Indiana Law Review


You Shall Always Be My Child: The Due Process
Implications of Paternity Affidavits Under

Indiana Code Section 16-37-2-2.1

Kayla Britton

Introduction

The phone rang. From hundreds of miles away, Jason
1

learned that he was

going to be a father. Kendra was born a few months later, and Jason's life

changed forever. This father and daughter share a special bond, one that no law

should sever.

Jason is one of the lucky ones. Many unwed fathers will never know their
children. Indiana denies all fathers who do not marry the mother, or execute a
paternity affidavit, the protections of legal paternity.

2
Whether the father knew

of the pregnancy or attempted to have contact during or shortly after the

pregnancy is immaterial.
3

His failure to act, regardless of whether he knew he
had a duty to act, serves as an implied waiver of his interest in his child.

4
The law

shows no sympathy for the plight of many unwed fathers.
Indiana denies nonmarital fathers fundamental due process rights. Indiana's

paternity laws ensnare some unwitting fathers into assuming paternity ofchildren
without full disclosure of what they are signing.

5 Worse still, Indiana denies
many unwed fathers the opportunity to ever develop a relationship with their
children because those fathers never learn the mother was pregnant.

6
Speedy

determination of paternity cannot justify such a high cost. With approximately

forty percent of births occurring outside of marriage,
7
Indiana urgently needs to

* J.D. Candidate, 2010, Indiana University School of Law—Indianapolis; B.A., 2006,
Purdue University, West Lafayette, Indiana. I would like to thank my eternally devoted husband,
Kerby, who patiently endured the writing process and was always more than willing to be my

sounding board. I owe all ofmy achievements to him. I would also like to thank Professor Jennifer
Drobac and Master Commissioner Alicia Gooden for their helpful thoughts on my topic. Finally,
I would like to thank my stepdaughter, Teeya, for having the courage to go for what she wants. She
is my inspiration in everything I do.

1

.

Names have been changed, but the depicted story is true.

2. SeelM). CODE §§31-14-7-1, -2-1 (2008).

3. See In re Paternity ofBaby Doe, 734 N.E.2d 28 1 , 287 (Ind. Ct. App. 2000) (placing the

burden on the putative father to inquire about pregnancy or risk forfeiture of right to object to the

adoption).

4. See, e.g. , Ind. Code § 3 1 - 1 9-9- 1 5(a) (2008) (noting that the "father's consent to adoption

... is irrevocably implied" if he fails to file a paternity action).

5. See, e.g., In re Paternity ofM.M., 889 N.E.2d 846, 849 n.l (Ind. Ct. App. 2008).

6. See, e.g., In re Paternity ofBaby Doe, 734 N.E.2d at 287.

7. Pub. Health Sys. Dev. & Data Comm'n, Data Analysis Team, Ind. State Dep't of
Health, Indiana Natality Report—2006, tbl. 25 (2008), http://www.in.gov/isdh/reports/
natality/2006/tbl25a.htm (showing that Indiana's birth rate among unmarried women was 41.2%

in 2006); see Brady E. Hamilton et al., Ctr. for Disease Control, National Vital



500 INDIANA LAW REVIEW [Vol. 43 :499

reexamine the state's approach to paternity determinations.

Indiana must approach paternity in a new way, and this Note offers new
framework to that effect. This Note references three different categories of men
in discussing this sensitive issue. "Biological fathers" are men who are
biologically related to the child in question. "Legal fathers" are men who have
completed a paternity affidavit,

8
but may not be biological fathers. "Putative

fathers" are potential fathers.
9

Part I ofthis Note provides an overview ofthe legal developments for unwed
fathers and specifically focuses on how the U.S. Supreme Court has defined the
rights of the unwed father. Part II describes the social and legal background in
which Indiana's paternity law has developed. Part III outlines Indiana's approach

to voluntary acknowledgement ofpaternity and Indiana's public policy regarding

nonmarital children. Part IV explores the constitutional problems with Indiana's
treatment of unwed fathers. Part V proposes a new framework for Indiana's
approach to paternity, including increased notice prior to execution of the

paternity affidavit and encouragement ofgenetic testing, legal recognition ofdual

paternity, and enhanced putative father registries.

I. The Evolution of the Rights of Unwed Fathers

Under the common law, "an illegitimate child is filius nullius [the son of
nobody

10
], and can have no father known to the law."

11
The law denied

illegitimate children many rights available to marital children, such as the rights
to inherit, to receive support from the father, and to bring certain tort actions.

12

The U.S. Supreme Court has since rejected blanket discriminations against
nonmarital children.

13
Nevertheless, public policy still generally disfavors

illegitimacy.
14

StatisticsReport 4 (2007), http://www.cdc.gov/nchs/data/nvsr/nvsr56/nvsr56_07.pdf(indicating

that the national birth rate for unmarried women was 38.5% in 2006).

8. See discussion infra Part III.

9. Indiana defines a putative father as a man who is neither the presumed biological father

nor the legal father. Ind. Code § 3 1-9-2-100 (2008).

10. In re Paternity of E.M.L.G., 863 N.E.2d 867, 870 (Ind. Ct. App. 2007) (citing In re

Paternity of H.J.B., 829 N.E.2d 157, 160 (Ind. Ct. App. 2005)).

11. Lessee of Brewer v. Blougher, 39 U.S. 178, 198 (1840).

12. Mary Kay Kisthardt, OfFatherhood, Families and Fantasy: The Legacy o/Michael H.

v. Gerald D., 65 TUL. L. Rev. 585, 588 (1991).

13. See Gomez v. Perez, 409 U.S. 535, 538 (1973) ("[A] State may not invidiously

discriminate against illegitimate children by denying them substantial benefits accorded children

generally."); Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 175-76 (1972) (holding that Louisiana
may not deny equal recovery from workmen's compensation claims for illegitimate children); Levy

v. Louisiana, 391 U.S. 68, 71-72 (1968) (holding that denying recovery for the mother's wrongful

death based solely on the child's illegitimacy is invidious discrimination in violation ofthe Equal

Protection Clause).

14. See In re Paternity ofE.M.L.G., 863 N.E.2d at 869.



20 1 0] YOU SHALL ALWAYS BE MY CHILD 50

1

Although the Supreme Court rejected the unequal treatment of nonmarital

children under the U.S. Constitution, it has hesitated to extend such protection to

the unwed fathers. 15 On several occasions, the Court has addressed the nature of
an unwed father's interest in his child.

16 The unanswered questions left by its
opinions indicate the Court's unwillingness to define the precise interest an

unwed father has in his child.
17 The states retain the discretion to define a

nonmarital father's interest in his child.
18

A. 1972: Stanley v. Illinois
79

Joan and Peter Stanley lived together intermittently as unwed romantic
partners for eighteen years and had three children together.

20 When Joan died,
Illinois took the children into custody.

21
Under state law, nonmarital children

became wards of the state if the mother died.
22

Whether Peter was unfit to be a
father was irrelevant under the statute.

23 He was unfit simply because he had
never married the mother.

24

Peter challenged the statute under the Equal Protection Clause of the

Fourteenth Amendment.
25

The State presumed that all married fathers were fit,
but all unmarried fathers were unfit.

26 The Court held that this type of"procedure

by presumption" violated Peter's due process rights.
27 As a matter ofdue process,

he was entitled to a fitness hearing before he lost custody of his children.
28

Denying a hearing for unmarried fathers while allowing for a hearing for all other

parents who risk losing custody of their children violated the Equal Protection
Clause.

29

The Court emphasized the strong interest a parent has in the child that he has
"sired and raised."

30
The decision also displays the Court's discomfort with

"procedure by presumption," noting that when "the procedure forecloses the
determinative issues of competence and care, when it explicitly disdains present

15. See infra Parts I.A-E.

16. See infra Parts I.A-E.

17. See infra Parts I.A-E.

1 8. Rebeca Aizpuru, Note, Protecting the UnwedFather 's Opportunity to Parent: A Survey

ofPaternity Registry Statutes, 18 REV. LlTIG. 703, 708 (1999).

19. 405 U.S. 645 (1972).

20. Id at 646.

21. Id.

22. Id.

23. Id. at 647.

24. Id. at 646-47.

25. Mat 647.
26. Id.

27. Id. at 656-57.

28. Mat 658.
29. Id.

30. Mat 651.



502 INDIANA LAW REVIEW [Vol. 43 :499

realities in deference to past formalities, it needlessly risks running roughshod

over the important interests ofboth parent and child."
31

State convenience or the

government's interest in "prompt efficacious procedures"
32
was insufficient to

overcome Peter's "substantial"
33

interest in the custody of his children.
34

B. 1978: Quilloin v. Walcott
35

Randall Walcott wanted to adopt his stepson, a nonmarital child.
36

Randall

had lived with his stepson for seven years.
37 The biological father, Leon Quilloin,

never sought custody or legitimated the child and "had provided support only on

an irregular basis."
38 The child was eleven years old when Randall filed the

adoption petition,
39
and the child expressed his desire for Randall to adopt him.

40

The child also wanted to continue visitation with his biological father after the
adoption.

41 He had visited his biological father "on 'many occasions,'" but the
mother concluded that the visits were having a negative impact on her family,

42

including her younger son.
43

Georgia statutorily provided only the mother ofthe nonmarital child with the

right to veto an adoption, unless the biological father legitimates the child.
44

The
mother, in this case, consented to Randall's adoption of her son.

45
Leon

subsequently filed an objection to the adoption proceeding and a petition for

legitimation.
46

The trial court ruled that the adoption was in the child's best interests.
47

The

court never ruled that Leon was unfit, but it did determine that neither

legitimation nor visitation rights were in the best interests of the child.
48

The

Georgia Supreme Court affirmed the trial court relying on "the strong state policy

of rearing children in a family setting, a policy which . . . might be thwarted if

31. Mat 656-57.
32. Mat 656.
33. Mat 652.
34. See id. at 656-57.

35. 434 U.S. 246(1978).

36. Mat 247.
37. See id.

38. Mat 251.
39. Id. at 249.

40. Mat 251.
41. Mat251n.ll.

42. Id. at 251.

43. Id. at 251 n.10.

44. Id. at 248-49 (citations omitted).

45. Id. at 247.

46. Id. at 249-50.

47. 7a
7
. at 251.

48. Id.



20 1 0] YOU SHALL ALWAYS BE MY CHILD 503

unwed fathers were required to consent to adoptions."
49

The U.S. Supreme Court found that the best interests of the child standard
adequately protected Leon's interests.

