Fill and Sign the Paternity Law and Procedure Handbook Indiana Form

U.S. Legal Forms, Inc. Paternity Laws and Procedures Handbook * * * A general guide to the laws and procedures related to paternity establishment. With links to web-based paternity statutes and resources for Illinois. ©2004 U.S. Legal Forms, Inc. All rights reserved. This Guide was developed by U.S. Legal Forms, Inc. (USLF), is protected by copyright, and may not be reprinted, distributed or displayed by any means without the express written consent of USLF. U.S. Legal Forms, Inc. Paternity Laws and Procedures Handbook I. Introduction II. Definitions III. Frequently Asked Questions IV. Paternity Laws V. Voluntary Establishment of Paternity VI. Undoing a Paternity Acknowledgment VII. Court Action - Legal Establishment of Paternity i. Parties & Limitations ii. Venue iii. Notice iv. The Hearing v. Evidence and Presumption of Paternity vi. Genetic / Blood Testing vii. Defenses VIII. Child Custody, Visitation & Support IX. State Paternity Law Summary & Links X. Conclusion I. INTRODUCTION Throughout the United States, the law holds that children born out of wedlock need support from both their father and their mother. Generally, the initial burden of child support rests upon the mother. A father may or may not take responsibility for his child. If a father chooses not to acknowledge paternity, the mother, and in some cases the state, must initiate a court proceeding to compel the father to acknowledge paternity and pay child support. This court proceeding is variously known as a “filiation,” “paternity,” or “parentage” proceeding. Many putative fathers have a relationship with the unmarried mother during her pregnancy and at the time of birth, creating an emotional bond with the child and instilling in the father a sense of responsibility. The ideal time to establish the paternity of the child is during this time frame. Research shows that a state has a significant interest in ensuring that genuine claims for child support are satisfied, in reducing the number of individuals forced to enter welfare rolls, and in establishing a father-child relationship. States enact paternity statutes with these interests in mind. The father has a legal obligation to help pay the cost of raising a child. When a child's paternity is established, he/she becomes eligible for the father's health insurance, the dependent's portion of Unemployment Insurance Benefits, Social Security benefits, veterans' benefits, life insurance and other benefits if the legal father becomes disabled or dies. Government agencies can often help locate the man you name as the father and collect the child support payments from him. Two model acts have been influential in shaping state paternity law: the Uniform Act on Paternity of 1960 and the Uniform Parentage Act of 1973. While only about half of all states have officially adopted the Uniform Parentage Act and/or the Uniform Act on Paternity, the majority of states have borrowed from these models acts when enacting their own paternity statutes. This Handbook addresses general paternity law and procedure as it exists in the United States. II. DEFINITIONS Biological Father The man who fathers a child by impregnating the mother. The biological father is not a legal father unless paternity is established or presumed by law. Genetic Testing A scientific method for determining paternity involving the taking of samples (usually blood samples) from a mother, child and putative father, then comparing the results. These tests are sometimes referred to as DNA tests because the information in the samples compares the DNA, or basic chemical codes, found in each person’s body. Legal Father A biological father who has been legally established to be a child’s father and who then is entitled to the rights and responsibilities of parenthood under the law. Paternity Paternity means being the legal father. If a woman is married when a child is born, the husband is presumed to be the father. However, if parents are unmarried, the child does not have a legal father until paternity is established. Presumed father A person who the law assumes is the father of a child because he was married to the mother during pregnancy or when the child was born. Putative Father A person claimed to be a biological father. When paternity is legally established, a putative father becomes the legal father. Voluntary paternity establishment One of several methods to establish legal fatherhood for a child when the parents agree on the father’s identity. Assisted reproduction means a pregnancy resulting by means other than sexual intercourse, including: artificial insemination, donation of an egg, donation of an embryo, in vitro fertilization and transfer of an embryo, or intracytoplasmic injection of sperm. Child means an individual whose parentage may be determined. Commencement means the filing of the first pleading in a proceeding to determine parentage. Determination of parentage means the legal establishment of the parent-child relationship. Donor means an individual who produces eggs or sperm used for assisted reproduction, whether or not a payment is made, but the term does not include a woman who gives birth to a resulting child. Ethnic or racial group means a recognized group with which an individual identifies, or with which is identified to be in his or her ancestry. Genetic testing means testing that analyzes genetic markers in order to determine parentage, including: analysis of specimens of deoxyribonucleic acid, and analysis of specimens that identify the presence or absence of common blood-group antigens, red blood cell antigens, human leukocyte antigens, serum enzymes, serum proteins, or red cell enzymes. Man means a male individual of any age. Parent of a child means the mother, an adoptive mother or father, and a man who is either: - “presumed” to be the father; - “acknowledged” to be the father; or - determined to be the father by a tribunal of competent jurisdiction. Parent-child relationship means the legal relationship between a child and a parent of the child. Paternity index means the ratio of the chance that the mother and a man of the alleged father's composition and ethnic or racial group conceived the child compared with the chance that the mother and a random man conceived the child. Presumed father means a man who, by operation of law, is considered to be the father of a child due to the factual circumstances unless he is affirmatively determined not to be the father of that child under other provisions law. Probability of paternity means the measure, for the ethnic or racial group of the alleged father, of the probability that the individual in question is the genetic father of the child, expressed as a percentage incorporating the paternity index and a prior probability. Putative father means a man who claims to be, or is alleged to be, the genetic father, or the possible genetic father, of a child, but