Mothers Rights Vs. Fathers Rights in Indiana

By Beverly Bird

Updated December 14, 2018

Parents hold baby's hands.  Happy family in park evening


Parental rights, particularly custodial rights, often vary by state. Mothers have historically been awarded custody more often than fathers in Indiana, but that trend is increasingly being challenged. Senate Bill 100, proposed in 2014, would have established and protected distinct parental rights in the state’s laws for both parents, but it failed to pass. All the same, some rules are in place.


Both mothers and fathers are entitled to the same rights in Indiana, unless custody becomes a factor when they don't live together.

When Parents Are Married

A man does not have any parental rights in Indiana unless and until he is legally recognized as the child’s father. If he was married to the mother at the time of the child’s birth, that’s good enough for Indiana. Under state law, this automatically makes him the child’s legal father, even if he’s not actually the biological father. He’s also considered to be the legal father if the child is born within 300 days after the marriage ends. If either case applies, he has the same entitlement to parental rights as the child’s mother.

When Parents Are Not Married

The situation changes when parents aren’t married on either the date of conception or the date of birth. In this case, additional steps must be taken to establish fatherhood. Parents can jointly sign a paternity affidavit stating that the man is indeed the child’s father. “Jointly” means they both must sign the affidavit, but they can’t be together in the same room when they review and sign it, at least not if they do so in the hospital within 72 hours of the child’s birth. The state implements this rule to ensure that both parents sign the affidavit of their own free will. The father is then named on the child’s birth certificate and awarded parental rights and responsibilities. If parents miss this narrow window of time, they can still file a paternity affidavit with their local health department any time until the child becomes a legal adult.

If either parent disputes that the man is the child’s father, the matter has to be decided by the court. Either parent can ask a judge for a ruling that officially declares legal paternity. The judge typically orders a DNA test to decide the matter. This process culminates in a hearing where the judge will give his decision. A married parent who does not believe he is the child’s biological father can use this process to disprove his own paternity.

Who Gets Custody?

Both parents have equal custodial rights and responsibilities after paternity has been established, but custody becomes an issue when parents don’t live together. Just like in most other states, Indiana courts base custody on a series of factors that are intended to determine what's in the best interests of the child. Indiana’s best interests factors are detailed in the state’s Code Annotated Section 31-14-13-2, and a judge must consider each of them to decide which parent is most suited to have custody. Parents’ genders are not one of these factors. Beyond this, things can get a little confusing because Indiana recognizes two different types of custody and the best interests factors for each are marginally different.

Determining Physical Custody

Physical custody refers to the parent with whom the child lives most of the time. Sole physical custody, where the child lives with one parent literally all the time and has no contact with the other, is rare in Indiana because it’s very unusual that the other parent would have no parenting time with the child at all. When a child spends more than 50 percent of his time in one parent’s home, that parent is said to have primary physical custody, rather than sole physical custody. The other parent has parenting time, which used to be called “visitation.”

Best interests factors for deciding physical custody include the wishes of the child; which parent has historically been his primary caregiver; and his relationship with his siblings, extended family and other individuals who live in each parent’s home. They also include considerations of his attachment to the community in which each parent’s home is located and to the school district that serves each parent's residence. Courts are very reluctant to make a child change schools or otherwise disrupt his life just because his parents no longer live together. These factors tend to skew physical custody decisions toward whichever parent is remaining in the family home and in favor of the one who has always taken care of the child, regardless of whether this is the mother or the father.

Deciding Legal Custody

Legal custody refers to the right of each parent to make major decisions on behalf of the child, including things like health care, education and religious upbringing. In this case, there is such a thing as sole custody. A parent would have sole legal custody if the court orders that he or she can unilaterally make all these decisions without any input from the other. It’s possible for one parent to have sole legal custody without having primary physical custody and vice versa. Indiana courts lean toward joint legal custody between parents unless one parent is clearly incapable of making rational decisions or the parent's relationship has broken down to such a point that they can’t communicate or work together at all for the benefit of the children.

Other Parental Rights

Both parents have an equal right to information about their child, and this right supersedes both physical or legal custody terms in Indiana. Regardless of which parent has what type of custody, both are always entitled to access to all the child’s school, medical and mental health records. They also both have an equal responsibility to financially support the child. This means that either parent has the right to petition the court for child support from the other if he or she has primary physical custody.