Most fathers believe that if their name appears on their child’s birth certificate their parental rights have been established. But what does signing a birth certificate or paternity affidavit really mean? As fathers’ of children born outside of marriage it is important to be aware of what rights you have and to make sure those rights are protected.
Every state will have its own set of laws concerning the establishment of paternity. It is important that you contact an attorney in your state to determine exactly what must be done to establish your parental rights in your state. For the purpose of this article I will be discussing the laws in Indiana.
In Indiana, when a child is born out of wedlock the biological mother automatically has sole legal custody. Fathers may sign a paternity affidavit once the child is born acknowledging under oath that he is the father of that child. Make sure you fully understand the ramifications of signing this form. Many states utilize paternity affidavits or other forms of acknowledging paternity. This is the form you sign in order to be listed as father on the child’s birth certificate. You need to fully read any affidavit or acknowledgement before signing it. Understand you are not just giving the child your last name. You are quite possibly obligating yourself to financially supporting that child for many years. In Indiana, you only have 60 days to rescind a paternity affidavit after it is signed. If the paternity affidavit is signed and not rescinded within 60 days, you are now that child’s legal father. Now you need to know what being the legal father means. I am first going to discuss the benefits of being the legal father. This is the right to custody or parenting time with your child. It is important to realize you have no enforceable rights without a court order. Many parents who have children out of wedlock are still in a relationship at the time their child is born. They may be living together and there are no immediate issues concerning custody or parenting time with their child. For this reason, father and mother see no reason to involve a court. Honestly, there is little advantage to mother in filing a paternity action if the parties are cohabitating. She is still the legal custodian of the child. Problems occur when the parties’ relationship ends. Although you may legally be the child’s father, mother is under no legal obligation to let you see your child unless a court order is in place.
Once a petition is filed with the court you will have the opportunity to ask for custody or visitation with your child. Because you have signed the paternity affidavit you will not have to prove you are the father. As the father you will have the right to ask for custody. In Indiana there is no presumption in favor of one parent over the other in terms of awarding custody initially. Once custody is awarded to one parent or the other, there is a presumption that the non-custodial parent should have regular visitation with their child. The problem is that the process to obtain custody or visitation with your child may take several months. Even getting into court to obtain a temporary order may take several weeks during which time you may be unable to see your child. This is why it is important to file your petition for paternity as soon as possible. Some states even allow for this to be done prior to the birth of the child. It is important that you have a court order addressing the issues of custody, visitation and child support even if you and mother are still together. Doing so should help alleviate most issues that will arise if you and mother end your relationship.
The Importance of Paternity Orders – Part II
This is part two of a discussion of paternity orders. As with part one, our discussion will be utilizing the laws of Indiana. You should consult an attorney in your state to determine the specific laws of that state. Part one dealt with how a court order of paternity establishes custody and parenting time rights. Now we will discuss another benefit to having a court order, child support. Yes, I said child support. I know many fathers prefer to support their children without court intervention. However, there are many advantages to having a court order of support in place as soon as your child is born.
First, it is important that you know how much support you are obligated to pay. Most states utilize a formula based on income to determine how much each parent should be contributing to support their child. Indiana uses an income share model which takes both parties gross income into account as well as daycare expenses and health insurance premiums. Indiana also gives a credit to each parent for the number of overnights they have their child. It is therefore not always the case that the non-custodial parent pays the custodial parent. Also even if you share custody 50/50 with the mother, one of you may still owe the other support. Knowing exactly how much you should be contributing to your child’s support is important because you do not want to over or underpay. If you overpay some states, including Indiana, consider that a gift. If you underpay you may be liable for making up payments. This is true even if no court order exists at the time of payment. For example, let’s say you have a 2 year old child that has been living with mother. You have been voluntarily giving her $50 a week since the child’s birth. Mother decides that she would like a court order of child support. Based on the child support formula the court orders you to pay $75 a week.
In Indiana that amount can be retroactive to the date of the child’s birth. This means you are now $2,600 (104 weeks x $25 a week) behind in child support. The second reason it is important to have a court order of support is most states require that payments be made through the county clerk or a state office. Most people think this is a hassle and prefer to make direct payments to mother. My advice is never make direct payments to mother. This is especially true if the court order directs that payments be made through the clerk. If you are ordered to make payments through the clerk and make direct payments, the direct payments may be considered gifts and not count as support. Even if your order allows for direct payments to mother it is much more difficult to account for those payments. If payments are made through the clerk a record is made of all payments. You do not have to rely on mother’s acknowledgment that you have paid her or keep records of payment. Also with direct payments there are always disputes about whether the money was intended for support or not. In conclusion, establish a court order of child support as soon as possible to prevent overpayment or underpayment of support. Also, always make child support payments through the clerk if ordered to do so. If your order allows for direct payments, make sure you keep a verifiable record of all payments made.