50
The adoption would "give full

recognition to a family unit already in existence, a result desired by all concerned,

except [Leon]."
51 The Court ignored the child's desire to have continued

visitation with Leon because the state adoption statute required full termination

of the biological father's rights.
52

Randall and the mother contended that the procedure did not violate Leon's

due process rights because "any constitutionally protected interest appellant might

have had was lost by his failure to petition for legitimation during the [eleven]

years prior to [the] filing of Randall Walcott's adoption petition."
53 The Court

was wary of resting its decision on that assertion because Leon was not aware of

the legitimation process until after Randall filed his adoption petition.
54

The Court also noted that the states could grant an unwed father "less veto
authority" than a married father.

55 The dispositive factor for the Court was the
unwed father's level of "commitment to the welfare of the child."56 Leon had
never taken full responsibility for the daily care of his child,

57
but Randall had

been an active, custodial father for nine years.
58

Quilloin v. Walcott is a landmark case because it is the first time the Court

suggested that "a biological connection alone is insufficient to obtain full,

constitutionally protected, parental rights."
59

This suggestion is troubling because

the Court ignored the conflicting desire of the child to visit his biological father

and the desire of the mother to restrict Leon's access to his child. Leon's

restricted access denied him the opportunity to establish the type of relationship
the Court was willing to protect. It is also unreasonable to compare a stepfather
who has custody of the child by virtue of his marriage to the mother to an
unmarried, noncustodial father who does not reside with the mother. The
unmarried father cannot become part of the existing family unit, and the Court
seemingly punishes him for a situation he cannot realistically rectify.

C 1979: Caban v. Mohammed60

Abdiel Caban and Maria Mohammed never married, cohabited for five years,

49. Id. at 252.

50. Id. at 254.

51. Id. at 255.

52. A/.at251n.ll.

53. Id at 254.

54. Id.

55. Id. at 256.

56. See id.

57. Id.

58. See id. at 247, 251.

59. Kisthardt, supra note 12, at 600

60. 441 U.S. 380(1979).



504 INDIANA LAW REVIEW [Vol. 43 :499

and had two children together.
61

After the couple split, Maria married Kazin

Mohammed. Maria's mother, Delores, took the two children with her to Puerto
Rico, where Maria and Kazin planned to move.

62
Abdiel remained in contact

with the children while they were in Puerto Rico.
63 One year later, Abdiel went

to Puerto Rico to visit the children.
64

The grandmother let him take the children
for a few days, but he returned with them to New York.65 Maria learned that the
children were in Abdiel' s custody, and she enlisted the help of the police to get

the children back.
66

Maria then instituted custody proceedings and the court

granted her temporary custody.
67

Abdiel received visitation rights.
68

Maria and

Kazin filed an adoption proceeding, and Abdiel cross-petitioned for adoption.
69

Under the New York adoption statute, an unwed mother may block the
adoption of her child "simply by withholding [her] consent."

70 To prevent the
termination of his parental rights, an unwed father must establish that the
adoption of his biological child would not be in the best interests of the child.

71

Abdiel alleged that this statutory scheme violated his equal protection and due

process rights.
72

The trial court granted Kazin's adoption petition, terminating Abdiel'

s

parental rights.
73

The appellate court affirmed, and Abdiel appealed to the U.S.
Supreme Court.

74
The Court held that the New York's statute's "distinction . . .

between unmarried mothers and unmarried fathers . . . does not bear a substantial

relation to the State's interest in providing adoptive homes for its illegitimate
children."

75
The Court's holding seemed to be limited to established parent-child

relationships in which the mother and father are similarly situated in the degree

of their relationship with the child.
76

61. Mat 382.
62. Id.

63. Id. at 383.

64. Id.

65. Id.

66. Id.

67. Id.

68. Id.

69. Id.

70. Mat 385-86.
71. Mat 386-87.
72. Id. at 384.

73. Mat 383-84.
74. Mat 384-85.
75. Mat 391.
76. See id. at 389.



20 1 0] YOU SHALL ALWAYS BE MY CHILD 505

D. 1983: Lehr v. Robertson
77

Jessica was born out of wedlock in November 1 976.
78

Her mother married

Richard Robertson eight months after her birth.
79

In December 1978, Jessica's
stepfather filed an adoption petition.

80 One month later, Jessica's biological
father, Jonathon Lehr, filed for a determination of paternity, support order, and

visitation rights.
81

The Robertsons filed for a change of venue, and Lehr first

received notice ofthe pending adoption proceeding when he received the motion
for change of venue.

82

New York law required that certain classes of putative fathers receive notice
of a pending adoption proceeding:

[T]he persons whose names are listed on the putative father registry, . .
. those who have been adjudicated to be the father, those who have been
identified as the father on the child's birth certificate, those who live
openly with the child and the child's mother and who hold themselves
out to be the father, those who have been identified as the father by the
mother in a sworn written statement, and those who were married to the
child's mother before the child was six months old.

83

Lehr did not fit into any of these categories.
84 He lived with Jessica's mother

prior to Jessica's birth and visited her in the hospital after the birth.
85

However,

his name did not appear on her birth certificate, and he never filed with the state
putative father registry.

86 As a result, he never received notice of the adoption
proceeding.

87 Knowing of the pending paternity determination action, the judge
granted the stepfather's adoption petition.

88

Lehr moved to vacate the adoption order. 89 The Ulster County Family Court
denied his motion and found that it did not have to give him notice of the
adoption.

90 The Appellate Division of the Supreme Court held that Lehr's

paternity action did not give him the right to receive notice of the adoption, and
the notice provisions of the New York statute were constitutional.91 The New

77. 463 U.S. 248(1983).

78. Id at 250.

79. Id

80. Id

81. Mat 252.
82. Mat 252-53.
83. Id at 251.

84. Mat 25 1-52.
85. Mat 252.
86. Mat 25 1-52.
87. See id. at 253.

88. Id

89. Id

90. Id

91. Id at 253-54 (citing In re Adoption of Jessica "XX," 434 N.Y.S.2d 772 (App. Div.



506 INDIANA LAW REVIEW [Vol. 43 :499

York Court of Appeals acknowledged that "it might have been prudent to give
notice," but it nevertheless concluded that the trial court had not abused its

discretion by granting the adoption petition without giving Lehr notice.
92

Lehr appealed to the U.S. Supreme Court on due process and equal protection
grounds.

93 The Court emphasized that when a nonmarital father participates in
his child's life and assumes the responsibilities of fatherhood, then the parent-

child relationship "acquires substantial protection under the Due Process
Clause."

94 A biological link alone, the Court recognized, is not enough to acquire
constitutional protection.

95
The Court did not completely disregard the

significance of a biological connection:

The significance of the biological connection is that it offers the natural
father an opportunity that no other male possesses to develop a

relationship with his offspring. Ifhe grasps that opportunity and accepts

some measure of responsibility for the child's future, he may enjoy the
blessings of the parent-child relationship and make uniquely valuable
contributions to the child's development. Ifhe fails to do so, the Federal

Constitution will not automatically compel a state to listen to his opinion

of where the child's best interests lie.
96

The Court suggested that the ideal scenario is for the biological father to assume

parental responsibilities, as opposed to any other man willing to assume the
responsibilities.

The Court rejected Lehr's due process claim because he had not assumed
parental responsibilities,

97
and his right to receive notice was fully within his

control.
98 New York had adequately protected his interest in forming a

relationship with Jessica by allowing him to register as a putative father.
99

The

Court found irrelevant Lehr's possible lack of knowledge of the putative father

registry.
100

The Court also found that the statute satisfied the Equal Protection Clause
because the mother and father were not "similarly situated with regard to their

relationship with the child."
101

Jessica's mother established a full parental

relationship with her child, while Lehr had not.
102

Therefore, New York could

1980)).

92. Id. at 254-55 (citing In re Adoption of Jessica "XX," 430 N.E.2d 896 (N.Y. 1981)).

93. Id. at 255.

94. Mat 261.
95. Id

96. Id. at 262.

97. Id.

98. Id. at 263-64.

99. Id. at 262-64.

100. Id. at 264.

101. Id. at 267.

102. Id.



20 1 0] YOU SHALL ALWAYS BE MY CHILD 507

treat the two parents differently.
103

The different views of the majority and the dissent ofthree Justices illustrate

the divergence of opinions that has developed over the last four decades with

regard to the rights ofunwed fathers. Justice White described the '"nature of the
interest' at stake ... is the interest that a natural parent has in his or her child, one

that has long been recognized and accorded constitutional protection."
104

In this

view, the biological relationship alone creates the liberty interest.
105

The degree

of development in the parent-child relationship relates to the weight of the

interest, not whether the interest is cognizable.
106

Because the State did not

provide the putative father adequate notice, the State deprived Lehr due process

of law, according to Justice White.
107

The dissent also noted that Lehr alleged a different version of the facts.
According to Lehr, the mother concealed her location from him after the child's

birth, and she refused his financial support of the child.
108

The mother also
threatened to have Lehr arrested if he tried to visit his daughter.

109
Justice White

contended that based on the lack of a developed factual record, the Court must

assume that Lehr would have had "the kind of significant relationship that the

majority concedes is entitled to the full panoply of procedural due process

protections" if it were not for the actions of the mother.
110

The majority denied
Lehr full constitutional protection as a result of a situation that was largely out of

his control.

E. 1989: Michael H. v. Gerald D.
in

Victoria was born of an "adulterous affair."
112

Carole, her mother, was

married to Gerald, but Victoria's biological father was Michael.
113

At different

points during the first three years ofVictoria's life, both men held her out as their
child.

114
After Carole's presumably permanent reconciliation with Gerald,

Michael and Victoria, through a guardian ad litem, sued for visitation.
115

Gerald

moved for summary judgment because California state law provided that a
married woman's child was presumptively her husband's, as long as the couple

103. Id. at 267-68.

104. Id. at 270 (White, J., dissenting)

105. Id. at 272.

106. Id.

107. Id. at 276.

108. Id. at 269.

109. Id.

110. Mat 271.
111. 491 U.S. 110(1989).

112. Mat 113.
113. Id. at 113-14.

114. Mat 114-15.
115. Mat 115.



508 INDIANA LAW REVIEW [Vol. 43 :499

was cohabitating, and the husband was not impotent or sterile.
116

The state courts denied relief for Michael and Victoria, and they appealed to
the U.S. Supreme Court.