whose paternity has not been determined. The term does not include: - a man presumed to be the father; - a man whose parental rights have been terminated or declared not to exist; or - a male donor. State means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe. Specimen means a sample of blood, buccal cells, bone, hair, or other body tissue or fluid taken from an individual to be genetically tested. The term includes any other physical component of the individual which the testing laboratory determines is appropriate for testing. Support enforcement agency means a public official or agency authorized to seek: - enforcement of support orders or laws relating to the duty of support; - establishment or modification of child support; - determination of parentage; or - to locate obligors or their assets. Title IV-D (“IV-D”). In 1975, Congress amended the Social Security Act, Title IV, Part D (Title IV-D) to provide greater assistance to the states in establishing paternity and enforcing child support orders. The law created the Child Support Enforcement program under the Secretary of Health, Education and Welfare to oversee child support enforcement operations at the state level. Today, each state’s child support services are monitored by the US Department of Health and Human Services, Office of Child Support Enforcement. Under the Title IV-D program, states are required to provide child support services in order to receive federal funding. Tribunal means a court, administrative agency, or quasi-judicial entity authorized to determine parentage. III. FREQUENTLY ASKED QUESTIONS What is Paternity? Paternity means being declared the legal father after the child is born. If the parents of a child were not married when the mother became pregnant or when the child was born, the child does not have a legal father until paternity is established. Why is it important to establish paternity? Establishing paternity is important for both the child and the parents. A child is entitled to the sense of belonging and identity that comes from knowing both parents. Establishing paternity often has an important emotional and psychological benefit for the child. Also, until there is a determination that a biological father is the legal father, the child has no right to receive financial support from the father, to inherit from the father or to obtain insurance, veterans’, social security or other benefits through the father. Likewise, until paternity is legally established, the biological father has no legal rights to the child, such as parenting time (also called access; formerly called visitation) with the child, and no legal right to participate in major decisions about the child, such as medical treatment, education or religious training. What is voluntary paternity establishment? People may believe that paternity can only be legally established by filing a case in court and having a judge decide the issue after testing is done or other proof is submitted. However, if both parents agree who the biological father is, legal paternity often can be established by a simple process that doesn’t require a court hearing. This is called voluntary paternity establishment. How is paternity established? Paternity is established either voluntarily or by judicial/administrative process. If a woman with children applies for benefits, she must either provide proof of paternity or assist the child support enforcement agency in establishing paternity by providing information about the putative father. The child support office then creates a paternity case and usually begins its paternity establishment efforts by attempting to locate the putative father. Once they have located the putative father, they may encourage him to voluntarily acknowledge paternity, arrange for genetic testing, or begin other proceedings to establish paternity. When a woman with children applies for public assistance or attend an interview to re-determine benefits, she is interviewed by public assistance staff to provide information on income, resources, children, and potential for employment. If a child’s paternity is not resolved, clients are asked during these interviews to identify the absent parent for paternity establishment and pursuit of child support. The number of questions asked of clients varies by State, as does the degree to which staff are trained to actively pursue correct answers. This information about the absent parent is then transferred to the child support agency. Does it matter how paternity is legally established? No. Whether paternity is established voluntarily, or by judicial/administratively action, the result is the same. In each case, the biological father becomes the legal father and must assume his responsibilities. How can I establish paternity voluntarily through the court? - An affidavit in which both parents agree that the named father (also known as the “putative father”) is the biological father of the child, or - An agreement that the mother, the putative father and the child will take a genetic test (usually a blood test) and have legal paternity decided by the test results, or - A birth certificate signed by both parents. - Paternity can be established by default if the alleged father is notified of a paternity hearing but does not appear. In many states, the husband is determined to be the father of a child born while the parents are married. If a child support enforcement agency is aiding the mother, once the mother or other source has identified a putative father, and the child support agency is reasonably sure they have located his home or work address, the man must be notified that he has been named in the case. This notification is typically a letter alleging his paternity and requesting an appointment with child support staff, submission to genetic testing, or attendance at a court hearing. The putative father’s receipt of this letter is called “service of process.” Service of process is important to resolving paternity in a timely fashion. It is also critical because most States do not allow a default order of paternity to be issued unless the putative father has been properly served. There are many methods of service, and offices typically start with the regular mail and escalate to more active methods if there is no response. Methods include certified mail, restricted delivery mail, notice by publication, and personal service by a private vendor or local law enforcement official. When mail is certified or restricted, the recipient must personally sign for the mail in order to be properly served. Some local staff report the same man may be served four or five times using different methods before they have proof in the form of a signature or personal contact. It is common to allow 15 to 45 days for response prior to the next service, so several months may go by before the putative father responds. What are Administrative Methods Of Paternity Establishment? In a typical