Paternity Law in Utah: Broken, yes. Unfixable? Hmmmm. . .

*Note:  This story is shared with the consent of the client whose case it was.  It’s a particularly sad story, and we hope that shedding light on Utah’s unconstitutional case law will help make the change that needs to happen for the sake of other Dads in my client’s position.

One of the first cases that I picked up when I started out as a lawyer here in Utah was a paternity case involving an out of state dad and a Utah based mom.  It seemed like it would be straight forward enough.  Under the law in this country, parents have a constitutional right in the care and control of their own children (see the case that most recently upholds that right, Troxel v. Granville, here).  Barring some sort of egregious action on their part that would cause a court to either terminate the natural parent’s rights (and it would have to be SERIOUSLY egregious–see Santosky v. Kramer, here.), or a finding that the parent was unfit, parents have rights to their own children that are superior to those of third parties.  So, we (myself and the attorney I was working with at that time) figured we file a petition for paternity, custody, visitation, and support, get child support and visitation set up, and it would be a done deal.  Uh-huh.  Or not.

It was a Happy dream. But will it only ever be a dream??

The complicating factors in this case are as follows:  My client, who we’ll call Dad for the sake of clarity, had had an affair with Mom (the woman who gave birth to the child), while Mom was married to Husband.  Dad and Mom had been high school sweethearts, and had lived together at one point before Mom’s parents freaked out about the relationship and shipped her off to Utah to Straighten Out and Fly Right.  Which she did, or at least they thought she had.  In any event, Mom married Husband.

Sadly, Mom and Husband did NOT live happily ever after.  Mom still had feelings for Dad, and she hadn’t been married one full year when she started emailing Dad and telling him that even though she was married and by now had her first child with Husband, she was completely in love with Dad still.  She told Dad she was miserable with Husband, that she wanted to get divorced, and would Dad still be around for her.  Long story short, she continued emailing over the course of the next 3 years.  Dad broke off communications a couple of times, telling Mom that she needed to get divorced before the two of them could continue.  Mom always said she would, never did, but resumed communication within a couple of months on all of these occasions.  Things spiraled out of control until and around Thanksgiving of 2009, Dad flew from his home out of state to Utah, helped Mom load up her stuff into her car, and drove her back to her parents, who still live close to Dad.  Mom stayed there for about a month, during which time she and Dad had unprotected sex a few times.  But Christmas was coming, and Mom had left behind 2 sons with Husband, and she felt she needed to be back in Utah for the kids.  Before she left Dad’s state, however, she discovered she was pregnant.  And in her words, it would have been a “miracle” if the child was Husband’s, as she and Husband had not had sex in a VERY long time.

Mom, now in Utah, continued to tell Dad that she was coming home to him, that they’d raise the child together, that they’d be a family.  She did that up until roughly the end of March 2010.

The frame Mom sent Dad in anticipation of THEIR child being born. . .

She sent ultrasound pictures and a picture frame that says “I Love My Daddy” to Dad.  She called him from the doctor’s office and let Dad listen to the baby’s heartbeat.  They discussed baby names.  And then, end of April/beginning of May, 2010, Mom cut off all communication with Dad.

Dad knew the baby was due around the end of July.  He tried in vain to re-establish contact with Mom, to get some access to the child he and Mom both believed to be his.  To no avail.  Dad contacted an attorney and filed the paternity action in his case in September of 2010.

The statutes governing paternity in Utah are found at U.C.A. 78B Title 15, the Utah Uniform Parentage Act.  The Act’s purpose is to specifically discourage bastardization of children.  If a woman is married to someone at the time she gives birth, the husband is presumed under the law to the be the father of the child, unless that presumption is challenged.  The statute lays out clear and detailed procedure for rebutting the presumption of paternity.  [See U.C.A. 78B-15-607, starting at subpart 2.]  And here’s where the conflict in the law comes in.

I discussed in an earlier blog post the role of case law in a legal context.  Again, case law is made up of the opinions as written by the courts in a state that interpret statute and how it should be applied in any given instance.  Remember, the legislature–those people we vote into office to represent us–creates the statutes.  There’s a lot of discussion involved in the legislative sessions that give rise to finally enacted law.  The court will generally take a look at all of the history surrounding the enactment of any given law, the legislative notes, etc., and then endeavor to apply the law to individuals based on that information.  Case law is a binding guide on future courts in determining similar issues.  It’s extremely important.  It IS the law.