117 The Court denied Michael's claim ofprocedural and
substantive due process violations.

118
First, the Court found that the presumption

within the state law did not violate procedural due process.
119

Second, Michael

did not have a substantive due process claim because his asserted liberty interest

was not "rooted in history and tradition."
120

According to the majority,

relationships like Michael and Victoria's have not been treated as a "protected

family unit."
121

History has favored the "marital family."
122

The Court rejected Victoria's claims of due process and equal protection
violations. Her due process claim "is the obverse of Michael's and fails for the

same reasons."
123

Victoria contended that her equal protection claim should

receive strict scrutiny because the state statute discriminates against her because

ofher illegitimacy.
124 The Court refused to apply strict scrutiny because Victoria

is not legally illegitimate.
125

Under rational basis review, Victoria's claim failed

because the state interest in enacting the statute was to preserve marital families,
and allowing unwed fathers to interfere would disrupt the family. 126 The Court
found that the statute was rationally related to legitimate governmental interests,

and it therefore denied Victoria's equal protection claim.
127

In dissent, Justice Brennan argued that the plurality should not rely on history

and tradition to determine whether the Constitution protects a liberty interest.
128

The dissent argued that the Constitution should have the ability to adapt to
changing social mores:

We are not an assimilative, homogeneous society, but a facilitative,
pluralistic one, in which we must be willing to abide someone else's
unfamiliar or even repellent practice because the same tolerant impulse

protects our own [idiosyncrasies]. . . . The document that the plurality
construes today is unfamiliar to me. It is not the living charter that I have

taken to be our Constitution; it is instead a stagnant, archaic, hidebound

document steeped in the prejudices and superstitions ofa time long past.

This Constitution does not recognize that times change, does not see that

116. Id,

117. Mat 115-17.
118. Id. at 121, 127.

119. Id. at 121.

120. Mat 123.
121. Id. at 124.

122. Id.

123. Mat 131.
124. Id.

125. Id.

126. Id.

127. Mat 131-32.
128. Id. at 136-41 (Brennan, J., dissenting)



20 1 0] YOU SHALL ALWAYS BE MY CHILD 509

sometimes a practice or rule outlives its foundations.
129

The liberty interest involved in this case is the parent-child relationship.
130

The
Court already recognized that this interest must receive constitutional

protection.
131 The Court previously prevented any state "from denying important

interests or statuses to those whose situations do not fit the government's narrow
view of the family."

132

Justice White's dissenting opinion noted that the State's interest in preventing

illegitimacy was no longer relevant.
133

Blood tests can provide proofofpaternity,

and fathers like Michael are not trying to repudiate fatherly responsibilities.
134

It

is relatively commonplace for children to live apart from their biological father

but continue to maintain a relationship with him.
135

Justice White also noted the disconnect between the plurality's holding and

Lehr v. Robertson.
136

In Lehr, the Court required that an unwed father must
"grasp" the opportunity to develop a relationship with his child to have a

constitutionally protected interest.
137

Michael did exactly that, yet the plurality

refused to recognize his interest in a relationship with his daughter.
138

The result
rendered Michael "a stranger to his child."

139

II. "Deadbeat Dad": The Scarlet Letter140 of the
Modern Unwed Father

"Speak, woman!" said another voice, coldly and sternly, proceeding from
the crowd about the scaffold. "Speak; and give your child a father!"

"I will not speak!" answered Hester, turning pale as death, but

responding to this voice, which she too surely recognized. "And my
child must seek a heavenly Father; she shall never know an earthly
one!"

141

Scholars generally regard Hester Prynne as a courageous heroine, while many

129. Mat 141.
130. Id. at 141-42.

131. Id. (citing Meyer v.Nebraska, 262 U.S. 390,399(1923)).

1 32. Id at 145 (citing Moore v. E. Cleveland, 43 1 U.S. 494 (1977); Gomez v. Perez, 409 U.S.

535 (1973); Glona v. Am. Guarantee & Liab. Ins. Co., 391 U.S. 73 (1968); Levy v. Louisiana, 391
U.S. 68 (1968); Loving v. Virginia, 388 U.S. 1 (1967)).

133. Id. at 161-62 (White, J., dissenting).

134. Id.

135. Mat 162.
136. Id. at 163.

137. Lehr v. Robertson, 463 U.S. 248, 262 (1983).

138. Michael H., 491 U.S. at 163 (White, J., dissenting).

139. Id.

140. See Nathaniel Hawthorne, The Scarlet Letter (Penguin Books 2003) ( 1 850).

141. Id. at 63.



5 1 INDIANA LAW REVIEW [Vol. 43 :499

think of her lover, Dimmesdale, as the weak, egotistical father, who selfishly
refuses to confess his sins and support his child and her mother.

142 He is an
unsympathetic character, and readers generally feel little sorrow upon his death.

143

In modern society, Dimmesdale is the character who would wear the letter of
shame. Rather than a scarlet "A," he would bear the stigmatized label "Deadbeat

Dad."
144 He would likely receive even less sympathy in current American society

than he did in seventeenth-century Puritanical Boston.

Modern society recognizes two types of deadbeat dads. The first category is
the father who does not pay his child support. 145 The second category is the
unwed father who never establishes his paternity. 146 Although fathers who choose
to abandon their families or refuse to support their children likely deserve little

sympathy, many fathers may appear to fit into the definitions of deadbeat dad
without even knowing of the child's birth.

147

Public focus with regard to deadbeat dads has been on stigmatizing those men
and reducing the government's financial burden of caring for the single mothers

and their children.
148

The legislative focus has similarly been on reducing welfare
costs.

149
Chapter 7, Title IV, Part D of the Social Security Act ("Title IV-D")

established a child support enforcement program as part ofwelfare reform.
150

The
goal of Title IV-D is to improve the effectiveness of child support programs, with
paternity determinations as its primary means of accomplishment.

151

The states must comply with the legislative goals of Title IV-D in exchange
for federal funding.

152
In addition to the appropriations provided to states for

Title IV-D enforcement,
153

states also receive "incentive payments" based on the

1 42

.

See, e.g. , NINA BAYM, Introduction to NATHANIEL HAWTHORNE, THE SCARLET LETTER,

at vii, xviii-xx (Penguin Books 2003) (1850).

143. Id. at xx.

144. See William J. Doherty et al., Responsible Fathering: An Overview and Conceptual

Framework, 60 J. MARRIAGE and Fam. 277, 279 (1998) (describing the moral undertone of the

term "deadbeat dad").

1 45

.

See Drew D. Hansen, Note, The American Invention ofChildSupport: Dependency and

Punishment in Early American Child Support Law, 108 YALE L.J. 1 123, 1 123-24 (1999) ("The

villain in the child support reform story is the 'deadbeat dad' who does not pay child support. . .

. Americans today conceptualize child support in terms ofpreventing dependency and in terms of

punishing those who 'cause' dependency.").

146. See Doherty et al., supra note 144, at 279 (noting that "[djeclaring legal paternity is the

sine qua non of responsible fathering").

147. See supra notes 3-4 and accompanying text.

148. See Hansen, supra note 145, at 1 123-24.

149. See id.

150. 42 U.S.C. § 666 (2006).

151. Id. § 65 1 ; see Jayna Morse Cacioppo, Note, Voluntary Acknowledgments ofPaternity:

ShouldBiology Play a Role in Determining Who Can Be a Legal Father?, 3 8 Ind. L. REV. 479, 486

(2005).

1 52. Cacioppo, supra note 1 5 1 , at 486.

153. See 42 U.S.C. § 651 (2006).



20 1 0] YOU SHALL ALWAYS BE MY CHILD 5 1

1

state's performance pursuant to Title IV-D's goals.
154

Specifically, Title IV-D

bases the state's incentive payments on its paternity establishment, support order,

current payment, arrearage payment, and cost-effectiveness performance levels.
155

Under Title IV-D, states must establish "[e]xpedited administrative and

judicial procedures ... for establishing paternity and for establishing, modifying,

and enforcing support obligations."
156

States must also establish procedures for

voluntary paternity acknowledgement.
157 The voluntary paternity

acknowledgement procedures in each state must include a "simple civil process"

in which the mother and father can sign an acknowledgement ofpaternity as long

as they receive notice "of the alternatives to, the legal consequences of, and the

rights . . . and responsibilities that arise from, signing the acknowledgement."
158

The states must also establish a "hospital-based program . . . focusing on the
period immediately before or after the birth of a child."

159

The voluntary acknowledgement of paternity is a "legal finding of
paternity."

160
The signor may only rescind the acknowledgment "within the

earlier of- (I) 60 days; or (II) the date of an administrative or judicial proceeding
relating to the child (including a proceeding to establish a support order) in which

the signatory is a party."
161

After the sixty-day period, the signor may challenge
the acknowledgement only on the basis of "fraud, duress, or material mistake of

fact."
162

Title IV-D therefore provides a non-judicial, cost-effective means to
"receive a final paternity judgment."

163

III. Indiana's Treatment of Unwed Fathers

Indiana has gone further than Title IV-D mandates. In the gap between
Indiana's current procedures and the mandates ofTitle IV-D lurk problems under
the U.S. Constitution. To see the constitutional issues under Indiana law, one
must first understand the procedures used in Indiana.

A. Indiana 's Public Policy

In accordance with Title IV-D, Indiana has a public policy for establishing

paternity of nonmarital children.
164

Indiana law emphasizes identifying the

"correct" father in paternity determinations, which shows the importance of a

154. Id §658a.

155. Id § 658a(b)(4)(A)-(E).

156. Id § 666(a)(2).

157. Id § 666(a)(5)(C).

158. Id § 666(a)(5)(C)(i).

159. Id § 666(a)(5)(C)(ii).

160. Id § 666(a)(5)(D)(ii).

161. Id.

162. Id § 666(a)(5)(D)(iii).

1 63

.

See Cacioppo, supra note 1 5 1 , at 486.

164. See In re Paternity ofE.M.L.G., 863 N.E.2d 867, 869 (Ind. Ct. App. 2007) (quoting IND.

Code §31-14-1-1 (1998)).



5 1

2

INDIANA LAW REVIEW [Vol. 43 :499

biological relationship in Indiana.
165

The Indiana Supreme Court recognized a
"substantial public policy in correctly identifying parents and their offspring."

166

Indiana also "disfavors a support order against a man who is not the child's
father."

