Custody for unmarried parents in Indiana follows a different path than custody in a divorce, and getting it wrong can have long‑term consequences for both you and your child. This guide explains how custody, paternity, child support, custody petitions, and parenting plans work when parents were never married in Indiana.
Unmarried parents custody Indiana law starts from a very different default rule than married parents. In most cases, the mother has automatic custody at birth, and the father must take legal steps before he has enforceable rights. This blog outlines how to establish paternity, obtain custody and parenting time orders, address child support for unmarried parents, and build a workable parenting plan under Indiana law.
Who Has Custody When Parents Aren’t Married?
When a child is born to unmarried parents in Indiana, the mother has sole physical custody by operation of statute unless and until a court orders otherwise. The father does not automatically have legal or physical custody, even if he is listed on the birth certificate or everyone informally acknowledges he is the father.
If unmarried parents continue living together and co‑parenting, they can often function without court orders, but the law still treats the mother as the custodial parent if a dispute arises. Problems typically surface when the relationship ends, one parent withholds the child, or a parent relocates or denies contact, at which point formal custody and parenting time orders become critical.
Paternity Establishment in Indiana
To move from informal arrangements to enforceable rights, unmarried fathers must establish legal paternity. Indiana law recognizes two primary paths to paternity for children born outside of marriage: a paternity affidavit or a court paternity action.
Paternity Affidavit
A paternity affidavit is a statutory form that the mother and alleged father can sign at the hospital or later through the appropriate state agency. A properly executed paternity affidavit:
- Conclusively establishes the man as the legal father without further court proceedings.
- Gives the father a right to parenting time in accordance with the Indiana Parenting Time Guidelines, subject to any later court orders.
- Leaves the mother with sole legal and primary physical custody unless the affidavit or a later court order provides otherwise.
Even after a paternity affidavit, a father typically must file a custody petition if he wants a detailed custody/parenting time order rather than just a general right to parenting time.
Court‑Filed Paternity Actions
If the parties do not sign a paternity affidavit, either parent (or in some cases a prosecutor or the child) can file a paternity action in court. In that case:
- The court may order genetic testing or make findings based on evidence to determine paternity.
- Once paternity is established, the court may, in the same case, decide custody, parenting time, and child support.
- Indiana code allows paternity actions beyond infancy under specific timelines and exceptions, including certain filings within two years or later by agreement or when the child is still a minor.
For unmarried fathers, timely paternity establishment Indiana actions are often the gateway to any enforceable parenting role.
Custody Framework for Unmarried Parents
Once paternity is legally established, Indiana courts analyze custody for unmarried parents using the same “best interests of the child” standard applied in divorce cases. The law does not favor mothers or fathers once paternity is confirmed; instead, courts evaluate statutory factors case by case.
Key best‑interest considerations include:
- The child’s age and developmental needs.
- The child’s relationship with each parent and any siblings.
- Each parent’s mental and physical health, and ability to meet the child’s needs.
- The stability of each home, including routines, school, and community connections.
- Any history of domestic violence, substance abuse, or neglect.
Courts may award sole legal custody, joint legal custody, primary physical custody to one parent with parenting time to the other, or various shared‑time arrangements tailored to the facts.
Legal vs. Physical Custody for Unmarried Parents
Understanding the legal distinctions helps parents structure realistic requests in custody petitions.
- Legal custody: The authority to make major decisions for the child, such as education, medical care, and religion.
- Physical custody: Where the child primarily lives day to day.
For unmarried parents:
- Before any order, the mother typically has sole physical custody and practical decision‑making control.
- After paternity, courts may leave sole legal custody with the mother, award joint legal custody, or grant sole legal custody to the father in unusual circumstances, always guided by best interests.
Filing Custody Petitions as an Unmarried Parent
A custody petition is the mechanism that moves you from informal understandings to enforceable court orders. For unmarried parents, custody petitions are typically filed within a paternity case, or after paternity is already established.
Where and How to File
- A paternity/custody petition is filed in the appropriate Indiana trial court (often the circuit or superior court) in the child’s county of residence.
- The petition usually asks the court to establish paternity (if not already done), custody, parenting time, and child support in one proceeding.
- Proper service on the other parent and compliance with Indiana procedural rules is required; defective filings can delay or undermine your case.
What the Court Can Order
In an unmarried parents custody Indiana case, the court may:
- Confirm paternity and enter a paternity decree.
- Allocate legal custody (sole or joint) and primary physical custody.
- Order parenting time consistent with or deviating from the Indiana Parenting Time Guidelines.
- Set child support based on the Indiana Child Support Guidelines, including retroactive support where appropriate.
Child Support for Unmarried Parents
Child support for unmarried parents is not optional and is handled under the same guidelines used in divorce cases once paternity is established. Indiana uses an Income Shares Model that considers both parents’ incomes, number of children, parenting time credits, and certain child‑related expenses.
Important points:
- A custodial parent (often the mother, at least initially) can seek support only after legal paternity is established if the parents were not married.
- Support may be ordered retroactively back to the date of filing or, in some cases, to the child’s birth, depending on evidence and statutory provisions.
- Non‑payment can lead to wage garnishment, tax refund interception, license suspensions, and contempt proceedings, among other enforcement tools.