administrative paternity establishment, the mother provides information about the putative father, and the putative father is sent notification to appear for genetic testing. If he and the mother are already sure he is the father, they may sign a voluntary acknowledgment or other consent form. If they are uncertain, they submit to genetic testing and sign an acknowledgment once testing has affirmed parentage. Under this method, the mother client may have to formally attest to her belief that he is the father by signing her half of the voluntary acknowledgment or another form stipulating paternity before the child support office agrees to contact a particular putative father. In a few of these States, administrative establishment through voluntary acknowledgment appears to be possible only prior to application for public assistance. Even in cases of mutual consent, all public assistance referrals in which paternity is not resolved are given a court hearing date. In States which rely more heavily on judicial practices, voluntary acknowledgment is the only fully administrative method of paternity establishment. These States typically use the same form, whether paternity was acknowledged at birth or at anytime thereafter. Other States have similar administrative methods but use the voluntary acknowledgment form only at birth in the hospital or at an alternative site prior to application for public assistance benefits. For paternities established later, these States use administrative paternity orders based on mutual consent, typically called Agreed Orders or Consent Agreements. Such orders may include more information than an acknowledgment affidavit, such as the amount of the support award, and even custody and visitation guidelines. Similar to voluntary acknowledgments, these agreed orders are signed by mutual consent, either without or following genetic testing. Although this procedure is fully administrative in some States, others follow a quasi- administrative process in which the order is prepared by child support staff and then routinely approved by a State court. What if the man is not sure he is the father? If unsure of whether he is the father, the man should refuse to sign an acknowledgment of paternity and insist on genetic testing to determine parentage. Are genetic tests accurate? New methods of scientific testing are nearly one hundred percent accurate in proving whether a man is the father of a child. Most testing laboratories now use DNA testing. The test results can show conclusively if a man is not a child’s father or can show that a man is the father to a high degree of certainty. Is it required that both parents sign the paternity acknowledgment forms? Yes. Legal fatherhood cannot be voluntarily established without the agreement of both the mother and the putative father. In this way both parents are protected from false claims. What if parents cannot agree to establish paternity? Parents sometimes are not able to agree to establish paternity. This may be because the identity of the putative father is uncertain or because the putative father is not willing to assume the responsibilities of fatherhood. If the parents do not agree, the voluntary establishment processes cannot be used. However paternity may still be established by the court. Judicial paternity establishment proceedings for public assistance clients typically begin with the mother signing an allegation or stipulation of paternity which names the putative father. These forms are themselves court documents and may be submitted as an official complaint for court action. They may also be used later in a court proceeding as evidence of paternity. The forms include information about the mother and child, and as much information about the putative father as is available. Some States substitute the mother’s half of the voluntary acknowledgment form for this same purpose. As mentioned previously, most States make an effort to encourage the father to acknowledge or consent to paternity at this point. In States who use primarily judicial procedures, child support staff initiate the legal case at the same time that they are waiting for the father to possibly come forward or submit to genetic testing voluntarily. After the child support agency has filed the complaint with the court, parents typically are given a hearing date. The filing process may take two to six weeks, and the court date is likely to be scheduled 30 days to six months later, in order to allow for service of process and to fit within the court docket. If the mother has already signed a stipulation of paternity, she may not need to attend the court hearing. In this initial court hearing, the judge will likely order the putative father to submit to genetic testing. Some courts offer testing on-site, so that genetic samples may be collected immediately. If the father is affirmed by the genetic test, the child support agency may request that he sign an agreement to abide by the testing results. If he does not sign, an additional hearing may be necessary to order the test as a binding establishment of paternity. A single case may then involve more than one court appearance, potentially including an initial hearing to order genetic testing, a second to issue an order of paternity and set the amount of the support award, and a third to settle matters of custody and visitation. In most States, these court hearings appear to be brief and routine, varying little based on the circumstances or people involved. Courts may offer one or two days a month during which they handle all pending paternity cases, with a single legal representative presenting case after case to the judge. A few other States have more formal and personal proceedings, with actual testimony on the part of the mother and father and submissions of acknowledgments or genetic test results as “evidence.” These are the exception, unless the court is attempting to resolve paternity in the same session as other issues, or unless the father or mother have hired private legal counsel. Although prior voluntary acknowledgments of paternity and default orders appear to be overturned fairly often in court hearings, positive genetic testing results almost always result in a judicial finding of paternity. If a court case is started, and paternity is decided, what will the court order? When a court case is concluded (and the person claimed to be the father is proven by genetic testing or otherwise to be the biological father), the court will issue an order establishing legal paternity. In some circumstances, the court also may order an amount to be paid for future child support, for any past child support that is due, an amount to be paid for the costs of the child’s birth and medical insurance coverage for the child. A parenting time (formerly called visitation) schedule may also be established by the court order. Do the voluntary methods of establishing paternity take care of