The Most Important Legal Document For Your Child

The Most Important Legal Document For Your Child

By: Stacy Flanery

The most important legal document for your child if you are not married IS NOT a birth certificate.

Having a child is a whirlwind.  A whirlwind in terms of time, emotions, and of course, paperwork.  Most hospitals are set up to allow you to pre-register to have your child and provide all of your personal information, medical history, and the like.  You can provide a birthing plan in advance, decide whether your child will immediately receive the hepatitis C vaccination, and sign a consent for your treatment and the treatment of your child.  All of this takes place regardless of whether you are married.   After the joyous delivery, you are ecstatic, scared, and exhausted, and feel like you are in a whirlwind.  You are completely preoccupied with the visitors, with all the questions, and, of course, your beautiful baby.  Eventually, someone will come in and provide paperwork.  The paperwork will include the cute birth announcement you get from the hospital, the information about pictures, resources to assist after you go home, and perhaps a cafeteria menu.  Somewhere along the way, someone will ask you (if you are not married) if you want the Father listed on the Birth Certificate.  Many say yes, of course, and both parents sign where they are told to sign. They later get a copy of the birth certificate and Father is listed, so Dad is all set, right?  It all seems neat and tidy, correct.  Well, unfortunately, the answer is only a maybe.

The document the hospital will ask you to sign if you want an unmarried Father listed on the Birth Certificate is called an Affidavit of Parentage.  An Affidavit of Parentage is a legal document that both parents sign, swearing under penalty of perjury, that the individual listed is the biological Father of the child.  The affidavit of parentage is THE MOST IMPORTANT LEGAL DOCUMENT an unmarried Father can possess.  In the event that the parties separate, it is the affidavit of parentage NOT THE BIRTH CERTIFICATE that gives an unmarried Father his rights to his child.  Being listed on the birth certificate does not provide you with any rights to your child, any rights to visitation, or any rights at all; the affidavit of parentage is the document that provides these rights.  In theory, anyone could be named on the birth certificate, although I would argue that is generally not true in practice.  In many counties a Father cannot even request a court order to see their child without providing a copy of the affidavit of parentage or having paternity reestablished through the court.  Technically a hospital should not allow you to get treatment for your child, law enforcement should not retrieve your child from a third party on your behalf without showing them the affidavit of parentage, and you cannot enroll your child in school without that document.   

It is painfully obvious to practicing family law attorneys that parents often have no idea what they are signing to have a Father listed on the birth certificate and certainly do not understand the significance.  The affidavit of parentage gets sent home in a folder from the hospital and is often lost or even thrown out because people believe that the birth certificate controls once it is issued.  It is not the parents’ fault: they are never told and no one really thinks to ask.  It is not the hospitals’ fault: it is not their job to provide legal advice.  My opinion is that fault lies with the legislature as they could simply pass a law that says you cannot be listed on a birth certificate without an affidavit of parentage thus making all birth certificates sufficient.   Until that time, please pass along this friendly piece of advice to any and all unmarried parents: HANG ON TO THE AFFIDAVIT OF PARENTAGE.  Keep it in a safe place and guard it like you would your child’s birth certificate or social security card.