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Category: Paternity

Can anyone recommend a good attorney for father’s rights?

Many fathers and those who care about them ask this question. It’s no wonder why. But beware. “Father’s Rights Attorney” is, for the most part, a scam. Don’t misunderstand me: fathers unquestionably get treated unfairly in child custody disputes. And there are a few attorney’s out there who may legitimately make focuses solely (and expertly) on defending and preserving and advancing father’s rights in child custody disputes, but generally, the “Father’s Rights Attorney” is just a marketing ploy. Have you ever wondered why you don’t see any “Mother’s Rights Attorney” advertising? Because men have more money than women (generally), so the “Father’s Rights Attorneys” play upon the fears of fathers by convincing fathers that “we specialize” and “we care” and “we know what it takes to get fathers JUSTICE!!!!!” Stuff like that to get fathers to open their wallets.

If you are a father and you are concerned that you will not be treated fairly or you are not being treated fairly by a biased judge, you’re likely not looking for a “Father’s Rights Attorney”; what you’re looking for is a skilled, knowledgeable, diligent, honest attorney who will first tell you whether he/she believes you have a fighting chance, and if so, will help you prepare and argue your case, so that you and the children are dealt with fairly when it comes to your involvement in your children’s lives.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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I have a family court hearing coming up on the 25th. How do I create a proposed visitation plan to the judges? How will our work schedules play into this? I’m the non-custodial parent.

Your question is too vague to understand and answer. You need to consult with an attorney in your jurisdiction to get the correct answers to your questions (both the questions you have asked and the questions you should be asking).

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Blake v. Smith – 2023 UT App 78 – child custody, child support

Blake v. Smith – 2023 UT App 78

2023 UT App 78

THE UTAH COURT OF APPEALS

DEJUAN BLAKE,

Appellee,

v.

JILLYN SMITH,

Appellant.

Opinion

No. 20210779-CA

Filed July 20, 2023

Third District Court, Salt Lake Department

The Honorable Su Chon

No. 184900112

Julie J. Nelson, Attorney for Appellant

DeJuan Blake, Appellee Pro Se

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY

concurred.

CHRISTIANSEN FORSTER, Judge:

 

¶1        Jillyn Smith appeals the district court’s order regarding custody and child support for her minor son (Child). Because we determine the court abused its discretion by awarding Smith sole physical and legal custody while requiring joint decision-making between Smith and Child’s father, DeJuan Blake, we vacate that part of the court’s custody award. Furthermore, because we conclude the court made a mathematical error in calculating the amount of child support, and that a further examination of the evidence of Blake’s income is warranted, we reverse the court’s child support award and remand for recalculation as appropriate.

BACKGROUND

¶2        Smith met Blake in 2007 in Las Vegas, Nevada, and the two entered into a relationship. As a result of the relationship, Smith became pregnant with Child in 2009. At the time Smith learned about the pregnancy, she was no longer living in Las Vegas—she had moved to Utah to escape her relationship with Blake.

¶3        After a tumultuous pregnancy, during which Blake continuously asked Smith to have an abortion, Child was born in Utah in October 2009. Blake traveled to Utah to visit Child twice during the first year of Child’s life, with each visit lasting “maybe an hour or two.” The sporadic visits continued over the next few years, with Child and Smith traveling with Blake on short trips together. Although Smith asked Blake for financial support during this time, Blake did not provide support and instead always offered an “excuse.” Eventually, the communications between the couple became too toxic and Smith elected to “take a break from communication” with Blake.

¶4        Thereafter, Smith decided to “give [Blake] a second chance.” Blake and Child had “maybe a few” “infrequent[]” telephone conversations a year, but the conversations were short due to Child’s speech impediment. Blake was not involved in Child’s schooling or scheduling, he never attended Child’s doctor’s appointments, and he “wouldn’t follow through” or offer any explanation as to why he could not help Smith with financial support for Child’s medical care or educational needs.

¶5        Blake traveled to Utah in 2015 to attend Child’s birthday party. Toward the end of the party, Blake and Smith had a verbal altercation regarding Blake’s failure to honor their agreement for Blake to pay Smith child support. Following this visit, Blake returned to Utah once in 2016 to attend Child’s baseball game. That visit also ended in a verbal altercation.

¶6        In January 2018, Blake petitioned the district court for paternity and custody of Child. At the time, Child was eight years old and living with Smith.