child support, custody issues, medical insurance and parenting time (visitation) schedules? Child support agencies in only two States are required to resolve issues of custody and visitation at the time of an administrative paternity establishment, and agencies in two other States are allowed, but not required, to do this. All four of these States employ legal staff to guide parents and caseworkers in facilitating custody and visitation agreements, and at least one State has a mediator on staff who explains options to the parents and seeks agreement. These issues are typically only resolved within the child support office if parents readily agree to the terms of the custody and visitation, and as part of a single process which links paternity establishment to the creation of the child support order. If parents disagree on issues of custody and visitation, staff within these States are likely to make only a limited attempt to resolve the dispute before referring parents to a family services agency or to the State courts. Depending upon State processes, this agreement regarding custody and visitation may only be temporary pending final case review. A few individual local offices in focus States report they attempt to handle these issues informally at the time the support order is created. IV. PATERNITY LAWS Most states either use or draw heavily from the Uniform Parentage Act, a uniform set of laws developed by legal experts in the field of paternity law. Though there is important variation among the various states’ paternity laws, in general, state law recognize similar duties, rights and procedures. A summary follows below. When a woman becomes pregnant, the man, with whom she has engaged in sexual intercourse at the approximate time of conception, has an obligation to recognize that he may be the father. A presumption of paternity occurs if the child is born in wedlock, and paternity may be established if the parents marry after the birth of the child. Also, while the woman is pregnant, a putative father has two options: he can acknowledge paternity and assume his rights as the father, or he can deny paternity of the expected child. If the alleged father denies paternity, the mother may seek relief. The father can acknowledge paternity by signing a contract with the mother. Admission of paternity is sufficient consideration for the contract. The father can also acknowledge paternity by filling out a “Voluntary Acknowledgement of Paternity” or like-named form or affidavit that is issued by a health care facility. A health care facility is responsible for providing this form and filing it with the state when the facility believes that the mother is unmarried. This form must be usually signed by both parents and sometimes witnessed by a third party. Within one year, any party to the acknowledgment or the state, if assistance is being provided to the child, may request that the court order a genetic test. If the test excludes the male party, the court will issue a non-paternity order. If the father denies paternity, the mother of the child, a state agency providing support because of the birth or impending birth, or other potential entities (such as the district attorney) may initiate a paternity proceeding against the alleged father by filing a duly verified petition. During a private hearing, the court first determines the issues of paternity. If the father admits to paternity, the admission is reduced to writing. If paternity is denied, corroborating evidence and testimony of the parent is required. If the court finds by the preponderance of the evidence that the putative father is the actual father, the court may then proceed to determine relief. The court may approve settlement agreements, order an investigation or production of evidence, and/or order the father to pay certain expenses. This can be done even if the putative father fails to submit a plea or appear at trial. If the court cannot find good cause to allow relief to the mother, the court (upon its own initiative or by recommendation) shall order the mother, child, and alleged father to submit to a blood test. If any person refuses to such a test, the court may resolve the question of paternity against such person or enforce its order. A rebuttable presumption of paternity is created if one or more blood tests result in a cumulative paternity index in the high ninety percentiles (states vary). If the experts disagree in their conclusions, the evidence of the blood tests, together with testimony of the mother, is a sufficient basis upon which to presume paternity for establishing temporary support. Upon the motion of the mother, the court shall enter a temporary order requiring the alleged father to provide support pending the determination of parentage. If the alleged father refuses to comply with court testing orders, the issues of paternity will normally be resolved against him. Any temporary support paid will be forfeited. V. VOLUNTARY ESTABLISHMENT OF PATERNITY Many states require the healthcare facility were the baby is born to furnish voluntary acknowledgement of paternity forms. A particular state agency is responsible for providing the forms to the healthcare facilities and for training the healthcare providers in recognizing potential children being born out of wedlock. Usually, the healthcare facilities must fully explain the form to the parents before allowing the parents to complete the form. Some states require the form to be completed while under oath and witnessed by healthcare providers. Generally, the form should be completed prior to discharge. If the man named as the father of the child agrees he is the father, he will be asked to sign an official form stating he is the father. The form is widely available to parents in many hospitals immediately following the birth of their child. If the form is signed in the hospital, the mother and the father do not have to appear in court to establish paternity for the child. When the parents are willing, it is easy to establish paternity. When a child is born in a hospital or birth facility, the parents can complete paperwork in the hospital that will establish the paternity of the child without a court procedure. If the father is not present at the birth, he can complete an affidavit in a designated facility at any time up to the child’s 18 th birthday. The support amount will be based on his ability to pay as determined by child support guidelines. When a man voluntarily acknowledges his child, he will be responsible for support until that child is 18. There are there ways that paternity can be established at or around the time of the birth: i. The paternity of a child can be presumed. The State can presume paternity when: a. A child is born within a marriage. b. A child is born within a predetermined number of days (approximately 300) of a marriage. c. When genetic testing indicates a high probability of biological fatherhood. ii. The