It is critical to understand that support and parenting time are legally separate: a parent cannot withhold the child to punish non‑payment, nor can a parent stop paying support because parenting time is being interfered with.
Parenting Time Guidelines and Common Schedules
Once paternity is confirmed, Indiana Parenting Time Guidelines apply to both married and unmarried parents. These guidelines provide minimum standards for parenting time, especially for the non‑custodial parent, but courts may deviate when justified by the child’s best interests.
Common schedules include:
- Alternating weekends with a mid‑week evening visit, often used when one parent has primary physical custody.
- 2‑2‑3, 3‑4‑4‑3, and 5‑2‑2‑5 patterns for near equal parenting time, typically when parents live near each other and can communicate effectively.
- Holiday and school break rotations to ensure both parents have meaningful time on important dates.
Courts can modify the frequency and supervision level of parenting time if there are concerns about safety, substance abuse, or other risk factors.
Building an Effective Parenting Plan
A parenting plan translates legal custody and parenting time concepts into a detailed, day‑to‑day roadmap. For unmarried parents, a thorough plan is often the best way to reduce conflict after relationship breakdown.
A strong parenting plan typically addresses:
- Regular parenting schedule (days, exchange times, transportation responsibilities).
- Holidays, birthdays, and school breaks, including start and end times and how you will alternate.
- Communication methods between parents and between each parent and the child.
- Decision‑making protocols for medical care, education, extracurriculars, and religion consistent with legal custody orders.
- Dispute‑resolution mechanisms, such as mediation before returning to court when disagreements arise.
Parents may agree to a parenting plan and ask the court to approve it, or the court may impose a plan when they cannot reach agreement.
Relocation, Interstate Issues, and the UCCJEA
Even for unmarried parents, interstate moves trigger specific jurisdiction rules under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), adopted in Indiana at Indiana Code 31‑21. Generally:
- The child’s “home state” (where the child lived for at least six months before filing) has initial authority to decide custody.
- Indiana retains exclusive, continuing jurisdiction as long as the child or a parent still lives here and there remains a significant connection.
- Another state can only modify an Indiana custody order if Indiana relinquishes jurisdiction or everyone has moved away.
- Courts may exercise temporary emergency jurisdiction when a child present in the state faces immediate danger.
Unmarried parents contemplating relocation should seek legal advice well in advance, as failure to comply with notice and relocation rules can seriously affect custody rights.
Practical Tips for Unmarried Parents
Unmarried parents can protect their rights and their children’s stability by taking proactive steps.
For Unmarried Mothers
- Consider formalizing paternity and a custody/parenting plan even if things are amicable, to prevent future disputes or sudden removal of the child.
- Use court‑ordered child support instead of informal payments so obligations are enforceable and properly credited.
For Unmarried Fathers
- Establish paternity as soon as possible, via affidavit or court action, to unlock custody and parenting time rights.
- File custody petitions and ask for parenting time orders that reflect your actual involvement and availability, supported by documentation of your role in the child’s life.
For both parents, maintaining respectful communication, following existing orders, and documenting major events can be critical if the case later returns to court.
Key Differences: Married vs. Unmarried Parents
The table below highlights some core differences in how Indiana handles custody when parents were never married.
| Issue / Question | Married Parents (Divorce/Separation) | Unmarried Parents (Paternity/Custody) |
| Default custody at birth | Both parents generally share equal custodial rights until a court order. | Mother has sole physical custody until court orders otherwise. |
| Need to establish paternity | Presumed if child born during marriage. | Must be established by affidavit or court. |
| Case type | Dissolution or legal separation with custody issues. | Paternity and custody/parenting time/support in same or related case. |
| Standard for custody | Best interests of the child, no gender presumption. | Same best‑interest standard once paternity is established. |
| Application of Parenting Time Guidelines | Apply to non‑custodial parent parenting time. | Apply once paternity is established. |
| Child support | Ordered in the divorce/separation case. | Ordered after paternity; same guidelines apply. |
Frequently Asked Questions
Who has custody of a child when there is no court order and the parents are unmarried?
In Indiana, the mother has sole physical custody by statute until a court orders otherwise, even if the father acknowledges the child.
Does signing a paternity affidavit give an unmarried father custody?
A paternity affidavit establishes legal paternity and gives the father a right to parenting time under the Parenting Time Guidelines, but the mother generally retains sole legal and primary physical custody unless the affidavit or a later order changes that.
Can unmarried parents create their own parenting plan without going to court?
Yes, parents may agree informally on custody and parenting time, but without a court order the agreement may be difficult to enforce if conflict arises or one parent relocates or withholds the child.
How is child support calculated for unmarried parents?
Once paternity is established, Indiana applies the same Child Support Guidelines used in divorce, relying on a worksheet that considers both parents’ incomes, parenting time, and child‑related expenses.
Can an unmarried father ask for joint or primary custody?
Yes, after paternity is established, an unmarried father can petition for joint legal custody, shared physical custody, or even primary custody, and the court will decide based on the child’s best interests.
If you are an unmarried parent confronting custody, paternity, or child support issues in Indiana, a focused strategy tailored to your facts can make a significant difference in both the outcome and your child’s long‑term stability.
