legal father?
  • The court may order that the father pay child support dating from the birth of the child and will find that child support, if any, be paid from the date of filing the paternity petition.
  • The court may order that the father pay the expenses of the mother’s pregnancy and child birth.  
  • The court may order that the father provide health insurance, healthcare expenses and educational expenses for the child beyond the child’s nineteenth (19th) birthday.  

To summarize, a father may be added to a birth certificate in the state of Indiana if the proper procedures are followed.  A court proceeding may also be instituted.  There are presumptions in place, by Indiana law, that anyone seeking to file a paternity action should be aware of.  There are rights and obligations that may attach that anyone seeking a finding of paternity should be aware of.  In order to be sure that your rights are protected, a father’s rights or paternity lawyer in Indiana should be consulted before any action is taken that could result in long-reaching consequences for all involved.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

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