parents can voluntarily sign an acknowledgement of paternity in the hospital or birth facility. iii. Since 1989 the law has required hospitals to provide an opportunity for unmarried parents to complete an affidavit of paternity. iv. When unmarried parents give birth at a hospital or birthing facility, the parents are given information about the benefits, consequences of, and alternative to acknowledging paternity, including any rights pertaining to being a minor. The father is clearly informed he will have an obligation to pay child support. v. The parents can sign an acknowledgement of paternity at a designated site outside the hospital vi. To facilitate paternity establishment in these cases, it is possible for a father to voluntarily acknowledge paternity in various facilities outside the hospital. These State designated facilities may include: a. Child Support Enforcement offices. b. Birth records facilities. c. WIC centers. VI. UNDOING A PATERNITY ACKNOWLEDGMENT Every year throughout the United States, many men mistakenly acknowledge paternity of children who are not, in fact, their own. If there is any doubt in the putative father’s mind as to whether or not he is really the father, he should not sign an acknowledgment of paternity, but rather should suggest (and demand if necessary) that genetic testing be conducted in order to establish paternity. Using your own money to support a child that is not yours would be for most people a regrettable mistake. The real father should not escape responsibility for supporting the child. If a father has signed a paternity acknowledgment, and then begins to doubt whether he is really the father, quick action may be able to reverse the legal situation. Legal fatherhood for the child is established as of the date both parents sign the acknowledgment form, if it is properly completed and filed. However, in many states: If, within a short period of time (sometimes 60 days) of the date both parents signed, either parent comes to believe that the man named on the form may not be the father, one of the parents must file a case in Court and ask the court to rescind the acknowledgment (that is, have it declared null and void). If, within a short period of time (sometimes 60 days) of signing, the parent questioning paternity is a party to a court hearing about the child (for instance, to establish a child support order or a custody and visitation order), the parent must raise the issue of the child's paternity at the hearing. Before the end of the time period, the parent questioning paternity must file a case asking to rescind the acknowledgment. After the time period has run (for example, 60 days), the acknowledgment is as binding as a court judgment of paternity and has the same legal force and effect. However, parents can usually challenge the acknowledgment, but only in court, only within a certain time (often between six months and two years) of the date both parents sign, and (in some states) only on limited grounds of fraud, duress or material mistake of fact. The court will generally order the parents and child to undergo paternity tests that determine whether the man is the biological father of the child by comparing certain genetic characteristics that show up in blood or tissue samples from the child and both parents. These samples are obtained either by a simple blood draw or by rubbing a cotton swab on the inside of the cheek. Obviously, if there are any questions about the identity of a child’s biological father, a parent should ask for paternity tests BEFORE signing an acknowledgment form. VII. COURT ACTION – LEGAL ESTABLISHMENT OF PATERNITY In order to bring a paternity action against a putative father, most states require that the mother file a petition or a complaint with the appropriate administrative or judicial authority. Some states also provide that any interested party may file an action against a putative father. Generally speaking, the states provide that a governmental agency, such as a Department of Social Services, Child Support Enforcement, or a District Attorney, may file an action against the putative father only if the mother and/or the child receive support assistance from the state. A determination of paternity is governed by the ordinary rules of civil procedure. The party seeking to establish paternity is entitled to full discovery, to compel the testimony of all witnesses, and to have the case tried by a preponderance of the evidence. Many states conduct pretrial hearings, consent conferences, pretrial inquiries, or informal hearings. Generally, a pretrial hearing is brought as soon as possible after the filing of an action. During the hearing, the court may compel any party to testify under oath or to produce evidence. If a party refuses to testify for fear of self-incrimination, the court may offer immunity. At the conclusion of the hearing, the judge may make the recommendation that the putative father acknowledge paternity. If the putative father refuses, the judge may order a paternity test (if one was not done before). Upon receiving the results of the paternity test, the judge may make a final recommendation. If the final recommendation is refused by any party, the case then proceeds to trial. If the man named as the father of the child denies being the father, or if the mother is unsure of who the father is, the legal action should be filed and genetic tests done. Usually a father will admit paternity when genetic test results show he is the biological father of the child. If the father continues to state he is not the father, he may ask for a court hearing. The judge at a court hearing listens to both sides and considers the test results and other evidence. An action to establish paternity may be brought by the mother, the alleged father, the district attorney or the child. Note: a child over the age of 12 must normally be made a party to such an action. If the district attorney or other state agency brings the action and the alleged father is indigent, he may be entitled to a court appointed attorney to represent him. A minor who is a party to the action must be represented by a court-appointed guardian ad litem. Such an action is typically brought in the family law departments of the courts and many of the same procedures for temporary custody, visitation and support orders are available as in an action for dissolution of marriage. Note, however, that property issues between the mother and father cannot be litigated in the paternity action, but must be brought in a separate civil suit. As more and more parents voluntarily acknowledge paternity at the time of birth or shortly thereafter, the number of paternity cases entering the IV-D system will decrease. However, there will always be cases in which the alleged father does not acknowledge paternity. The reasons a man might not acknowledge paternity include: - A desire to avoid financial responsibility - Genuine doubts about