167

Indiana's paternity establishment statutory scheme also illustrates the state's

preference for the biological father's assumption of parental obligations.
168

The
statute provides that the mother and "a man who reasonably appears to be the
child's biological father" may execute the paternity affidavit at the hospital. 169

The affidavit also includes a sworn statement by the mother that the man signing
the affidavit is the child's biological father,

170
and the man must declare within

the affidavit that he believes he is the biological father.
171

B. The Result ofExecuting a Paternity Affidavit

A paternity affidavit "conclusively establishes the man as the legal father,"172
making it equivalent to a paternity determination by a court.

173
The mother or the

Title IV-D agency may seek child support from the father based solely on the
affidavit.

174
The affidavit also provides that "there will be no hearing related to

the paternity of the child(ren) included in the affidavit."
175

C. Valid Revocation ofa Paternity Affidavit

The statute strictly limits the revocation of a paternity affidavit.
176

Beyond

165. In re Paternity of S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992).

166. Id; see In re Paternity of Davis, 862 N.E.2d 308, 313 (Ind. Ct. App. 2007) (noting the

"strong public policies in favor of identifying the correct biological father and allocating the child

support obligation to that person").

167. In re Paternity ofS.R.I. , 602 N.E.2d at 1016 (citing Fairrow v. Fairrow, 559 N.E.2d 597

(Ind. 1990)).

168. See Ind. CODE § 16-37-2-2.1 (2008) (requiring mother and putative father to complete

sworn statements within paternity affidavit that the man is the biological father); id. § 31-14-10-1

(requiring "[u]pon finding that a man is the child's biological father, the court shall, in the initial

determination, conduct a hearing to determine the issues ofsupport, custody, and parenting time");

id. §31-14-11-1.1 (providing "[i]n a paternity proceeding, the court shall issue a temporary order

for child support if there is clear and convincing evidence that the man involved in the proceeding

is the child's biological father").

169. Id. § 16-37-2-2. 1(b)(1)(B).

170. Id. § 16-37-2-2.1(e)(l).

171. Id § 16-37-2-2. 1(e)(2).

172. Id § 16-37-2-2.1(m).

173. See id. § 3 1 - 1 4-2- 1 ("A man ' s paternity may only be established: ( 1 ) in an action under

this article; or (2) by executing a paternity affidavit. . . .").

174. Paternity Affidavit, State Form 44780, Ind. State Dep't of Health (on file with author).

175. Id.

176. Ind. Code § 16-37-2-2.1 (h), (i), (k) (2008).



20 1 0] YOU SHALL ALWAYS BE MY CHILD 5 1

3

the importance of finality in judgments,
177

the legislative limitation on revocation

is based on the best interests of the child.
178

The Indiana Supreme Court has
noted the significance of stability and finality in family relationships.

179
The

court tempered the importance of that state objective by noting, "[p]roper

identification of parents and child should prove to be in the best interests of the

child for medical or psychological reasons."
180

A court may revoke an affidavit if the legal father files an action with the
court to request a genetic test within sixty days ofthe date ofthe affidavit, and the

test establishes that he is not the biological father.
181 The revocation may occur

outside of the sixty day period only for "fraud, duress, or material mistake of

fact" in the execution of the affidavit or if a court-ordered genetic test excludes

the legal father as the biological father.
182

Even if the father and mother sign a false paternity affidavit with the mutual
knowledge that the man is not the biological father, the court may not rescind the
affidavit.

183
There is no fraud or mistake in the execution of such paternity

affidavits because both parties were aware that he was not the biological father

at the time of signing.
184

Therefore, no valid statutory reason exists for setting

aside the paternity affidavit outside of the sixty days.
185 The Indiana Court of

Appeals has ruled that filing a petition to disestablish paternity is contrary to

public policy, and the Indiana Code does not provide for such an action.
186

Indiana strives to avoid disestablishment of paternity until paternity has been

established in another man to prevent creating an illegitimate child in the eyes of
the law.

187

Despite the paternity affidavit acknowledging legal paternity, another man

177. Lehr v. Robertson, 463 U.S. 248, 266 (1983).

178. In re Paternity ofH.H., 879 N.E.2d 1175,1178 (Ind. Ct. App. 2008) (refusing to change

the legal status of a father who signed the paternity affidavit with the knowledge that he was not

the biological father because it would not be in the best interests of the child to remove the only

father the child had known).

179. In re Paternity of S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992).

180. Id.

181. Ind. Code § 1 6-37-2-2. 1 (h), (k) (2008).

182. Id. § 16-37-2-2.1®, (k).

183. See In re Paternity ofH.K, 879 N.E.2d at 1 176.

1 84. See id. at 1 1 77-78 (finding no fraudulent execution if both parties knew he was not the

biological father); In re Paternity of R.C., 587 N.E.2d 153, 155 n.2 (Ind. Ct. App. 1992) (defining

extrinsic fraud as the mother's false statement to the father, thereby procuring his signature attesting

that he is the biological father).

185. See Ind. CODE § 16-37-2-2. l(i) (2008).

186. See In re Paternity of H.J.B., 829 N.E.2d 157, 159-60 (Ind. Ct. App. 2005); In re

Paternity ofB.W.M., 826 N.E.2d 706, 708 (Ind. Ct. App. 2005) (expressing strong disapproval of

legal father's petition to vacate his child support order after learning he was not the child's

biological father).

1 87. See In re Paternity ofH.J.B. , 829 N.E.2d at 1 60.



514 INDIANA LAW REVIEW [Vol. 43:499

may file an action to establish his own paternity. 188 For example, imagine Mary
and Pete complete a paternity affidavit in Indiana. Both Mary and Pete know that
Pete is not the biological father when they execute the affidavit. David learns of
the birth of Mary's child, and he believes that he is the biological father. David

may file a paternity action. 189 Establishing that Pete is not the biological father
will not revoke the paternity affidavit unless Pete requests genetic testing for

himself within sixty days of the execution of the affidavit.
190

David will not

become the legal father if Pete does not want to rescind his affidavit. 191 "A
paternity affidavit may not be rescinded unless the court, at the request of the
legal father, has ordered a genetic test, and the court-ordered test indicates that the

man is excluded as the father of the child." 192 Particularly if Pete signed the
affidavit with the knowledge that he was not the biological father, he may be
unwilling to voluntarily give up his legally protected relationship with the child.

As long as Pete wants to continue to be the legal father, David seems to have no
recourse under the current law.

Some courts will find that David is the biological father, but he still is not the
legal father.

193
First, the court will consider whether it is in the best interests of

the child to adjudicate the biological father's existence.
194

The court considers the
child's age, whether the child knows that David is his biological father, and
whether it is in his best interests to visit with David.

195
The court makes this

determination on a case-by-case basis,
196

and the biological father has no

guarantee that the court will recognize his biological connection.

IV. Problems with Indiana's Current Statutory Framework

Indiana denies many unwed fathers their right to due process. The current

188. See In re Paternity ofN.R.R.I., 846 N.E.2d 1094, 1097 (Ind. Ct. App. 2006).

189. Ind. Code § 31-14-4-1 (2008).

190. Id. § 16-37-2-2.1 (Subsection (k) provides, "The court may not set aside the paternity

affidavit unless a genetic test ordered under subsection (h) or (i) excludes the person who executed

the paternity affidavit as the child's biological father." Subsection (h) only allows rescission ifthe

male signor requests a genetic test within sixty days ofthe signing ofthe affidavit. Subsection (i)

permits rescission ofthe affidavit past sixty days for "fraud, duress, or material mistake of fact" and

if the male signor requested a genetic test, and the results indicate that he is not the biological

father.). But see N.R.R.I., 846 N.E.2d at 1097 n.3 (suggesting that if genetic tests prove another

man is the biological father and exclude the legal father as the biological father, then the court may

set aside the paternity affidavit).

191. See Ind. Code § 16-37-2-2.1 (2008).

192. In re Paternity of M.M., 889 N.E.2d 846, 849 (Ind. Ct. App. 2008).

1 93

.

Interview with Master Comm'r Alicia Gooden, Presiding Judicial Officer over Paternity

Div. of Marion Circuit Court, in Indianapolis, Ind. (Feb. 6, 2009).

194. Id.

195. Id.

196. Id.



20 1 0] YOU SHALL ALWAYS BE MY CHILD 5 1

5

procedure for paternity determination has a high risk of error,
197

and the interests

at stake for the father outweigh the government's interests. The Due Process
Clause of the Fourteenth Amendment

198
requires more accurate procedures.

199

Biological fathers also do not receive notice that another man is assuming legal
paternity of their biological child.

Indiana's current paternity system also violates the biological father's

substantive due process rights by allowing state interference with the

development of the constitutional right to parent. The current procedures

interfere with the biological father's ability to establish a relationship with his

child, and according to U.S. Supreme Court precedent, Indiana may deny the
biological father's interest in his child for failure to establish a relationship with

his child.
200

A. Procedural Due Process

Procedural due process requires at a minimum "the opportunity to be heard
'at a meaningful time and in a meaningful manner.'"

201 When determining
whether a state's procedures violate a person's right to due process, the courts

must consider whether the Fourteenth Amendment protects the interests at
stake.

202
If the Fourteenth Amendment protects the interests, then the court must

consider what procedures will satisfy due process.
203

Additionally, ifthe outcome

of a proceeding is to be final, due process requires "notice reasonably calculated,

under all the circumstances, to apprise interested parties of the pendency of the

action and afford them an opportunity to present their objections."
204

1. Procedural Requirements.—The U.S. Supreme Court in Mathews v.
Eldridge laid out three factors to determine "the specific dictates of due

process":
205

First, the private interest that will be affected by the official action;

second, the risk of an erroneous deprivation of such interest through the

procedures used, and the probable value, if any, of additional or

substitute procedural safeguards; and finally, the Government's interest,

197. See supra Part III.C.

198. U.S. Const, amend. XIV, § 1.

199. See Mathews v. Eldridge, 424 U.S. 319, 336-40 (1976) (discussing the complex

administrative procedures for discontinuing Social Security payments and finding them

inadequate).

200. Lehr v. Robertson, 463 U.S. 248, 262 (1983).

201. Mathews, 424 U.S. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

202. Ingraham v. Wright, 430 U.S. 651, 672 (1977).

203. Id.

204. Armstrong v. Manzo, 380 U.S. 545, 550 (1965); see Lehr, 463 U.S. at 273 (White, J.,

dissenting) (noting that "the right to be heard is one ofthe fundamentals ofthat right [due process],

which 'has little reality or worth unless one . . . can choose for himselfwhether to appear or default,

acquiesce or contest'" (quoting Schroeder v. City ofNew York, 371 U.S. 208, 212 (1962))).
205. Mathews, 424 U.S. at 335.



