Don’t I Have Joint Custody and/or Parenting Time Rights with My Child if I Signed the Hospital Paternity Affidavit?

Don’t I Have Joint Custody and/or Parenting Time Rights with My Child if I Signed the Hospital Paternity Affidavit?

A paternity affidavit is a sworn statement which can be signed by the mother and father of a child born out of wedlock at the hospital within 72 hours of the child’s birth or at the Department of Health before the child’s age of emancipation. Mother’s section of the affidavit includes a sworn statement that the person signing as the father of the child, called the putative father, is the biological father of the child and father’s section includes a statement that he believes he is the biological father of the child. Many other statements regarding the parties’ rights and obligations when signing the affidavit are included in the document. This blog discusses the legal and practical effects of signing a paternity affidavit.  

A hospital paternity affidavit contains check boxes and signature lines for mother and father to agree to share joint legal custody of the child, however, legal custody is very different from physical custody. Physical custody refers to the physical care and custody of the child, or in plain English, with whom the child lives. Legal custody refers to which parent is authorized to make major decisions regarding the child’s upbringing, such as healthcare, religious training, and education and who should have access to school and medical records. If you and your child’s mother agree to share joint legal custody when executing the paternity affidavit, you must submit genetic, or DNA, testing from an approved laboratory, proving that you are the child’s biological father within 60 days of the child’s birth, or the agreement is void. An agreement to share joint legal custody and timely submission of the required DNA testing still does not give you joint physical custody. A child’s mother has primary physical custody of a child born out of wedlock, unless and until, a court orders otherwise.  

The paternity affidavit does, however, afford a putative father parenting time rights according to the Indiana Parenting Time Guidelines. Despite the clear language of the paternity affidavit, granting mother primary physical custody and father parenting time rights pursuant to the Guidelines, parents may experience issues with enforcement of these rights when a conflict leads to the intervention of law enforcement. Law enforcement officers are oftentimes unfamiliar with paternity affidavits and family law statutes, as their primary responsibility is the enforcement of criminal codes. Because paternity affidavits are not court orders, nor are they signed by a judge, officers generally advise disputing parents that the problem is one of a civil nature and that they should contact their respective attorneys. They will then likewise leave custody and control of the child with the parent who is currently exercising it.  

Another complication that commonly occurs after signing a paternity affidavit involves the issue of child support. When signing a paternity affidavit, you are agreeing that the mother of the child AND the Title IV-D agency has the right to seek and obtain a child support order against you. Either of them may do this at any time, so even if you live with your child and his or her mother and provide support for the child, when that support is not being paid through the state central collection unit, you are not getting any credit for it.  

The hospital paternity affidavit serves its purpose; however, it is a very limited one. If you have fathered a child out of wedlock, you should seek court ordered custody, parenting time, and child support determinations as soon as possible after the child’s birth. This will provide you with a custody and parenting time order, signed by a judge, that law enforcement will recognize and enforce in case of a dispute between you and the child’s mother, as well as the opportunity to establish a reasonable support order based on your particular circumstances. Establishing your legal rights and responsibilities does not need to be adversarial, and your child’s mother can join you in a joint petition and settlement agreement, if you so choose.  

Custody, parenting time, and support issues can become more complicated the longer you wait after the child’s birth to establish your rights through the court. If you have fathered a child out of wedlock, the attorneys at Ciyou & Associates, P.C. can help you protect these rights. This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement. 



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