paternity - Inconclusive test results. Whenever paternity is contested in a IV-D case, all parties are required to submit to genetic testing (i.e., mother, child, alleged father). Any one of the involved parties may request genetic testing. In contested cases, the State also has a right to require genetic testing without obtaining a court order. Except in special cases, all parties are compelled to cooperate. In some cases, the state may determine that a woman has "good cause" for refusing to cooperate in the establishment of paternity. Each State determines its own definition of good cause. Possible reasons for "good cause" include: - Danger of physical or emotional harm to the child or the mother - The child was conceived as a result of rape or incest - Legal adoption is pending When the State requests testing, it may seek to recover the costs of the test from the alleged father if paternity is established. The Federal Government will pay 90% of any amounts not recouped. There must be reason to believe the alleged man is the father. This usually means facts that indicate contact around the time of conception. To protect men from false accusations, a woman must sign a sworn statement identifying the man she alleges to be the father of her child. In most cases, genetic testing can prove, beyond a reasonable doubt, whether a named man is or is not the biological father of a particular child. If the alleged father does not acknowledge paternity and agrees to genetic testing, the caseworker will issue an order for genetic testing and schedule another conference to occur after test results are returned. If the alleged father does not agree to genetic testing, a default determination of paternity may be issued. See the section entitled “Genetic/Blood Testing,” below, for information on the science behind these tests and their reliability. i. COURT ACTION – PARTIES & LIMITATIONS The “Parties” to a court case are the people involved in the case. In most states, the child, the mother, the putative father, or a state agency (suing on behalf of the mother) may initiate a paternity action in court. In rare cases, a man claiming to be the actual father may challenge the parenthood of a man who is the legal father. States who have ruled on, or have statutes regarding, this issue, have been mixed in their handling of the situation. Some states allow a court action to proceed, while other states do not consider such an action to be in the best interest of the child and therefore disallow such an action, especially if an excessive amount of time has passed since the birth of the child. Someone wishing to attempt to prove paternity of a child with a legal father is well advised to consult an attorney. A “statute of limitations” is any law that terminates a right to bring a court action due to the expiration of a legal deadline. Though state law varies widely, in general terms a court action regarding paternity may be brought at any time before the child reaches the age of majority (often his/her 18th birthday) by the mother or the father of said child, by the child, or by the a child support enforcement agency. A state child support enforcement agency bringing an action on behalf of a child may sometimes initiate a court action at any time up to the child’s 21st birthday. In many states the child can bring an action at any time before his or her 21st birthday. ii. COURT ACTION – VENUE The term “venue” refers to where, and in which court, a paternity action may be properly filed. Proceedings to establish paternity may normally be initiated in the county where the mother or child resides or in the county where the putative father resides, regardless of what state the child was born in. The fact that the child was born outside of your state of residence does not prevent someone from bringing paternity proceedings in the state of residence. Proceedings must be filed in the appropriate court, and in the appropriate court division. In many states a “family court” or family court division handles paternity cases. A call to your state child support enforcement office, or local court clerk should point you to the correct court. iii. COURT ACTION – NOTICE When attempting to establish paternity by legal action in court, notice must be served on all interested parties in order that they be aware of the pending action and have an opportunity to respond. The “summons” is the document that notifies the putative father of the court action. Normally, the court or any judge, or family support magistrate assigned to the court may cause a summons to be issued, requiring the putative father to appear in court at a time and place designated for the hearing, in order to show why the request for relief should not be granted. Notice to a father who resides out of state may require special procedures. The summons typically contains language to the effect that the putative father (A) he has a right to be represented by an attorney, and if he is indigent, the court will appoint an attorney for him, (B) if he is found to be the father, he will be required to financially support the child until the child attains the age of majority, (C) if he does not admit he is the father, the court or family support magistrate may order a genetic test to determine paternity and that the cost of such test shall be paid by the state in IV-D support cases, and in non-IV-D cases shall be paid by the petitioner, except that if he is subsequently adjudicated to be the father of the child, he shall be liable to the state or the petitioner, as the case may be, for the amount of such cost and (D) if he fails to return the answer form or fails to appear for a scheduled genetic test without good cause, a default judgment shall be entered. iv. COURT ACTION – THE HEARING A hearing will be held at the courthouse. The parties and any witnesses they call may present testimonial or physical evidence to the judge. In most states, a judge rather than a jury will hear the evidence. The court may determine that it is in the best interest of any of the parties to the case for the hearing not to be open to the public. A record of what happens at this hearing will normally be kept if any party requests so or the court orders that a record be kept. Witnesses may be required to appear in court by use of subpoenas. It is prudent to subpoena any witness you need to testify on your behalf in order that they be legally required to appear. A potential witness’s failure to obey a subpoena summoning them to court is unlawful, and a warrant may be issued for the person’s arrest. The hearing may be delayed until the witness is found and made to testify. Any party may seek a restraining order or injunction. Also, any party can seek temporary orders as to custody, parenting time, and support once the court enters an order determining the existence of the parent and child relationship. v. COURT ACTION – EVIDENCE AND PRESUMPTION OF PATERNITY If the evidence