¶7        After initiating custody proceedings, Blake filed a series of three financial declarations with the district court. Blake is self-employed and owns a company managing professional and aspiring boxers. Blake’s stated gross income, monthly expenses, and debt listed on each of the three financial declarations differed significantly. In the first declaration, Blake claimed $0 in gross monthly income, $1,875 in monthly expenses, and a debt of $7,240. In the second, Blake claimed $2,000 in gross monthly income, $17,797 in monthly expenses, and no debt. And in the third, Blake claimed $1,686 in gross monthly income, $3,947 in monthly expenses, and no debt. The bank statements filed with each disclosure were incomplete; however, the bank statements that were submitted showed that between August 2017 and January 2019, Blake made deposits into his personal account totaling $456,669.98, and that during that same time, he made withdrawals totaling nearly $50,000 for investments in cryptocurrency, payments to his mother, payments to the mother of one of his other children, and luxury clothing.

¶8        The case proceeded to a bench trial in October 2020. At trial, Smith detailed the relationship between Child and Blake. She explained that Blake had never been actively involved in Child’s life and that Blake had not seen Child at all since May 2016. Smith testified that she and Blake had reached an “original agreement” for child support where Blake would pay her $1,000 per month. She further testified that this agreement did not start until 2015—when Child was already six years old—and that the payments had lasted for only one month. In total, Smith estimated that Blake had contributed $1,600 in support payments “over the entirety of [Child’s] life.”

¶9        Following trial, the district court adjudicated Blake as Child’s father, awarded Smith sole physical and legal custody of Child, and awarded Blake standard relocation parent-time pursuant to Utah Code section 30-3-37, which is approximately 17% of the year. In reaching its legal custody determination, the court analyzed the statutory factors outlined in Utah Code sections 30-3-10 and 30-3-10.2 and concluded that the presumption favoring joint legal custody had been rebutted and that joint legal custody was not in Child’s best interest. However, the court ordered a joint decision-making arrangement between the parties, requiring that the parties “discuss with each other decisions that should be made regarding [Child].” The arrangement further provides, “If there is a dispute, the parties should attend mediation and each pay half of the mediation fees. If the dispute remains, then [Smith] will have final say. [Blake] can . . . bring the matter to court if he is unsatisfied with the decision.”

¶10      Regarding child support, the district court primarily calculated Blake’s past child support payments based on his 2018 tax record, where he claimed $45,050 in gross receipts and $34,483 in deductions. After reviewing the evidence, the court concluded that several of the deductions—totaling $27,530—were unsupported and accordingly struck those deductions. Based on this, the court found that Blake’s “annual income should be $23,790” through March 2020. However, given the outbreak of the COVID-19 pandemic, the court concluded that “Blake’s income has come to a halt,” and it accordingly found it “appropriate . . . to impute minimum wage income of $1,257/month from March 2020 forward.”

ISSUES AND STANDARDS OF REVIEW

¶11      Smith now appeals the district court’s order regarding custody and child support, raising two issues for our review. First, Smith argues the court abused its discretion when it “issued an internally inconsistent [custody] award” giving Smith “sole legal and physical custody but also order[ing] joint decision-making” between her and Blake. “We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 24, 414 P.3d 933 (quotation simplified). “But this broad discretion must be guided by the governing law adopted by the Utah Legislature. And on matters of statutory interpretation, we review for correctness.” Dahl v. Dahl, 2015 UT 79, ¶ 155, 459 P.3d 276 (quotation simplified). And “[w]here the court’s findings are internally inconsistent on a material point, reversal and remand are appropriate.” Vandermeide v. Young, 2013 UT App 31, ¶ 21, 296 P.3d 787, cert. denied, 308 P.3d 536 (Utah 2013).[1]

¶12      Second, Smith argues the district court abused its discretion when it calculated Blake’s income for purposes of child support. “We review the district court’s decisions regarding child support . . . under the abuse of discretion standard.” Pankhurst v. Pankhurst, 2022 UT App 36, ¶ 13, 508 P.3d 612 (quotation simplified). Where the court’s findings contain mathematical error or conflict with the record, we will remand for recalculation. See Miner v. Miner, 2021 UT App 77, ¶¶ 57–60, 496 P.3d 242.

ANALYSIS
I. Custody

¶13      Smith first challenges the district court’s custody award, contending the court abused its discretion in crafting the award because it is “internally inconsistent.” According to Smith, the joint decision-making arrangement “undermines” her award of sole physical and legal custody because it “allows [Blake] to force mediation and litigation whenever he disagrees with a decision made by [Smith], even though she has sole legal and physical custody.” We agree.

