Can You Set Aside a Paternity Affidavit?

Like many things in life, families come in many shapes and sizes. Families are formed and can change throughout a lifetime, including the roles parents play in a child’s life. Having a father in your child’s life comes with many benefits, including emotional connection, support, and avoiding future complications that come with establishing paternity. But what happens if the man listed on the birth certificate is not in fact the child’s biological father? Can you set aside an establishment of paternity? In Indiana, the answer is yes.

Establishing Paternity

When dealing with paternity issues, it is important to consider three things: (1) what is an establishment of paternity; (2) has the paternity of a child has been established; and (3) do you need to set aside an establishment of paternity?

Looking to the first question, an establishment of paternity is the legal recognition of the identity of a child’s father. Establishing paternity is done through documenting the father’s identity on a child’s birth certificate. This action can be done at the time of the child’s birth, filing of a petition no later than 2 years after the child’s birth, or through an adoption process.

Next, Indiana law provides both the parents and child with options for filing a paternity action. If an adult wishes to initiate a paternity action, he or she may do so by:

(a) filing a paternity action with the courts; or

(b) executing a paternity affidavit, which will conclusively establish a man as the legal father of a child, without any further proceedings by a court.

However, be careful that you follow the time restrictions imposed on adults when filing a paternity action. Indiana law requires that the mother, a man alleging to be the child’s father, or the department or its agents file a paternity action no later than 2 years after the child is born, unless

(a) the mother and alleged father jointly file and waive limitation on actions;

(b) alleged father has provided support voluntarily or by agreement;

(c) the mother files a petition after the alleged father acknowledges in writing to be the child’s father;

(d) the alleged father files a petition after the mother, in writing, acknowledges his paternity;

(e) the petitioner was incompetent when child was born; or

(f) the responding party cannot be served during the 2-year period.

Should any of these exceptions occur, then a paternity petition must be filed within 2 years after a listed condition ends.

If a child wishes to initiate an action, he or she must do so:

(a)  before the age of 20;

(b) if incompetent, 2 years after the child becomes competent, or

(c) if competent, through the child’s guardian, guardian ad litem, or next friend.

A paternity affidavit can be executed through a private or public hospital, or a local health department. However, prior to the execution of a paternity affidavit, all parties involved should consider the legal ramifications of executing such a document.

Disestablishing Paternity

The third step in a paternity issue may be determining whether or not you can set aside an establishment of paternity. Indiana law provides fathers with 2 statutory options for setting aside paternity. First, a man who is a party to an executed paternity affidavit can, within 60 days, file an action to request a genetic test. If the test excludes the man as the child’s biological father, then the court will set aside the paternity affidavit. Second, a court will rescind a paternity affidavit after the 60-day limit only if:

(a) there is evidence of fraud, duress, or material mistake of fact involving the signing of a paternity affidavit; AND

(b) the man seeking rescission has been excluded, through genetic testing, as the biological father.

A third option is limited to extreme and rare circumstances. If a party can prove exceptional circumstances, then a court may allow a paternity affidavit to be set aside after the 60-day limit has expired. But this final option is not based in statute and is exercised at the court’s discretion. As a general rule of thumb, Indiana courts have enforced this 60-day limit. However, appellate courts have considered the important public policy interest in correctly identifying biological parents and allowing challenges to paternity affidavits outside of the 60-day limit. Notwithstanding the previous sentence, you should be careful to consider your own timeline when seeking to set aside your paternity.

If you or someone you know has questions about setting aside a paternity affidavit, our family law lawyers at Banks and Brower, LLC can assist.  Give us a call at (317) 526-4630 or email us at info@banksbrower.com.