is strong enough, most states presume that a man is the father of a child. In many states, the following items are typically considered to be either presumptions of paternity or evidence of paternity. i. The man and the child’s natural mother are married or have been married to each other and the child is born during the marriage, within 300 days after the marriage is terminated by death, annulment, declaration of invalidity of marriage, dissolution of marriage (divorce) or after a decree of legal separation is entered by the court. ii. Before the child’s birth, the man and the child’s natural mother have tried to marry one another by a marriage solemnized in obvious compliance with law, although the attempted marriage is or could be declared invalid, and if the attempted marriage could be declared invalid only by the court, the child is born during the attempted marriage or within 300 days after its termination by death, annulment, declaration of invalidity of marriage, dissolution of marriage (divorce); OR if the attempted marriage is invalid with a court order, the child is born within 300 days after the couple stops living together. iii. After the child’s birth, he and the child’s natural mother have married, or tried to marry, each other by a marriage solemnized in obvious compliance with law, although the attempted marriage is or could be declared invalid. iv. The man has acknowledged his paternity of the child in writing filed with the court or registrar of vital statistics, if this acknowledgment has not previously become a legal finding. v. With the man’s consent, he is named as the child’s father on the child’s birth certificate. vi. The man is obligated to support the child under a written voluntary promise or by court order or by an administrative order. vii. While the child is under the age of majority the man receives the child into his home and openly holds out the child as his natural child. viii. The man acknowledges his paternity of the child in writing filed with the court or registrar of vital statistics. ix. The mother does not dispute a claim of paternity within a reasonable amount of time, and any man presumed to be the father gives his written consent. x. The man undergoes genetic or other tests of inherited characteristics by a court- approved agency, and these tests show that there is a very high percent that he is the father. xi. The child of a married couple who are both cohabiting with each other and not impotent or sterile is normally conclusively presumed to be the child of the married couple. There is normally a limited right of rebuttal by blood/genetic testing – usually only the father, mother, the child or a man who is presumed to be the father under any other presumption can bring the action to establish paternity based upon the genetic testing and only within a few years of the birth. There has been and continues to be much litigation regarding this presumption and the law may be evolving in this area. Evidence may be admissible to show that the parties were not cohabiting during the entire period of possible conception to prove that conception was not possible during the limited period of cohabitation. vi. COURT ACTION – GENETIC / BLOOD TESTING In any civil case in which paternity is a relevant fact, the court must order the mother, child and alleged father to submit to genetic tests on the motion of any party to the case. The court may also order such tests on its own initiative. Laboratory tests comparing the DNA of two persons can determine to a very high degree of probability whether the two persons are parent and child. Blood tests can answer the same question to a high degree of accuracy. Ordinarily, the parties will share the cost of the tests, although the court has the power to make orders that fit the situations of the parties. If the district attorney requests the tests, it must pay for them, normally subject to reimbursement from the father if proven to be such. Tests are administered by approved facilities, and may result in presumptive, or conclusive evidence of paternity, depending on state law. The parties may administer their own tests (such as home tests from commercial kits of various sorts) but the court will rule on their admissibility and weight. How genetic testing works: - For each genetic test, markers appear in pairs. - For each pair of the child’s markers, one comes from the mother and one comes from the father. - Under normal circumstances, if the tested man is missing the marker(s) contributed by the father, he is excluded from paternity. - When the genetic markers match, the probability of paternity can reach into the high 90’s percentile. There are several types of genetic test systems each with differing degrees of discriminatory power. The reliability of a genetic test is determined by its power to exclude falsely accused men. If the accused man does not have the identified genetic markers, he cannot be the father. Genetic tests can be divided into two categories: (1) Those that analyze fluids or substances that identify genetic markers. Genetic test that analyze fluids or substances that identify genetic markers are often referred to as conventional tests. These tests include: i. Red Blood Cell Antigens: Excludes approximately 63-72% of mistakenly alleged men. Any test that directly excludes a man is sufficient to exclude a man from paternity. ii. Red Cell Enzymes and Serum Protein: Excludes approximately 70-90% of mistakenly alleged men. When Red Cell Enzymes and Serum Protein are combined with Red Blood Cell tests, the certainty of exclusion increases to 89-96%. iii. Human Leukocyte Antigen (HLA): Excludes approximately 93.5% of mistakenly alleged men. When this test is combined with the others, the average exclusion probability is more than 99%. Genetic test labs select from several of these tests. Each test procedure contributes to the probability of exclusion. At the same time, each test provides additional evidence that an included man is indeed the father of the child. (2) Those that analyze the DNA molecule itself. DNA testing analyzes the DNA molecule itself. DNA testing is increasingly selected as the test system of choice for many States because: i. DNA test results are highly reliable. One DNA test can have a higher power of exclusion than all of the conventional tests combined. ii. Specimen collection can be simple and noninvasive. Conventional tests require a blood sample for analysis. Blood must be carefully preserved and transported. Since DNA is present in all cells of the body, DNA testing can be done on a specimen collected by gently rubbing the inside of the cheek with a cotton swab. This is known as the buccal swab method. If stored properly, specimens collected in this way need no refrigeration and can be used at any time. In fact, if a tissue sample is available, DNA testing can establish paternity even when the alleged father is deceased. Test results are