Law Office of Shane BC Watson

Attorney at Law | LaPorte, Indiana

Dec 07

Indiana Family Law: Custody and Paternity – A Brief Explanation

by Shane Watson

This is a very basic tutorial drafted by the Law Office of Shane B.C. Watson providing definitions and general facts pertaining to the rights and obligations of parents and the rights of your children as a resident of Indiana particularly those, which reside in La Porte County (La Porte and Michigan City), Porter County (Valparaiso, Porter and Chesterton), Starke (Knox), Pulaski County (Winamac) and St. Joseph County (South Bend and Mishawaka).

The birth of a child is a miraculous occasion. Mothers and fathers are justifiably excited about the new edition that will soon be occupying their home.  The arrival of a newborn can also create a great deal of stress and tension in a household or in less traditional settings in several households.  As you would undoubtedly guess, there is an overwhelming amount of Indiana law pertaining to paternity, custody, child support, and visitation (which is referred to as parenting time in Indiana) that is necessary to address matters involving the child when schisms in relationships occur and the best interest of the child must be determined.  As a pre-New Year’s resolution, I hope to begin a blog to supply readers with basic legal facts about family law.  In this edition, I will supply some legal tidbits pertaining to paternity and custody that every current or expecting mother and father should know about their rights and obligations as parents.

                Here are a few basic definitions and facts that should be understood by both parents.

Legal custody:  Is the right of a parent to help and participate in the decision-making process regarding such matters as what school the child will attend, what, if any, religion the child will participate, medical issues involving the the minor, whether or not the child will participate in extracurricular activities and if so what.

Physical custody:  Is also commonly referred to residential custody or in some haughty circles domiciliary custody.  In most situations, the child will reside with one parent, who is termed the residential or custodial parent and the other parent will be dubbed the non-custodial or non-residential parent.  In most circumstances, the non-custodial parent is entitled to visitation or what is denoted parenting time in Indiana.

Joint legal custody:  Is commonly ordered by the Court, so both parents can aid in the upbringing of their child(ren).  However, if the parents simply cannot put aside their differences for the betterment of the child, sole legal custody may be ordered by the Court. This would vest all decision-making power in one parent pertaining to the above-referenced legal custody definition.

Split or joint physical custody:  This is the oft tried and rarely accomplished splitting equally or as close to possible the duration of time that the child resides with each parent.  Although I have seen this extraordinary feat accomplished and court-approved, the Court is often apprehensive to grant such a request.  A child thrives on stability and routine (whether the child is aware of it or not) and shuffling a child from one house to another with no real home base is frequently viewed as harmful to health and care of the child and therefore,  not in the the child’s best interest.  With that being said, it is not unheard of and the Court may order this and has done so, when it appears that this particular living situation is in the best interest of the child.

Paternity:  The establishment of paternity is designating a particular individual as the biological father.  There are several ways to establish paternity through presumption or attestation.  Once paternity is established it creates certain rights and obligations, such as the right of a parent to visit with their child and the right of the custodial parent to request support from the non-custodial parent. The only way to enforce the right to parenting time or enforce a support obligation is to file a Petition for Paternity with the Court or have the new parents’ sign an agreement or stipulation with the Prosecutor’s Child Support Division agreeing to permit parenting time and calculating the proper amount of child support, which a non-custodial parent is obligated to pay. A parent that does not receive support from the other parent may not deny visitation to the other simply based on nonpayment once an agreement or order is in place.  If you don’t have an agreement or an
order issued by the court, despite your status as parent there will be no way to enforce your right to see your child.

If your child is not receiving support, a court order or agreement signed by the parties and authorized by a judge is the only way to have a regular and enforceable amount of payment that must be paid.  Once, an order is in place the party ordered to make payment is legally obligated to make pay or possibly have them taken directly from their check through a legal document called an Income Withholding Order (IWO).  A party that fails to make child support payments as ordered by the court may find that themselves in contempt of court or in extreme instances, even jail.  If the obligated parent has lost a job or their income has drastically diminished, the party should seek legal counsel to file a Petition to Modify Child Support.  Conversely, if the paying party’s income has increased significantly since the previous Order, the other parent may wish to retain legal counsel to file a Petition to Modify Child Support to seek an increase in a previously ordered support payment.

A man is presumed to be the biological father of a child if the father and the child’s biological mother are/or have been married to each other and the chid is born during or not after three hundred (300) days after the termination of the marriage by whatever means.  Please note that this is a presumption and not necessarily a fact.  As a practioner of family law, infidelity and monetary issues are probably the two greatest reasons cited for divorce or separation.  In rare instances, this infidelity leads to offspring where the husband is not the natural father.  Please note I have seen very few occasions where this is the case.

If a child is born out of wedlock and a man holds the child out to be his own child, takes the child into his home, despite the fact he may very well know that the child is not his own, there is a rebuttable presumption (which means that the belief that the man is the father is assumed, but can  be disproved by viable facts) that the man is not the father.  The other way that a man can be found to be the father of a child is by signing a paternity affidavit attesting to the be the father of the child.  I will address the paternity affidavit including the benefits, responsibilities, rights and pitfalls of this particular document in my next installment, which will hopefully be available shortly after the new year.

This blog is a product of the Law Office of Shane B.C. Watson and is by no means all inclusive and should not be construed as legal advice.  Each case is different and what may be very important in one case may not matter in the least in another case that would seem indistinguishable from the first to most people not versed in the law.  If you are reading this blog, it is likely that you are in need of legal assistance.  If you require legal advice, please seek out licensed legal counsel to address and resolve your problems.   This blog is presented by the Law Office of Shane B.C. Watson for educational purposes. Shane encourages you to call or email his office located in downtown La Porte to schedule a free initial consultation.    

Next issue: The Paternity Affidavit:  Case law, Statute and Recent Changes in the Paternity

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The Law Office of Shane B.C. Watson currently serves clients in the following cities and towns: LaPorte, Michigan City, Porter, Valparaiso, Hamlet, Knox, and North Judson.