¶14      As an initial matter, the Utah Code does not define “sole physical custody” or “sole legal custody.” But in Hansen v. Hansen, 2012 UT 9, 270 P.3d 531, our supreme court provided guidance as to the meaning of those terms. In Hansen, the father and the mother were awarded joint custody of their daughter following their divorce. Id. ¶ 2. The mother was awarded sole physical custody and the father was ordered to pay child support to the mother. Id. Sometime later, the daughter entered a private youth homeless shelter, where she lived through her eighteenth birthday. Id. While the daughter was living at the shelter, the father filed a petition with the district court seeking to redirect his child support payments from the mother to the homeless shelter. Id. ¶¶ 2–3. The court denied the motion, which denial was ultimately upheld by the Utah Supreme Court. Id. ¶¶ 4–5, 30.

¶15      The supreme court’s decision centered on the meaning of custody. Although the daughter had been residing at the shelter, the court determined that the daughter’s physical custody had not changed; rather, the mother still retained physical custody. Id. ¶¶ 15–19, 28. The court explained,

Family law treatises consistently define custody as a bundle of constituent rights and obligations to a child’s possession, care, and control, and explain that the essence of custody is control over all aspects of the child’s life coupled with responsibility for the child’s welfare. Standard dictionary definitions of custody are to the same effect.

Custody is often divided into two subsets: legal and physical custody. Both encompass a duty of control and supervision. While legal custody carries the power and duty to make the most significant decisions about a child’s life and welfare, physical custody involves the right, obligation, and authority to make necessary day-to-day decisions concerning the child’s welfare. Although the latter is limited to the right to control the child’s daily activities, it still involves a right of control. This grant of authority is necessary so that the custodian can control and discipline the child or make emergency medical or surgical decisions for the child.

Id. ¶¶ 16–17 (quotation simplified). Put differently, “the legal duty of control or supervision [is] the essential hallmark of custody.” Id. ¶ 18 (quotation simplified). Legal custody encompasses the ability to make major decisions in a child’s life, while physical custody encompasses the ability to make day-to-day decisions in a child’s life.

¶16      Although the Utah Code does not define sole physical or legal custody, it does define “joint legal custody” and “joint physical custody.”[2] Under the current statutory scheme, a parent may be awarded “joint legal custody,” which is defined as “the sharing of the rights, privileges, duties, and powers of a parent by both parents.” Utah Code § 30-3-10.1(2)(a) (emphasis added). As this court has long recognized, the purpose of joint legal custody is to allow “both parents [to] share the authority and responsibility to make basic decisions regarding their child’s welfare.” See Thronson v. Thronson, 810 P.2d 428, 429–30 (Utah Ct. App. 1991), cert. denied, 826 P.2d 651 (Utah 1991).

¶17      Taken together, it follows that an award of “sole” legal custody does not involve sharing the “rights, privileges, duties, and powers of a parent.” See Utah Code § 30-3-10.1(2)(a). Accordingly, when the district court awarded sole legal and physical custody to Smith, it also awarded her alone the “rights and obligations to [Child’s] possession, care, and control,” see Hansen, 2012 UT 9, ¶ 16 (quotation simplified), including the sole authority to “make the most significant decisions about [Child’s] life and welfare,” see id. ¶ 17 (quotation simplified), and the “authority to make necessary day-to-day decisions concerning [Child’s] welfare,” see id. (quotation simplified). It therefore was inconsistent to simultaneously order a joint decision-making arrangement.

¶18       Moreover, the joint decision-making arrangement is at odds with the district court’s own findings regarding Child’s best interest. “In making a custody determination, a [district] court’s primary focus is what custody arrangement would be in the best interest[] of the child.” Grindstaff v. Grindstaff, 2010 UT App 261, ¶ 4, 241 P.3d 365. Utah law presumes that joint legal custody is in a child’s best interest, but that presumption may be rebutted by showing “by a preponderance of the evidence that it is not in the best interest of the child.” Utah Code § 30-3-10(3)–(4). And under Utah law, there is “neither a preference nor a presumption for or against joint physical custody or sole physical custody.” Id. § 30­3-10(8).