reported as either positive or negative. i. Negative results: When the named man is not the biological father, genetic testing can provide conclusive evidence of false allegation. Negative genetic test results provide strong evidence that a particular man is not the father of the child. Based on these results all claims for support are normally dropped. ii. Positive results: When a man is not excluded, the probability that he is indeed the father of the child reaches into the high 90’s percentile. Based on this evidence, the law allows States to presume paternity in cases where the probability is high. The exact numbers used to determine paternity varies from State to State but is usually 95% or higher. When tests indicate a high probability of paternity (a rebuttable presumption of paternity), it becomes the man’s responsibility to disprove the findings. If he has not challenged the results within the number of days specified in State procedures, (and the genetic test results reach the threshold of probability established by the State), the genetic test results become a rebuttable, or, at the option of the State, a conclusive presumption of paternity. There is no right to a jury trial. It is the genetic testing lab’s responsibility to assure that the results reported are the correct results for that particular sample. This is important because, once excluded, a man can never be required to provide support for that child. An error in labeling or data entry could deny a child rightful support forever. In most cases, when a man is wrongfully excluded it is because the specimen was taken from a "wringer" or imposter-- a man who was not the father. If the mother is not present at the time the specimen is collected, it is important that the identity of the man be checked carefully against identifying photos. Important points to remember: - When paternity is contested all parties involved are required to submit to genetic testing. - Genetic test results provide conclusive evidence that a man is not the father of the child. - When a man is not excluded, the probability that he is the father can reach into the high 90- percentiles. vii. COURT ACTION – DEFENSES Defenses to a paternity action involve usual items of evidence and testimony challenging the evidence put forth by the petitioner/plaintiff. “Presumptions,” other than a conclusive level of DNA similarity, will only be determinative if not rebutted by sufficient evidence to the contrary. The party who wishes to overturn a presumption has the burden of proving sufficient facts to do so. If two presumptions are in conflict, the court will decide which is the weightier and prevailing presumption. For example, depending on all the facts and circumstances, a man who receives the child into his home and openly holds out that the child is his own might be adjudged the father, even if another man is likely (but not conclusively) the child's biological father as shown by a blood or DNA test. VIII. CHILD CUSTODY, VISITATION & SUPPORT The majority of paternity cases are instituted in an attempt to collect support payments of behalf of the minor child from a father who is not acknowledging the child and not paying support. Child custody and visitation issues are typically decided in the same court action. Governmental child support enforcement agencies exist for the purpose of establishing and enforcing child support obligations upon any reluctant fathers, which often involves proving the paternity of the father. It is important to note that in those cases where paternity is acknowledged voluntarily -- without a court action for paternity establishment and child support -- the support issues, as well as custody and visitation issues are not resolved by the voluntary acknowledgement. In these situations, it may be necessary to go to court order to determine each parent’s rights and obligations regarding support, visitation and custody of the minor child. If you consult an attorney to help with your case, he or she will have all the necessary knowledge and information regarding these matters. Your local government child support enforcement entity may also be able to assist you not only on the issue of child support, but with information or actual representation regarding visitation and custody. IX. STATE PATERNITY LAW SUMMARY AND LINKS Link to USLF Illinois Paternity Law Summary: http://secure.uslegalforms.com/lawsummary/IN/IN-598P.htm Paternity Forms For Paternity Affidavit contact: Vital Records Department Indiana State Department of Health 6 West Washington Street Indianapolis, IN 46204 (317) 233-2700 IN Family and Social Services forms page - http://www.in.gov/fssa/forms/ Venue - §31-14-3-2 Venue lies in the county in which the child, the mother, or the alleged father resides. Parties - §31-14-4-1 A paternity action may be filed by the following persons: (1) The mother or expectant mother. (2) A man alleging that: (A) He is the child's biological father; or (B) He is the expectant father of an unborn child. (3) The mother and a man alleging that he is her child's biological father, filing jointly. (4) The expectant mother and a man alleging that he is the biological father of her unborn child, filing jointly. (5) A child. (6) The division of family and children or a county office of family and children under section 3 of this chapter. (7) The prosecuting attorney under section 2 of this chapter. Limitations - §31-14-5-2 (a) A person less than eighteen (18) years of age may file a petition if the person is competent except for the person's age. A person who is otherwise incompetent may file a petition through the person's guardian, guardian ad litem, or next friend. (b) Except as provided in subsection (c), a child may file a paternity petition at any time before the child reaches twenty (20) years of age. (c) If a child is incompetent on the child's eighteenth birthday, the child may file a petition not later than two (2) years after the child becomes competent. Genetic Testing – §31-14-7-1 A man is presumed to be a child’s biological father if the man undergoes a genetic test that indicates with at least a ninety-nine percent (99%) probability that the man is the child's biological father. Paternity-related Links IN Family and Social Services establishing paternity http://www.state.in.us/fssa/children/support/father.html IN Department of Health: http://www.in.gov/isdh/bdcertifs/bdcert.html IN Bureau of Child Support: http://www.in.gov/fssa/children/support/ X. CONCLUSION Though state paternity laws are steadily becoming more uniform, there remain significant differences in the laws and procedures in many states. This Handbook should only be used as a guide to inform oneself about the issues and processes involved in a situation where paternity is at issue. State resources, including an attorney and/or child support enforcement personnel should be consulted in order to ascertain specific laws and procedures in your state.