The Affidavit Signed Before the Notary Arrived
Attorney Reyes represents a parent in a custody modification. The client, Ms. Patel, reviewed a draft affidavit at home and signed it in front of her roommate, who is not a notary. The next morning she brings the signed affidavit to your office. The last page contains a jurat stating: 'Subscribed and sworn to before me on May 6, 2025,' followed by a notary signature line. You are a notary public, but you did not see Ms. Patel sign. The affidavit says: 'I have never missed a scheduled custody exchange.' Ms. Patel now tells you she missed two exchanges, on March 8 and April 12, because of work, and that the other parent has text messages proving it. The affidavit also says: 'The other parent's conduct is harmful to the child and the court must restrict visitation,' which is the conclusion the attorney plans to argue. Filing is set for May 9.
1. Identify every defect in the affidavit and explain the risk each creates.
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First, the affidavit is false. Ms. Patel missed two exchanges, and the other parent has texts. Presenting it would violate the duty of candor and expose the client to perjury or sanctions; the attorney cannot offer evidence the lawyer knows is false. Second, the jurat is defective because you did not witness the signature or administer an oath. A notary's certificate is not a rubber stamp; completing it retroactively is a false attestation and can void the affidavit and jeopardize your commission. Third, the sentence 'the court must restrict visitation' is a legal conclusion, not a fact; it invades the court's role and is likely objectionable. Fourth, the client's signature was not properly sworn, so the document may not be admissible as an affidavit at all. The filing deadline does not justify filing a known false document. The affidavit must be corrected, re-executed, and re-notarized before it is filed.
2. Rewrite the two problematic sentences so the affidavit is accurate and admissible.
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Replace 'I have never missed a scheduled custody exchange' with: 'I missed the custody exchanges scheduled for March 8, 2025, and April 12, 2025. On both dates I was scheduled to work and did not notify the other parent in advance. I have not missed any other scheduled exchange since January 2025.' Replace 'The other parent's conduct is harmful to the child and the court must restrict visitation' with specific facts: 'On March 8, 2025, the other parent arrived two hours late and the child was crying when I returned. The child told me, "I was scared."' If the client wants to include an opinion, label it as her opinion and keep it tied to personal observations. Do not soften the false statement into a misleading half-truth such as 'I have rarely missed exchanges'; that remains deceptive. The revised affidavit should be reviewed by the attorney, then read and signed by the client under oath.
3. Explain how to fix the jurat without backdating or misrepresenting when the client signed.
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Do not notarize the existing signature. The client must appear before you again, sign a new affidavit in your presence, and be placed under oath. Administer the oath, have her answer, then complete a new jurat with the actual date and your signature and seal. If your state permits an unsworn declaration under penalty of perjury and the court accepts it, the attorney may choose that route, but the client must still sign the corrected document. Mark the old affidavit 'superseded-not filed' and keep it in the file; do not destroy it if litigation is anticipated. Do not backdate the jurat or state that she signed before you when she did not. If the client cannot appear before the deadline, seek an extension or file a declaration, not a false affidavit.