¶19      “In determining whether the best interest of a child will be served by ordering joint legal custody or joint physical custody or both, the court shall consider” a number of statutory factors. See id. § 30-3-10.2(2). Here, the court analyzed the statutory factors and determined that awarding Smith sole legal and physical custody of Child was in Child’s best interest. In particular, the court found that there was “very little evidence provided that either parent could function appropriately with co-parenting skills,” that it was “unclear” whether the parties could work together to reach shared decisions in Child’s best interest, and that there was “very little evidence” the parties “actually discussed and made decisions together.” In light of these findings, it is unclear how the joint decision-making arrangement—which is not limited to major decisions but instead encompasses all decisions—could be properly viewed as advancing Child’s best interest. It does not follow from the evidence of the parties’ ongoing issues making decisions relating to Child that such an arrangement would lead to success in the future. Rather, precisely because of the court’s findings, it seems likely that such an arrangement would cause ongoing issues, result in costly mediation and additional court involvement, and be detrimental to Child’s best interest, which is exactly what Utah law seeks to avoid.

¶20      In sum, the district court abused its discretion when it awarded Smith sole physical and legal custody while also ordering a joint decision-making arrangement between Smith and Blake. Although Utah law does not prohibit a joint decision-making arrangement in cases involving an award of joint physical and legal custody, an examination of the underlying statutory scheme reveals that such an arrangement is not compatible with an award of sole physical and legal custody. Furthermore, these competing provisions belie the court’s own findings regarding Child’s best interest as relates to custody. As such, we vacate the portion of the court’s custody award ordering the joint decision-making arrangement.

II. Child Support

¶21      Smith next argues the district court erred in calculating child support. Specifically, Smith takes issue with the court’s calculation of Blake’s income for purposes of child support, contending the court’s calculation (1) contains a mathematical error and (2) is inconsistent with the evidence in the record. We agree.

¶22      The Utah Child Support Act outlines the process by which a district court must evaluate the income of a parent when calculating child support. See generally Utah Code § 78B-12-202. To begin, the court must consider the “gross income” of a parent, which the Utah Code defines broadly as including

prospective income from any source, including earned and nonearned income sources which may include salaries, wages, commissions, royalties, bonuses, rents, gifts from anyone, prizes, dividends, severance pay, pensions, interest, trust income, alimony from previous marriages, annuities, capital gains, Social Security benefits, workers’ compensation benefits, unemployment compensation, income replacement disability insurance benefits, and payments from “nonmeans-tested” government programs.

Id. § 78B-12-203(1). And when a parent is self-employed—as is the case with Blake—the statute directs how gross income should be handled. It provides that “[g]ross income from self-employment or operation of a business shall be calculated by subtracting necessary expenses required for self-employment or business operation from gross receipts. . . . Gross income . . . may differ from the amount of business income determined for tax purposes.” Id. § 78B-12-203(4).

¶23      The district court determined that Blake’s income had been impacted as a result of the COVID-19 pandemic and accordingly evaluated his income for purposes of child support based on what he had earned pre-pandemic and what he was earning during the pandemic. On the record before us, we see two errors in the court’s calculations. First, the court made a discrete mathematical error in calculating Blake’s pre-pandemic income. Second, and more broadly, the court did not consider all the evidence of Blake’s finances when calculating Blake’s income, both pre-pandemic and at the time of trial.

¶24      First, the district court calculated Blake’s past child support payments using his 2018 tax record. On that record, Blake claimed $45,050 in gross receipts. From that, Blake deducted $34,483 as follows: $5,270 for “materials and supplies,” $3,605 for “advertising,” $360 for “legal and professional services,” $500 for “office expense,” $21,760 for “other business property,” and $2,988 for “utilities.” After viewing the evidence, the court found that Blake had failed to adequately explain why he should be entitled to deductions for “materials and supplies” ($5,270), “other business property” ($21,760), or “office expense” ($500), and it accordingly struck those deductions, totaling $27,530. As a result, the court should have concluded that Blake’s income was $38,097, or $3,175 per month rounded. But it did not. Instead, it concluded that Blake’s income was $23,790, or $1,983 per month. This value is mathematically incorrect.