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INDIANA LAW REVIEW [Vol. 43 :499

including the function involved and the fiscal and administrative burdens

that the additional or substitute procedural requirement would entail.
206

First, a putative father has both liberty and property interests at stake in a

paternity determination.
207

Indiana courts have indicated that public policy is in

favor ofallocating child support obligations to the biological father.
208

The signor
of a paternity affidavit has an interest in ensuring that he is the biological father

prior to paying the child support that is likely to result from a paternity

adjudication. Even if the mother chooses not to pursue child support
obligations,

209
if a man is the legal father, it may affect his obligation to pay

birthing expenses,
210

to provide health coverage,
211

and the intestate distribution

of his property upon his death.
212

The putative father also has an interest in the
parent-child relationship that will result.

213

Second, Indiana's current paternity procedures pose a high risk of"erroneous

deprivation"
214

of the father's interests. If a man, believing he is the biological

father, completes the paternity affidavit at the hospital, and genetic tests later

prove a different man is the biological father, the court may set the affidavit aside
for fraud or mistake of fact.

215
The court, however, can never remedy the man's

loss ofproperty in child support payments and the emotional toll on the child and

father.
216

With neither genetic testing nor any evidence beyond the parties'

statements of the signor' s biological relation required, the risk of erroneous

deprivation is extremely high.

Due process also requires that any additional procedural safeguards justify

206. Id.

207. See Rivera v. Minnich, 483 U.S. 574, 583-84 (1987) (Brennan, J., dissenting).

208. See In re Paternity of Davis, 862 N.E.2d 308, 313-14 (Ind. Ct. App. 2007) (quoting In

re S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992)).

209. See Ind. Code § 1 6-37-2-2. 1 (g)(2)(A) (2008) (indicating that the execution ofa paternity

affidavit gives the mother the right—not the obligation—to pursue a child support order).
210. See In re Paternity of A.R.S.A., 876 N.E.2d 1161, 1164-65 (Ind. Ct. App. 2007)

(requiring unmarried legal father to reimburse Medicaid for one-half of mother's birthing

expenses).

211. Ind. Code § 16-37-2-2. 1(g)(2)(A) (2008).

212. See id. § 29-l-2-7(b)(5) (2004) (providing that a court shall treat a nonmarital child for

purposes of intestate inheritance as if the father had married the mother if the father executes a

paternity affidavit); id. § 29- 1-2- 1(d)(1) (establishing the intestate share for children of the

intestate).

213. See Troxel v. Granville, 530 U.S. 57, 65 (2000) ("[T]he interest of parents in the care,

custody, and control of their children—is perhaps the oldest of the fundamental liberty interests
recognized by this Court.").

214. See Mathews v. Eldridge, 424 U.S. 319,335(1976).

215. See, e.g., In re Paternity ofR.C., 587 N.E.2d 153, 157 (Ind. Ct. App. 1992) (overturning

paternity judgment because of fraud in the context of an adjudication of paternity).

216. IND. CODE § 16-37-2-2. l(i) (2008); see In re Paternity of R.C., 587 N.E.2d 157

(overturning a paternity judgment because of fraud by the mother).



20 1 0] YOU SHALL ALWAYS BE MY CHILD 5 1

7

the cost.
217

States must follow the mandates of Title IV-D, or the state will lose

federal funding.
218

The state must provide for non-judicial, "expedited"219

procedures to establish paternity, including a hospital-based program "focusing

on the period immediately before or after the birth of the child."
220

Despite the

security mandatory genetic testing would provide, the Office of Child Support

Enforcement declared that states must allow for voluntary acknowledgements of

paternity to establish paternity without any further proceedings.
221

States cannot

require mandatory genetic testing under Title IV-D. Consequently, the state may
not discontinue the expedited procedures completely or require mandatory

genetic testing. Indiana must balance the need to protect the putative father's

right to due process against the need to receive federal funding.

The third Mathews factor is the "the Government's interest, including the
function involved and the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail."
222

The state's interest in
"efficacious procedures to achieve legitimate state ends" is a recognizable state

interest.
223

However, the Supreme Court has recognized "higher values than

speed and efficiency."
224

In Stanley v. Illinois, the Supreme Court noted: "[T]he

Bill of Rights in general, and the Due Process Clause in particular, . . . were
designed to protect the fragile values of a vulnerable citizenry from the

overbearing concern for efficiency and efficacy . . . ."
225

The procedures used to
establish paternity in a hospital reflect the need for constitutional protection from

the "overbearing concern for efficiency and efficacy."
226

The days and hours
following the birth of a child are likely to be stressful and emotional. The state's
process for immediate paternity acknowledgement in order to allow child support

payments to flow as swiftly as possible seems to be the precise type of

governmental action the Due Process Clause protects against. Despite the state's
need to increase child support payments, due process concerns require a more

balanced and thoughtful procedure to ensure all parties' rights are protected.

A marriage certificate or a paternity affidavit should not trump a genome.
The law should not underplay the importance of a biological connection. The
Supreme Court has recognized the significance of a biological link and an

established relationship.
227

This connection is one ofthe most unique of a child's

life. No piece of paper should outweigh the magnitude of this connection.
Indiana law should allow the biological father and the child the opportunity to

217. See Ingraham v. Wright, 430 U.S. 651, 680 (1977).

218. Cacioppo, supra note 1 5 1 , at 48 1

.

219. 42 U.S.C. § 666(a)(2) (2006).

220. Id. § 666(a)(5)(C)(ii).

22 1

.

See Cacioppo, supra note 1 5 1 , at 503-04 & n. 1 52.
222. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

223. Stanley v. Illinois, 405 U.S. 645, 656 (1972).

224. Id.

225. Id

226. See id.

227. Lehr v. Robertson, 463 U.S. 248, 262 (1983).



5 1

8

INDIANA LAW REVIEW [Vol. 43 :499

develop a relationship before labeling him deadbeat and unfit.
228 Due process

demands that the biological father receives the opportunity to be heard before
depriving him of his child.

229 A later paternity suit, after another man is the
legally established father, that has minimal hope of giving the biological father

a legally recognized position in the child's life will not satisfy the deprivations

of the current law. The Fourteenth Amendment demands more.230

2. Notice.—One ofthe fundamental requirements ofdue process is notice.231
Title IV-D requires that the state procedures for administration of voluntary
acknowledgement of paternity must include notice to the mother and putative

father "orally, or through the use of video or audio equipment, and in writing, of

the alternatives to, the legal consequences of, and the rights . . . and

responsibilities that arise from, signing the acknowledgment."
232

Indiana's

paternity affidavit statute requires hospital personnel to "verbally explain ... the

legal effects of an executed paternity affidavit,"
233

namely, that executing the

paternity affidavit "establishes paternity"
234

and "gives rise to parental rights and

responsibilities," including possible child support obligation.
235

The form does
not disclose the sixty day deadline to request genetic testing.

236
The form also

does not disclose any of the alternatives to signing this document, such as going

to the health department
237

after a genetic test establishes his biological paternity

or filing an action to establish paternity under Indiana Code section 3 1-14-4-1

,

238

Hospital personnel will generally inform the signor that the document is a
legal document that is legally enforceable and may give rise to child support
obligations.

239
The hospital personnel will not place his name on the birth

certificate without an executed paternity affidavit,
240

and most fathers present at

228. This Note does not suggest that women must disclose all of their sexual partners to

prevent a father from not knowing about the child. This Note suggests that the father should

receive more opportunity to come forward if he learns of the birth before the state severs the

biological relationship. See infra notes 279-328 and accompanying text.

229. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (describing the hearing requirement

in the context of deprivation of a property interest).

230. See U.S. CONST, amend. XIV, § 1; Mathews, 424 U.S. at 333.

231. See Armstrong v. Manzo, 380 U.S. 545, 550 (1965).

232. 42 U.S.C. § 666(a)(5)(C)(i) (2006).

233. Ind. CODE § 16-37-2-2.1(b)(2) (2008).

234. Id. § 16-37-2-2.1(g)(l).

235. Id. § 16-37-2-2. 1(g)(2)(A).

236. Paternity Affidavit, State Form 44780, Ind. State Dep't ofHealth, (on file with author).

237. Id; see Ind. Code § 16-37-2-2. 1(a)(2) (2008).

238. Ind. Code § 31-14-4-1 (2008) (providing procedure to file a judicial paternity action).

239. Telephone Interview with Becky Stull, Birth Registrar, Postpartum Dep't, Home

Hospital, in Lafayette, Ind. (Nov. 1 9, 2008); Telephone Interview with Betty Judd, Birth Registrar,

Dep't of Newborn Records, Clarian Health Partners: Methodist Campus, in Indianapolis, Ind.

(Nov. 19,2008).

240. 42 U.S.C. § 666(a)(5)(D)(i) (2006).



20 1 0] YOU SHALL ALWAYS BE MY CHILD 5 1

9

birth will choose to complete an affidavit.
241 As a result, the father is completing

a legally binding document in the hospital within seventy-two hours of the birth

of the child without full disclosure of his rights.
242

Current Indiana law requires a more complete disclosure of rights to waive
a spousal elective share under a will

243
or to borrow money from a bank244 than

to assume full, complete parental obligations.
245

In In re Paternity ofE.M.L. G. ,
246

the Indiana Court of Appeals held that not knowing the legal effects of the
paternity affidavit is not a valid reason to revoke the affidavits.

247
Additionally,

a court will not revoke a paternity affidavit for failure of the hospital to provide

the statutorily dictated verbal explanation ofthe legal effects ofthe document.
248

Despite the fact that Title IV-D, Indiana Code section 16-37-2-2. 1(b)(2), and the
Fourteenth Amendment require explanation of the legal effects of a document
prior to signing it, Indiana courts will not set aside a paternity affidavit for the

failure to explain the legal ramifications
249

or for the signor's lack of

understanding of the effects.
250

Indiana courts have justified upholding paternity affidavits when the signor
knew he was not the biological father because the signor has voluntarily assumed
the obligations of financial and emotional support for the nonmarital children.

251

Given Title IV-D's goal of reducing welfare costs and Indiana's strong policy of

establishing paternity for nonmarital children,
252

the State is logically eager to

allow any man to assume paternity. However, the State should not codify
procedures that encourage people to assume lifelong obligations without full

disclosure of the ramifications of the document he is signing. Even if the signor
knows generally what it means to become a parent, he may assume that if he is

24 1

.