The most recent case in Utah that has come down concerning paternity in cases where Mom is married to someone besides Dad when a child is born is Pearson v. Pearson, 182 P. 3d 353 (Utah 2008)–a link is here.  Pearson refers to a 2-part policy test that must be applied to the biological father in cases like this one BEFORE he even has standing to bring the case (standing is the right to file an action).  The two parts are 1) preserving the stability of the marriage, and 2) protecting children from the disruptive and unnecessary attacks on their paternity.  (The policy test originated with a case called State in the Interest of J.W.F., in which the father petitioning for custody’s last name was Schoolcraft, and is thus called the Schoolcraft Test.)  The court in Pearson determined that a biological father essentially never has standing to file a paternity action when Mom is married to someone else.

The problem with Pearson, as the dissent in that case noted, is that it and the Court completely ignored the statute that was in existence at the time the case was heard.  Completely.  In a footnote, the majority opinion acknowledged this as well, but said that because the parties had not briefed or argued the actual statute on appeal, the court felt no need to consider it.  The statute, enacted by our elected representatives, is in conflict with the case law–case law which was made by judges that NONE OF US voted for.  The statute lists out 10 or so factors that go into determining whether a biological father has standing to pursue a paternity action.  Those factors are considerably more detailed, and can be found here:  U.C.A. 78B-15-608.  (Factors are couched as what would give the tribunal authority to deny genetic testing.)

Back to my client’s case:  After going back and forth with about a ream and a half’s worth of paper just to determine if we had the right to have a hearing, we ended up in court in January of 2011.  My client flew across the country to have the family court commissioner hem and haw, then decide that we needed to determine if we have standing before the commissioner was willing to order genetic testing. We waited some more, got another hearing, in March, where we intended to argue what we had all spelled out in briefs to the court (both sides, which by now also included Husband), and were told that we needed to have an evidentiary hearing instead because the commissioner felt we needed to put on witnesses and testimony, which we weren’t prepared to do.  I prepared the Order from that hearing, which put the evidentiary hearing calendaring onto the district court judge.  And then we waited some more.

We received notice two weeks ago that an evidentiary hearing was set in this case for July of this year.  At that point, the child will be nearly a year old.  You’ll note in looking through the statutes concerning parentage that one of the factors deals with the relationship the child has with the presumed father (in our case, Husband).  So the more time passes, the stronger that relationship becomes, and the more difficult it is to overcome the legal burden to get standing to petition.  Because you’ve got to remember where this is procedurally:  Without standing, one doesn’t even have a right to file the petition in the first place. We haven’t even technically gotten in the courtroom door.

So now we’re out 9, 10 months.  Still trying to get standing.  And you know what?  This all costs money.  In the month of November alone I billed the client $4,000.00 in hourly rates for drafting motions and memorandums of law in this case (essentially research papers).  All of these were necessary to get standing.  That was JUST NOVEMBER.  And you know what else?  My client isn’t a super rich dude who can just keep plunking down cash to keep going with this case.  Because even though he would desperately love to be with his son, he cannot realistically continue, in light of the passage of time, and the marginal chance of prevailing.

We’re settling.  My client is through.  He can no longer continue to keep his life on hold, with the small, paper-thin chance he may have of getting standing.  He wants to get over this long, painful relationship that Mom kept him in, that he stayed in because he loved her, and because he believed her when she said that she would get divorced and come home to him.  He’s tired.  And he’s out of money.  And that’s the harsh reality.

The truly sick part here:  My client has a constitutional right to the care and control of his child, but only if he can PROVE that it’s his child, which he can’t do unless the court allows him the opportunity, which Pearson says he NEVER has a right to even try for.  It’s a Catch-22.  And it’s not even in accordance with Utah statute, put in place by OUR elected representatives.

Pearson lives on.  It’s still “good” law, even if it’s BAD law.  Even the concurrence in the case noticed it:  “[W]e are in this case endorsing a significant development in the common law that may endure only long enough for litigants to properly stage a showdown between the common law and statutory approaches to determining standing in parentage cases.”

If I could afford to work this case for free, the Utah Supreme Court would have gotten their “showdown between the common law and statutory approaches.”  If only.  Because until that happens, men like Dad will continue to be the only ones eating the consequences of having a child in cases like this.  And that’s bullshit.