¶25      Second, notwithstanding the mathematical error in the court’s calculation of Blake’s income, the value imputed by the court is inconsistent with the evidence in the record. Utah law is clear that “in contested cases,” a judge is entitled to impute income to a parent so long as the judge “enters findings of fact as to the evidentiary basis for the imputation.” See id. § 78B-12­203(8)(a). “The purpose of such imputation is to prevent parents from reducing their child support or alimony by purposeful unemployment or underemployment.” Connell v. Connell, 2010 UT App 139, ¶ 16, 233 P.3d 836 (quotation simplified). Accordingly, when imputing income, “the income shall be based upon employment potential and probable earnings considering,” among other things, “employment opportunities,” “work history,” and “occupation qualifications.” Utah Code § 78B-12­203(8)(b).

¶26      As explained above, the court calculated Blake’s income at $1,983 per month up until the time that the COVID-19 pandemic began in March 2020. And at trial, which was held in October 2020, the court concluded that due to the pandemic, “Blake’s income has come to a halt” and therefore determined it was “appropriate . . . to impute minimum wage income of $1,257/month from March 2020 forward.” But the financial documents submitted by Blake do not support the low amount of income the court chose to impute.

¶27      Blake’s bank records—which were all filed with the court—show that Blake made deposits into his personal account totaling $456,669.98 between August 2017 and January 2019. These deposits included a check for $200,000, which Blake testified “was for my services that was rendered” in connection with a high-publicity boxing match. And in addition to the deposits, Blake’s bank records show significant withdrawals. For example, the records indicate that Blake had regularly invested in cryptocurrency, had transferred over $15,000 to his mother, had transferred over $9,000 to the mother of one of his other children,[3] and had spent over $10,000 on luxury clothing.

¶28      Despite the evidence of Blake’s spending, Blake did not demonstrate how he was funding his lifestyle, and he claimed only one debt of $7,240 in the first of his three financial disclosures. In light of the foregoing, the district court’s determination that Blake was making no money and therefore should be imputed minimum wage is not supported by the evidence. Rather, the evidence suggests that Blake was less than forthcoming with the court as to the actual amount of his income. As such, on remand the court should reevaluate evidence of Blake’s finances, his earning capacity, and whether he is voluntarily underemployed and should make a further determination as to whether greater income should be imputed to him.[4] In so doing, the court should take special care to ensure that the final award is void of mathematical error.

CONCLUSION

¶29      The district court abused its discretion when it awarded Smith sole physical and legal custody of Child while also ordering a joint decision-making arrangement with Blake. We therefore vacate the court’s custody ruling as it relates to the joint decision-making arrangement. The court also abused its discretion when calculating child support. The current award contains a mathematical error and is not supported by record evidence. Accordingly, we reverse the court’s award of child support and remand with instructions that the court reexamine the evidence to determine whether greater income should be imputed to Blake.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] Blake did not file a brief or otherwise appear in this appeal. Although “an appellee’s failure to file a brief does not amount to an automatic default and consequent reversal of the lower court,” our supreme court has recently recognized that such failure does impact the “typical burden of persuasion on appeal.” See AL-IN Partners, LLC v. LifeVantage Corp., 2021 UT 42, ¶ 19, 496 P.3d 76 (quotation simplified). Because an appellee’s failure to raise any argument leaves the appellant’s claims “unrebutted,” see Broderick v. Apartment Mgmt. Consultants, LLC, 2012 UT 17, ¶¶ 18–21, 279 P.3d 391, “when an appellee fails to present us with any argument, an appellant need only establish a prima facie showing of a plausible basis for reversal,” AL-IN Partners, 2021 UT 42, ¶ 19 (quotation simplified). We question whether the standard articulated in AL-IN Partners should apply the same way in cases such as this where the standard of review on appeal is deferential to the discretionary decisions of the district court. But because this issue was not briefed and our decision on both arguments presented ultimately involves the conclusion that the district court did abuse its discretion and committed other errors, we need not decide the issue today. However, we note the question does warrant additional consideration in a case where it is squarely before the court.

[2] In relevant part, the statute defines “joint physical custody” as when “the child stays with each parent overnight for more than 30% of the year.” Utah Code § 30-3-10.1(3)(a). This particular provision is not applicable here because Blake was awarded standard relocation parent-time which falls below the 30% threshold. See id. § 30-3-37. Nevertheless, Utah law is clear that “[e]ach parent may make decisions regarding the day-to-day care and control of the child while the child is residing with that parent.” Id. § 30-3-10.9(6). Thus, by statute Smith has sole decision-making authority over day-to-day decisions when Child is in her care. Likewise, Blake has decision-making authority over day-to-day decisions when Child is in his care.