Telephone Interview with Becky Stull, supra note 239.

242. Ind. Code § 16-37-2-2. 1(c)(1) (2008).

243. See Taylor v. Taylor, 643 N.E.2d 893, 897 (Ind. 1994) ("The right of election of a

surviving spouse given under [Indiana Code section 29-1-3-1 (Burns 1989)] . . . may be waived .

. . after full disclosure of the nature and extent of such right . . . .") (citing Ind. Code § 29-1-3-7

(Burns 1989)).

244. See 15 U.S.C. § 1601(a) (2006) (requiring the "meaningful disclosure of credit terms");

Ind. Code § 24-4.5-2-301 (2007) (adopting the requirements of the Federal Consumer Credit

Protection Act, 15 U.S.C. § 1601-1693r).

245. See Rivera v. Minnich, 483 U.S. 574, 583-84 (1987) (Brennan, J., dissenting) ("What is

at stake for a defendant in such a [paternity] proceeding ... is the imposition of a lifelong

relationship with significant financial, legal, and moral dimensions. ... A paternity determination
therefore establishes a legal duty whose assumption exposes the father to the potential loss ofboth

property and liberty.").

246. 863 N.E.2d 867 (Ind. Ct. App. 2007).

247. Id at 869.

248. In re Paternity of M.M., 889 N.E.2d 846, 849 n.l (Ind. Ct. App. 2008).

249. Id.

250. See In re Paternity ofE.M.L.G., 863 N.E.2d at 869.

251. See In re Paternity of H.H., 879 N.E.2d 1175, 1177-78 (Ind. Ct. App. 2008).

252. See In re Paternity ofE.M.L.G., 863 N.E.2d at 869.



520 INDIANA LAW REVIEW [Vol. 43 :499

not the biological father, the affidavit is no longer valid. He may also assume that
if he and the mother end their relationship, his child support obligations would

end if he is not a biological parent.

B. Substantive Due Process

The Due Process Clause of the Fourteenth Amendment "includes a
substantive component that 'provides heightened protection against government

interference with certain fundamental rights and liberty interests."'
253

The interest

at stake in paternity determinations is a father's right "to 'the companionship,

care, custody, and management of his . . . children.'"
254

This interest comes

within the purview of the Fourteenth Amendment's protection.
255

However, a

biological relationship alone will generally not rise to the level of a fundamental

liberty interest protected by the Fourteenth Amendment.
256

Courts give some
weight to the biological relationship between a father and child, but biology alone

is not enough.
257

The father must have acted to create a relationship with his
child.

258
The courts have sought to protect the familial relationship that develops

between parent and child.
259

Until the biological father substantively enters the

child's life as a parental figure and establishes a relationship with the child, he has

no constitutionally protected interests in that child.
260

The impermissible infringement on the biological father's right to parent

occurs when the state prevents the father from establishing a parental relationship
that a court will recognize. If any man may voluntarily assume the obligations
of fatherhood within hours of a child's birth at the hospital, then a biological

father may lose the prospect ofa relationship with his biological child because the
mother chose not to tell him that she was pregnant. He cannot reasonably act on
something he did not know existed.

The mother may also act as a gatekeeper261 by restricting the father's access
to the child.

262
Like the father in Quilloin v. Walcott, the law will deprive this

253. Troxel v. Granville, 530 U.S. 57, 65 (2000) (quoting Washington v. Glucksberg, 52 1 U.S.

702,720(1997)).

254. M.L.B.v.S.L.J.,519U.S. 102, 118 (1996) (quoting Lassiter v. Dep'tofSoc.Servs., 452

U.S. 18,27(1981)).

255. See id. at 1 19; Santosky v. Kramer, 455 U.S. 745, 753 (1982).

256. Lehr, 463 U.S. at 259-61.

257. Mat 262.
258. Id.

259. See id.

260. Mat 261.
261. Lawrence M. Berger et al. , Parenting Practice ofResident Fathers: The Role ofMarital

and Biological Ties, 70 J. MARRIAGE & Fam. 625, 627 (2008) (defining maternal gatekeeping as
"regulation of fathers' access to and time with children").

262. See Natasha J. Cabrera et al., Why Should We Encourage Unmarried Fathers to Be

Prenatally Involved?, 70 J. MARRIAGE & FAM. 1 1 18, 1 120 (2008) ("[M]other's gatekeeping may
help to alienate the father from her and the child and reduce his level of involvement over time.");



20 1 0] YOU SHALL ALWAYS BE MY CHILD 52

1

biological father of his interest in his child because he failed to establish a

relationship with the child,
263

but the mother may have been a significant factor
in his inability to assume the parental role.

264
The only reason for his loss of

constitutional protection is the fact that the mother and father were no longer

intimately involved, a situation that is now commonplace.265

The Indiana Court of Appeals justified the interference with the biological

father's rights using the best interests of the child standard:

In short, the decisions ofthis state reveal the "best interests" standard has

not been employed to make vague moral judgments about alternative
lifestyles and parental fitness. Instead, the process of effecting that

which is "in the best interests of the child" has in fact been an effort by

our courts to preserve, and in some instances create, an environment

conducive to the mental and physical development of the child—an

environment which, to the extent possible, meets the "need ofevery child

for unbroken continuity ofaffectionate and stimulating relationships with

an adult." As such, the "best interests" test without question forwards a
compelling state interest which justifies the resultant interference with

the rights of the biological parents.
266

Using the best interests of the child standard to deny the father the opportunity

to develop a relationship is in fact making the "vague moral judgments about

alternative lifestyles and parental fitness" that the Indiana Court of Appeals

denied applying.
267

If the mother and father are married at the time ofbirth, even

if the father is living apart from the mother and has done nothing to contribute to

the pregnancy, he is the presumed father under the law.
268

If the parents are

unmarried, then the father must take proactive steps to establish a parental

relationship.
269

The law is making moral judgments about the ideal family

Rebecca M. Ryan et al., Longitudinal Patterns ofNonresident Fathers ' Involvement: The Role of

Resources andRelations, 70 J. MARRIAGE&Fam. 962, 965 (2008) ("[S]ome mothers insists fathers
pay formal or informal child support to gain access to the child, suggesting either that fathers'

motivation to remain involved may drive financial investment or simply that fathers' ability and

willingness to pay child support may determine his ability to be involved." (citation omitted)).

263. See Quilloin v. Walcott, 434 U.S. 246, 254 (1978).

264. See Interview with Master Comm'r Alicia Gooden, supra note 193 (noting that the

mother is often the reason why everyone is in "this mess").

265. Berger et al., supra note 26 1 , at 625 (noting a 2005 study found that about thirty-seven

percent ofbirths were to unmarried women, and "few unmarried parents will marry each other after

their baby's birth").

266. In re Joseph, 416 N.E.2d 857, 861 (Ind. Ct. App. 1981) (quoting J. GOLDSTEIN ET AL.,

Beyond the Best Interests of the Child 6 (1973)).

267. Id.

268. See Ind. Code § 31-14-7-1 (2008); see also Michael H. v. Gerald D., 491 U.S. 110, 115

(1989).

269. Lehr v. Robertson, 463 U.S. 248, 261-62 (1983).



522 INDIANA LAW REVIEW [Vol. 43 :499

structure and is punishing those who do not fit. 270 People cannot have the liberty
secured to them by the Fourteenth Amendment if the courts interpret the
Constitution based on its view of the ideal family.

271

A state may only interfere with a fundamental right if it is advancing a
compelling state interest.

272 Few would deny that the state has a compelling
interest in protecting children. If the father were abusing or neglecting his

children, then the state would have a compelling interest in removing the children

from the father's custody.
273

In most cases where the unmarried father loses his

right to his children, the state has not shown that it is in the best interests of the
child to terminate his rights.

274
The state assumes the father is unfit and deprives

him of his children. In Quilloin v. Walcott, the U.S. Supreme Court found that
state interference with a "natural family" without a showing of unfitness would

violate the Due Process Clause.275 Modern society no longer has a prototypical
natural family model.

276
Continuing to use the justification that the biological

father is not a part ofthe "protected family unit"
277

is a blatant refusal to consider

social reality, and it is certainly not a sufficiently compelling state interest to

justify denying a father the right to parent or to even know his child.278

V. Proposed Solutions

Indiana must do more to protect father's rights. Indiana should balance the

interests of everyone involved while staying within the mandates of Title IV-D.

Due to the potentially harsh outcome that can result if another man voluntarily
signs a paternity affidavit for a child that is not biologically his own, Indiana must

270. See generally Carl E. Schneider, The Channelling Function in Family Law, 20 HOFSTRA

L. Rev. 495, 496 (1992) (describing how the law "promotes social institutions" such as marriage

and parenthood).

271. See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (finding a statute prohibiting

interracial marriage unconstitutional).

272. In re Joseph, 416 N.E.2d at 859.

273. Id. at 860.

274. His rights are terminated by another man's execution of the paternity affidavit or by his

failure to learn of the pregnancy. See infra Parts III.B-C.

275. Quilloin v. Walcott, 434 U.S. 246, 255 (1978).

276. See Linda L. Berger, How Embedded Knowledge Structures Affect Judicial Decision
Marking: A Rhetorical Analysis of Metaphor, Narrative, and Imagination in Child Custody

Disputes, 18 S. Cal. Interdisc. L.J. 259, 259 (2009) (describing the "radically changing

conceptions of family and ofthe relationships possible between children and parents").

277. Michael H. v. Gerald D., 491 U.S. 1 10, 124 (1989).

278. See id. at 156-57 (Brennan, J., dissenting) (noting the majority's opinion is surrounded

by an atmosphere of "make-believe" and does not reflect social reality); Berger, supra note 276,

at 259 ("Though family structure is undergoing 'a sea-change,' family law remains tethered to

culturally embedded stories and symbols. While so bound, family law will fail to serve individual

families and a society whose family structures diverge sharply by education, race, class, and

income." (quoting William Shakespeare, The Tempest act 1, sc. 2 (1623)).



20 1 0] YOU SHALL ALWAYS BE MY CHILD 523

put in place increased procedural safeguards to ensure the biological father has

the opportunity to assume the rights if he should choose to do so. Emphasizing

genetic testing prior to execution of a paternity affidavit, ensuring proper notice

prior to signing, providing for dual fatherhood, and creating an enhanced putative

father registry will help Indiana continue to hold men financially responsible for
their children while allowing every member ofthe modern family's constitutional
rights to survive.