[3] This amount does not include child support payments awarded to the mother, which were $1,000 per month. Those support payments were made directly to Nevada’s State Collection and Disbursement Unit.

[4] Smith filed a post-trial motion pursuant to rule 59(e) of the Utah Rules of Civil Procedure seeking to amend, among other things, the court’s child support award. The district court issued a Memorandum Decision and Order denying the motion. In analyzing the child support issue, the court stated that “[g]ifts are not generally considered income.” This is legally incorrect. As explained above, the Utah Code explicitly defines “gross income” as including “gifts from anyone.” See Utah Code § 78B-12-203(1). To the extent Blake was gifted items, the court must include the value of those gifts when calculating his income.

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Scott v. Benson – 2023 UT 4 – Fraudulent Voluntary Declaration of Paternity

2023 UT 4

IN THE

SUPREME COURT OF THE STATE OF UTAH

TAYLOR LYNN SCOTT,

Respondent,

v.

SARAH CATHERINE BENSON,

Petitioner.

No. 20210922

Heard October 3, 2022

Filed April 20, 2023

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake

The Honorable Richard D. McKelvie

No. 194903038

Attorneys:

Jeremy G. Jones, Jeffrey C. Jensen, Sandy, for respondent

Julie J. Nelson, Millcreek, Alexandra Mareschal, Salt Lake City,

for petitioner

ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the Court in

which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN, JUSTICE HAGEN, and

JUDGE REUBEN RENSTROM joined.

Having recused herself, JUSTICE POHLMAN did not participate;

DISTRICT COURT JUDGE REUBEN RENSTROM sat.

ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 Utah law permits parents to establish the paternity of their child by signing and filing a voluntary declaration of paternity (VDP) with the Office of Vital Records and Statistics. UTAH CODE §§ 78B-15-301-302. Sarah Benson and Taylor Scott, an unmarried couple, signed a VDP in which they both represented that Scott was the father of Benson’s child (Child). Problem was, Scott was not Child’s biological father, and both Scott and Benson knew that when they signed the VDP.[1]

¶2 After they submitted the VDP to the state, Benson continued to allow Scott to act as a father to Child, much as she had since Child’s birth. But she eventually cut off contact between Scott and Child. Scott filed a complaint, asserting he was Child’s father and asking the court for joint legal and physical custody. Benson challenged the VDP and asked the court to declare that Scott was not Child’s father.

¶3 The district court applied the Utah Uniform Parentage Act and concluded that the VDP should be set aside because of the parties’ fraud and a mutual mistake. See id. § 78B-15-307(1). But it also concluded that, under the Act, Scott should be adjudicated to be Child’s father. See id. § 78B-15-608. Benson appealed, and the court of appeals affirmed.

¶4 Before us, Benson argues that the court of appeals misinterpreted the Act because once the district court concluded that the VDP was the product of fraud and mistake, the Act did not provide a path for Scott to continue to assert that he should be deemed to be Child’s father.

¶5 We reject Benson’s reading of the Act and affirm.

BACKGROUND

¶6 Benson was pregnant with Child when she met and began dating Scott. Scott knew that Benson was pregnant with Child while they were dating and that he was not Child’s biological father.

¶7 But Scott attended Child’s birth and played a substantial role as a parental figure in Child’s life for the next seven years. Child’s biological father passed away shortly after Child’s birth.

¶8 During their dating relationship, Benson became pregnant with Scott’s biological child (Sibling). Before Sibling was born, Benson and Scott—who had never married—split up.

¶9 Because the couple never married, Utah law did not consider Scott to be Sibling’s “presumed father.” Benson initiated a paternity action, which established that Scott was Sibling’s biological father. See supra ¶ 31 n.7. Scott and Benson settled that action by agreeing to sign a voluntary declaration of paternity (VDP)—in which Scott acknowledged that he was Sibling’s father—and by obtaining an order that gave Scott joint custody of and required him to pay child support for Sibling.[2] Under their custody agreement, Scott enjoyed near-equal parent-time with Sibling.

¶10 Scott often cared for Child at the same time and in the same manner that he cared for Sibling. This pattern continued even after Scott married someone other than Benson.[3]

¶11 At some point, Benson was arrested and charged with driving under the influence. Benson pleaded guilty, and her driving privileges were suspended. For the next several months, Scott—at Benson’s request—was the primary caregiver to both Child and Sibling.