A. Greater Emphasis on Genetic Testing in the Hospital and
Increased Notice Prior to Signing

Indiana's paternity statutes have established the state's preference for

biological fathers to assume the responsibilities of their nonmarital children.
279

The U.S. Supreme Court has also suggested that the ideal situation for a

nonmarital child is for her biological father to have an emotional relationship with

her.
280

Indiana should make every effort to ensure that only the biological father
signs the paternity affidavit.

Using modern technology, a father can definitively determine whether he is

a child's biological father.
281

Mandatory genetic testing at birth would virtually
eliminate later paternity suits and the threat of future paternity

disestablishment.
282

However, Congress chose not to require mandatory genetic

testing under Title IY-D to keep the paternity acknowledgement process simple,
and states cannot require mandatory genetic testing under Title IV-D.

283

Nevertheless, hospital personnel can strongly encourage genetic testing prior to

signing the paternity affidavit without compromising the goals of Title IV-D.
284

Many fathers may feel reluctant to question their paternity in the hospital
room with the new baby and its mother present. These fathers may feel that the
mother and hospital personnel will assume that they are trying to shirk their

responsibility if they request genetic testing.
285

Talking confidentially to the

father outside of the hospital room and informing him of the advantages of
genetic testing may ease some of his discomfort.

279. See supra notes 168-71 and accompanying text.

280. See supra note 96 and accompanying text.

28 1

.

See Paternity Test, http://www.dnacenter.com/paternity/legal-testing.html (guaranteeing

99.99% probability ofpaternity for inclusions and 1 00% probability ofexclusion) (last visited Mar.

1,2009).

282. See Cacioppo, supra note 1 5 1 , at 503.

283. See id. at 503-05.

284. See id. at 488 & n.58 (noting that the Office of Child Support Enforcement "strongly
recommended" including "[a]n advisory to parents that they may wish to seek legal counsel or

obtain a genetic test before signing").

285. See Rivera v. Minnich, 483 U.S. 574, 585 (1987) (Brennan, J., dissenting) (emphasizing

that "the losing defendant in a paternity suit is subject to characterization by others as a father who

sought to shirk responsibility for his actions"). Though a paternity suit and the execution of a

paternity affidavit are procedurally distinct, the concerns for the father are similar.



524 INDIANA LAW REVIEW [Vol. 43 :499

Fathers currently receive minimal notice ofthe effect ofsigning the affidavit,

beyond the fact that it is a legal document.
286

The affidavit itselfdoes not disclose
the sixty-day window for requesting a genetic test. 287 The key to rectifying the
current procedure is to require full disclosure, promote consultation with an

attorney prior to signing, and encourage genetic testing.

Prior to signing the paternity affidavit, the father must either request genetic

testing or sign that he is waiving genetic testing prior to executing the affidavit.

Such a procedure would not require genetic testing in contravention of federal

requirements,
288

but would notify the father that genetic testing is available and

recommended. The affidavit and the hospital personnel or attorney must notify
the father ofhis right to request genetic testing within sixty days and the resulting

waiver of that right outside of the sixty day period. Hospital personnel or an

attorney must make the detailed effects of the document clear to him at the time
of signing. Without full disclosure, his consent is not truly informed. The law
should not bind a man for two decades based on a one page document that does
not fully explain the ramifications of signing it.

B. Recognition ofDual Fatherhood

The idea of one mother and one father is a remnant of the past.
289

The

modern family has evolved into numerous varieties.
290

The modern reality is

"[0]nly one-quarter of American households fit the marital family ideal of

married parents with children."
291 Many children have had some kind of "social

parent"
292

prior to reaching the age of majority.
293

The state should consequently
recognize dual fatherhood in certain situations. Dual fatherhood might appear

unworkable and unduly complicated. However, social reality reflects that modern

families are complicated, and the law should strive to reflect modern reality.
294

286. See supra notes 23 1 -42 and accompanying text.

287. See supra note 236 and accompanying text.

288. See supra notes 2 1 7-22 and accompanying text.

289. See Berger et al., supra note 261, at 625-26 (discussing the changing "family

demography" within the last fifty years).

290. See Troxel v. Granville, 530 U.S. 57, 63-64 (2000) (noting the difficulty in describing

the "average American family").

29 1

.

Berger, supra note 276, at 28 1

.

292. See Berger et al., supra, note 261, at 625-26 (defining a social parent as "a married or

cohabitating partner of a child's biological parent (usually mother) to whom the child is not
biologically related").

293. Id. at 625 ("[Estimates from the mid-1990s show that approximately one third of

children in the United States will spend time living with a social parent during childhood[.]"). This

figure is likely higher now due to the increased nonmarital birth rate and divorce rate. See supra

note 7 and accompanying text.

294. See Kisthardt, supra note 1 2, at 599-600 (noting in the context ofa step-parent adoption,

"The law's refusal to afford parental-type rights to more than one 'father' sets up a situation in

which 'rights' may be vindicated, but 'interests' are not necessarily accommodated and



20 1 0] YOU SHALL ALWAYS BE MY CHILD 525

Indiana already recognizes a form of dual paternity in some situations. In

Schaffer v. Schaffer,
295

the Indiana Court of Appeals allowed visitation by the

stepfather who was the named father on the birth certificate.296 The mother and
stepfather divorced, and the stepfather received visitation rights.

297 One year
later, the biological father also received visitation rights and a child support

order.
298 The appellate court allowed the visitation rights of both fathers, neither

of whom were currently in a romantic relationship with the mother.299

Dual fatherhood is in the best interests of the child and the state. The child
in Quilloin v. Walcott wanted his stepfather to adopt him, but he also wanted

visitation with his biological father.
300

Dual paternity would have resolved this

issue and protected the interests of both fathers and the child. The only danger
is the conflict that may arise over child support obligations and visitation rights.
Proper planning and a clear statement of each parent's rights will resolve any

ambiguity as to parental rights.

Under a dual paternity scheme, the law would recognize a primary and a
secondary father.

301
The primary father would be the dominant paternal figure in

the child's life. The biological father should be the primary father if he asserts
his rights early. Allowing the biological father to be the primary father reflects

Indiana's preference for the biological father to establish his paternity.
302

It also

conforms to the Supreme Court's holding in Lehr v. Robertson, whereby the

biological father has a constitutionally recognized interest in his child only if he

develops a relationship with the child.
303

If the biological father has a genetic test performed at the hospital that

establishes his paternity, and he signs the paternity affidavit, then he is

unquestionably the primary father. If the father waives a genetic test at the

hospital, the paternity affidavit should stipulate that he will be the primary father

only if the biological father does not come forward within six months of the
execution of the paternity affidavit. If the biological father comes forward after

six months, then the biological father will be the secondary father. The legal
father would remain the primary father despite his lack ofbiological connection.

In this scenario, the best interests of the child demand recognition of the
established social relationship over biology.

Regardless of when the biological father comes forward, he should have a
cognizable legal interest in a relationship with the child, unless it is clearly not in

relationships are not fostered.").

295. 884 N.E.2d 423 (Ind. Ct. App. 2008).

296. Mat 424-25.
297. Mat 424.
298. Mat 425.
299. Mat 425, 429.
300. Quilloin v. Walcott, 434 U.S. 246, 251 n.l 1 (1978).

30 1

.

This discussion presumes the mother has physical custody ofthe child. The legislature

would need to address the parental rights if the primary father had physical custody of the child.

302. In re S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992).

303. Lehr v. Robertson, 463 U.S. 248, 262 (1983).



526 INDIANA LAW REVIEW [Vol. 43 :499

the child's best interest to grant visitation. The determination of whether it is in
the best interests for the child to have a legal relationship with the biological

father must involve similar considerations as any parental rights termination

proceeding.
304

The biological father will therefore always have a protected
interest in the child at any time, unless he is abusive or neglectful.

305
His failure

to come forward immediately after the birth will not result in a blanket denial of
a relationship with the child.

For dual paternity to work effectively, the court must carefully assign the
rights of each parent involved, particularly in regard to child support, parenting

time, and decision-making regarding the child's life. The proposed scheme is
only one possible breakdown.

306

7. Child Support.—If there is no secondary father, the primary father would
pay one hundred percent of the child support. If there are two legal fathers, the

primary father would pay seventy-five percent of the child support obligation.
307

A non-residential secondary father would pay the remaining twenty-five percent.
If the secondary father resides with the mother, then his gross income would

factor into the mother's gross income for purposes of Indiana's child support

guidelines rather than forcing him to pay a given amount to the mother every
week.

308
The state should base child support payments on the percentage of the

total parental bundle that the father receives, including the right to make decisions
regarding his child's life. If the father has joint custody and is an equal decision-

maker regarding his child, he should pay more child support than a secondary

father who receives only visitation.
2. Parenting Time.—The primary father should receive more parenting time

with the child than a non-residential secondary father. If the secondary father

resides with the mother, then he will not receive any rights to parenting time

beyond what the mother receives. Ifthe secondary father does not reside with the

mother, then he will only get a portion ofwhat the mother receives. The primary
father would have parenting time on every other weekend and for six weeks

during the summer.
309

The mother would therefore have custody for the

remaining time. A non-residential secondary father, presumably a legal father

304. See Bester v. Lake County Office of Family & Children, 839 N.E.2d 143, 147-48 (Ind.
2005) (describing the requisite showing prior to termination of parental rights).

305. See id.

306. This Note does not address all possible legal issues that may arise with two legal fathers,

such as intestate distribution and wrongful death actions. State statutes can easily resolve these

issues. The purpose of this section is to illustrate that dual paternity is a workable solution to a

complicated problem.

307. This Note refers to child support as court-mandated child support. This Note presumes

that child-related expenditures by the mother are voluntary and therefore do not come into the

equation.

308. Ind. Child Support Guidelines, Ind. R. of Ct. 1-6, available at http://www.in.gov/

judiciary/rules/childsupport.

309. The state could adjust this if the primary father and mother do not live close to one

another. The alternative could be one weekend a month and eight weeks in the summer.



20 1 0] YOU SHALL ALWAYS BE MY CHILD 527

who is now divorced from the mother, would get one weekend a month and three
weeks during the summer. The secondary father's share must not decrease the
primary father's share.

3. Decisionmaking.—The mother and the primary father make all decisions
regarding the child's welfare, including religion, education, and health decisions.