¶12 Benson suffered from mental health issues during this period. She wanted a plan to ensure that both of her children would be cared for if she were no longer around. This thinking culminated in Scott and Benson signing and submitting a VDP that represented to the state that Scott was Child’s biological father, even though both Scott and Benson knew that representation was false. The Office of Vital Records updated Child’s birth certificate to reflect Scott’s paternity.

¶13 For a year or so after signing the VDP, Scott and Benson maintained contact and shared parenting responsibilities for both children. Eventually Benson—who had married and whose husband wanted to adopt Child—cut off contact between Scott and Child.

¶14 Scott filed a paternity action, seeking to be declared Child’s legal father and asking for joint legal and physical custody of Child. Benson counter-petitioned, challenging Scott’s paternity and asking to have the VDP set aside.

¶15 The district court treated Benson’s counter-petition as an action to invalidate the VDP under the Utah Uniform Parentage Act. The Act provides that a VDP can be challenged because of fraud, duress, or material mistake of fact. UTAH CODE § 78B-15-307. Benson also filed a motion asking the court to compel Scott to submit to genetic testing, which she asserted would demonstrate that Scott was not Child’s biological father.

¶16 Scott agreed that a genetic test would prove he was not Child’s biological father, and the parties stipulated to that fact. But Scott asked the court to disregard the biological reality under section 608 of the Act—a provision that allows a court to disregard genetic test results in certain circumstances.[4]

¶17 Benson moved for summary judgment and asked the court to set aside the VDP because the parties had made a “material mistake of fact,” a term statutorily defined to include situations in which “genetic test results . . . exclude a declarant father.” Id. § 78B­15-307(5). Benson’s motion also asked the court to find that Scott and Child did not have a father-child relationship because the VDP had been “successfully challenged.”

¶18 The court denied the motion, reasoning that, even though genetic test results would show Scott was not Child’s father, there was no “mistake” because both parties knew Scott was not Child’s biological father when they signed the VDP, and because they “chose at the time to jointly raise a child.”

¶19 After denying Benson’s summary judgment motion, the court held a three-day evidentiary hearing. The district court found that Scott and his witnesses were “generally credible” and that Scott’s description of his relationship with Child was “particularly credible.” The court found that Benson’s own testimony was also “generally credible” but rejected her testimony regarding some aspects of Scott and Child’s relationship.

¶20 The district court reversed the reasoning it had employed to deny summary judgment and concluded that the parties had been operating under a “material mistake of fact” when they signed the VDP. The court also found that Scott and Benson did not defraud each other but that the VDP was still the product of fraud because it committed “fraud against the Utah State Division of Vital Statistics.” The district court determined that the VDP should be set aside and that it was void ab initio and had “no legal force or effect.”

¶21 The district court also accepted the parties’ stipulation that Scott was not Child’s biological father as the “genetic testing” the Act references. The district court also accepted that this “testing” confirmed Scott was not Child’s biological father.[5]

¶22 But the district court ultimately determined that Scott was Child’s legal father, reasoning that its conclusion that the VDP should be set aside “draws the court to [section 608].” The court determined that Benson’s conduct estopped her from denying Scott’s parentage and that it would be inequitable to disrupt Scott and Child’s relationship. The district court also concluded that, after a review of the factors in section 608, it was in Child’s best interest for Scott to be Child’s legal father. The court found that Scott “played a substantial role in [Child’s] life for the first seven years of [Child’s] life, and that role was involuntarily terminated” by Benson. The court also found that “[t]here is and has been a strong bond and attachment between [Scott] and [Child], and there has been since [Child’s] birth.”

¶23 Benson appealed to the court of appeals, which upheld the district court’s ruling. Scott v. Benson, 2021 UT App 110, ¶ 1, 501 P.3d 1148. Like the district court, the court of appeals concluded that Scott was Child’s legal father even though Benson successfully challenged the VDP under section 307 of the Act. See id. ¶¶ 31–32. But, unlike the district court, the court of appeals reasoned that a successful 307 challenge did not render the VDP void from its inception. Id. ¶ 40. The court of appeals instead held that a successful 307 challenge meant that a VDP could be “set aside, on a going-forward basis,” but only as long as section 608 “does not counsel otherwise.” Id. And it concluded that section 608 did not demand a different conclusion than the one the district court reached. See id. ¶¶ 40, 43.

¶24 Benson petitioned for certiorari review contending that the court of appeals misinterpreted the Act.