The secondary father would not get a vote.

This scenario is more equitable than the current law. Under Indiana's current

paternity system, a biological father will never be a legally recognized father

unless he both knows about the pregnancy and knows how to exert his rights. 310

If another man executes a paternity affidavit without a genetic test, the biological
father has no rights unless the now legal father decides to request a genetic test
within sixty days of the paternity affidavit execution.

311
Even if the biological

father registers with the current putative father registry—which most fathers
likely have no idea exists

312—he will still not have the right to challenge the
paternity affidavit of another man.

313
The biological father therefore may have

only a seventy-two hour window to exert his right to parent his child.
314

If the

biological father never discovers the pregnancy, he will never have the

opportunity to develop the relationship that the Court in Lehr demanded.
315

Therefore, through no fault ofhis own, a father will never know his child. Worse
still, an innocent child will never know her father. The justification for this
deprivation is that the biological mother and father were no longer intimately

involved. Father and child lose out due to circumstances beyond their control.

This system also serves the interests of Title IV-D and the state. Title IV-D's
goal is to receive the maximum amount of child support to reduce the welfare toll
on the state and federal budgets.

316
With two possible fathers to contribute

financially to the child's development, this system doubles the likelihood the

child will receive the full child support obligation, possibly more. Two fathers
also would give the mother more social resources to aid in the rearing of the

child. Having more parents means more extended family to help baby-sit and

provide emotional support to the mother.

Title IY-D also demands a "simple civil process" for the voluntary
acknowledgement ofpaternity.

317
If a man wants to be the child's father, then the

state may reasonably allow him to do so. This system allows the legal father to
acknowledge paternity under a simple civil process without violating the

biological father's interests in establishing a relationship with his child and his

potential right to parent in the process.

The state may desire to have the traditional family structure composed ofone

310

311

312

313

314

315

316

317

See supra notes 188-96 and accompanying text.

See supra notes 188-95 and accompanying text.

See Lehr v. Robertson, 463 U.S. 248, 264 (1983).

See supra notes 188-96 and accompanying text.

See Ind. Code § 16-37-2-2. 1(c)(1) (2008).

See Lehr, 463 U.S. at 262.

See 42 U.S.C. §§651, 666(a) (2006).

Id § 666(a)(5)(C)(i).



528 INDIANA LAW REVIEW [Vol. 43:499

father and one mother, but the state's most important goal should be to provide

the child with the most resources possible. Shuffling the child between homes is
not ideal, but giving the child the greatest opportunities possible ensures the child

will not suffer the "consequences of illegitimacy," such as poverty.
318 Few

children will suffer from too much love and attention. As Indiana has adopted the
best interests of the child approach to most of its family determinations, this

approach certainly makes more sense than the current system.
319

The current
system protects the mother and the state more than the child and fathers. The
proposed system balances the interests ofeveryone involved, while protecting the

best interests of the child to the maximum extent possible. It also does this
without trampling the rights of the fathers.

C. Enhanced Putative Father Registries

When a mother and father knowingly complete a false paternity affidavit,
they circumvent the adoption proceedings that the law would otherwise require

to assume legal parenthood.
320

Under Indiana's adoption laws, if the father has
filed with the putative father registry, he will receive notice of the adoption.

321

Registry provides notice so that he may intervene in the adoption proceeding and
present his objections.

322 No similar provision for paternity affidavits exists, even
if the father knew of the pregnancy and was able to file with the putative father
registry.

The imperfections of the current putative father registry usually prohibit the
registry from protecting the biological father's rights. These flaws usually result

from the biological father's lack of information. He often does not know of the
pregnancy and will likely not know of the registry unless he has consulted with
an attorney. Failure to register results in the biological father's implied consent

to proceed with the adoption.
323

Lack of knowledge is no defense.
324

Indiana places the burden of discovery of the pregnancy on the biological

318. Berger, supra note 276, at 28 1

.

319. See, e.g. , In re Paternity ofH.H., 879 N.E.2d 1 1 75, 1 1 78 (Ind. Ct. App. 2008) (applying

the best interests of the child standard).

320. A woman who knowingly provides a false name as the biological father commits a Class
A misdemeanor. Ind. Code § 16-37-2-2. 1(f) (2008). There is no equivalent provision for a man
who completes a false paternity affidavit, likely due to the difficulty in proving actual knowledge

of the man.

321. Id. §31-19-5-4.

322. See Kimberly Barton, Comment, Who 's Your Daddy?: State Adoption Statutes and the

Unknown Biological Father, 32 Cap. U. L. REV. 113, 128 (2003) (noting the purpose ofputative

father registries is to protect the father's interest by giving him notice, the mother's privacy, and

the child's and adoptive parent's interest in a "secure adoption").

323. Ind. Code §31-19-9-15.

324. See id. § 31-19-9-16 (establishing that a putative father may not contest the validity of

his implied consent).



20 1 0] YOU SHALL ALWAYS BE MY CHILD 529

father.
325

The mother usually has no duty to reveal her pregnancy to any potential

fathers.
326

The assumption behind this is that a father who does not care enough
to discover whether a child resulted from his sexual encounter with the mother

will likely be an unfit father. The state labels the biological father a deadbeat dad

because of his failure to call all former sexual partners to inquire whether a

pregnancy resulted. This is an unfair assumption, one that Indiana should

certainly not endorse. It is unrealistic to assume that sexual partners who are no
longer intimately involved will contact each other to inquire whether a pregnancy

has resulted. Failure to do something that few people actually do should not

constitute implied abandonment of his child.

If Indiana continues to place the burden ofdiscovery on the biological father,

then it must work more diligently to protect the father's rights. The legislature
should adopt an expanded version of the putative father registry. This expanded

model will give the putative father notice of adoption proceedings or execution

of paternity affidavits related to a child born to the mother. The registration
process must be simple, such as registry via phone or by the submission of an

online document. To register as a putative father, the father would need to have
the mother's first and last name in addition to at least one unique identifier, such
as middle initial, birth date, or social security number. The putative father may
provide as much information as possible to ensure proper notice. The state would
link the registry to the health department database of all live births. If the mother

has a live birth within twelve months of the registration, the putative father will

receive notice, allowing him to inquire further if he desires to pursue legal
paternity. The registration will expire at twelve months from the date of the
registration. If the mother and putative father have another sexual encounter in

that time period, he will have the option to renew his registration. Upon a live
birth by the mother, the hospital or health department will strongly encourage a

genetic test by the putative father. If more than one putative father comes
forward, the fathers will have to submit to a genetic test before either can

complete the paternity affidavit. The registration will also include a time restraint
to respond to the notice provided. Thirty days would strike the fairest balance

between the state's interest in prompt adoption and expeditious paternity

determinations of nonmarital children as well as the nonmarital father's right to

pursue a relationship with his child.

The key to an enhanced putative registry's success is advertisement. Fathers
must know that they must take affirmative steps to ensure legal rights to their
children and that filing with the registry is the easiest means to guarantee the
biological father will have access to his child. The state must advertise the
registry as much as possible. Reasonably accessible means of advertisement
would include posting information online, at high schools and universities, at

fatherhood initiative centers, and in government facilities.

Advertisement will necessarily expend state resources. However, the cost of

printing flyers or running television or radio advertisements is minuscule

325. See In re Paternity of Baby Doe, 734 N.E.2d 281, 285 (Ind. Ct. App. 2000).

326. See id.



530 INDIANA LAW REVIEW [Vol. 43:499

compared to the cost of litigation that results when the biological father does not
know his rights. The damage to the child when she must endure endless paternity
suits is immeasurable.

327
Advertisement may also identify fathers who would not

have otherwise known how to come forward, thereby resulting in more child
support going to the child. This would certainly further the goals of Title IV-D.

The importance of the putative father registry must become public knowledge.
Only then will putative father registries actually protect fathers' rights, rather than

punishing the fathers for their inability to maneuver a system they did not know
existed.

This proposed solution does not ignore the reality that some fathers do not
want to assume the responsibilities of fatherhood. However, the majority of

fathers will attempt to remain involved in their children's lives,
328

and the

behavior of a few should not justify depriving the fathers who want to be
involved the opportunity to do so. Indiana must still give them the chance to
make that decision. The biological father must have the right of first refusal
before any other man may take his place.

Conclusion

Indiana cannot change existing Supreme Court precedent, and Title IV-D is
likely here for the foreseeable future. However, Indiana can change the unjust,

and often unconstitutional, treatment ofthe unwed father. The Indiana legislature
must adopt the dual paternity structure as well as the enhanced, heavily advertised

putative father registry to protect nonmarital father's constitutionally protected

rights. Additionally, hospital personnel and the health department must promote

genetic testing and the right to an attorney prior to the execution of a paternity

affidavit. The paternity affidavits must disclose the sixty-day deadline to request
a genetic test and provide a full explanation of the legal ramifications of signing

the document. If the father wants to sign the affidavit in the hospital, an

independent third party should consult with him in a neutral environment away
from the mother and child.

If Indiana adopts all of these suggestions, fewer fathers will suffer the

consequences of ignorance of the law. Fewer children will have their biological

heritage stripped from them. It is easy to say that fathers should know better, and
if they really wanted to be involved in a potential pregnancy, they would have

stayed connected to the mother. It is easy to stereotype the deadbeat dad and

assume that all fathers who do not reside with the mother do not care about their
children. That could not be farther from the truth. The law itself drives a wedge
into one ofthe most precious bonds a person can ever experience. This must not

327. See David D. Meyer, Parenthood in a Time of Transition: Tensions Between Legal,

Biological, and Social Conceptions ofParenthood, 54 Am. J. COMP. L. 125, 137 (2006).

328. See Natasha J. Cabrera et al., Explaining the Long Reach of Fathers ' Prenatal

Involvement on Later Paternal Engagement, 70 J. MARRIAGE & Fam. 1094, 1096 (2008) (noting
that "[m]any men who become fathers commit to 'being there' for their children and vow to make

significant changes" and describing several variables that often impact the father's involvement).



20 1 0] YOU SHALL ALWAYS BE MY CHILD 53

1

continue.

When the Indiana legislature next convenes to discuss child support
enforcement with the "Let's get those deadbeats" vigor, each legislator should

consider what it would feel like to know you have a child that you never even had
the chance to get know. Someone else made the choice for you. Someone else
decided you were not good enough to be a parent. Perhaps then, Indiana's
perspective would change. No one deserves less than a chance to get to know
their children or their fathers.