STANDARD OF REVIEW

¶25 “We review questions of statutory interpretation for correctness, affording no deference to the lower court’s legal conclusions.” Cardiff Wales, LLC v. Washington Cnty. Sch. Dist., 2022 UT 19, ¶ 16, 511 P.3d 1155 (cleaned up).

ANALYSIS

¶26 Benson first claims that the court of appeals wrongly opined that the Act permitted the district court to conduct a section 608 analysis after it concluded that the VDP was fraudulent and based on a material mistake of fact. According to Benson, the court of appeals erred because once a VDP is successfully challenged, the court’s analysis should end in favor of the challenger. Benson also claims that the court of appeals’ interpretation of the statute raises constitutional issues, leads to absurd results, and promotes bad policy.

I. THE COURT OF APPEALS DID NOT ERR WHEN IT APPLIED
SECTION 608 TO DISREGARD THE GENETIC TEST RESULTS

A. The Court of Appeals Correctly Upheld the District Court’s
Decision to Apply Section 608

¶27 Benson first argues the court of appeals incorrectly upheld the district court’s decision to set aside the genetic test results that showed that Scott was not Child’s biological father.[6] Benson argues that section 608 “does not apply to every proceeding commenced under 307” and that, in this case, section 608 “has no application that is consistent with the language of the statute.”

¶28 The Act outlines two ways a VDP can be set aside. It allows either of the signatories to rescind a VDP by filing a voluntary rescission within sixty days of the date the VDP became effective or before “the date of notice of the first adjudicative proceeding to which the signatory is a party, before a tribunal to adjudicate an issue relating to the child, including a proceeding that establishes support,” whichever is earlier. UTAH CODE § 78B-15-306(1). If neither signatory rescinds the VDP—as in this case—they must look to section 307 to challenge the VDP.

¶29 Section 307 provides:

After the period for rescission . . . has expired, a signatory of a declaration of paternity or denial of paternity, or a support-enforcement agency, may commence a proceeding to challenge the declaration or denial only on the basis of fraud, duress, or material mistake of fact.

Id. § 78B-15-307(1).

¶30 In other words, after the VDP has been signed, either of the signatories can rescind it before the earliest of sixty days or notice of an adjudicative proceeding. Id. § 78B-15-306(1). After the statutory rescission period passes, either a signatory or a support-enforcement agency can challenge the validity of the VDP. This challenge can be based on fraud, duress, or material mistake of fact. Id. § 78B-15­307(1). A challenge based on fraud or duress can be brought at any time. Id. § 78B-15-307(3). A challenge based on material mistake of fact can only be brought within four years after the declaration is filed. Id. § 78B-15-307(4).

¶31 The Act also contemplates that, in some situations, a court can ignore genetic test results when determining paternity. Id. § 78B­15-608. Section 608 permits the district court to do this when “the conduct of the mother or the presumed or declarant father estops that party from denying parentage” and “it would be inequitable to disrupt the father-child relationship between the child and the presumed or declarant father.” Id. § 78B-15-608(1).[7]

¶32 Subsection 608(2) outlines factors a court must consider to determine whether disregarding test results is in the best interest of the child. These factors include how long a presumed or declarant father acted as a child’s father, the nature of the relationship between the child and potential father, and harm to the child if the relationship between the child and potential father is disrupted.[8]

¶33 Benson argues that the court of appeals misread the statute when it endorsed the district court’s decision to conduct the section 608 analysis after it set aside the VDP under section 307. She claims that genetic testing, and therefore section 608, is “irrelevant” to this inquiry “because the ground to set aside the VDP was already established: fraud.” In Benson’s view, the district court starts with the section 307 inquiry and cannot look to section 608 if the court finds that the VDP is the product of fraud, duress, or mistake of fact.

¶34 The court of appeals disagreed with Benson’s argument and held that the district court appropriately applied section 608 because, while other provisions of the Act state when the VDP should be considered “invalid from its inception,” section 307 does not. Scott v. Benson, 2021 UT App 110, ¶¶ 34, 37–38, 501 P.3d 1148. The court of appeals concluded the central question was about “the consequence of a successful Section 307 challenge.” Id. ¶ 36. The court of appeals determined that “the Act’s silence on this point must be viewed in tandem with the specific instructions” given for successfully voiding or rescinding a VDP in other sections of the Act. Id. ¶ 38.

¶35 The court of appeals reasoned that “there is no statutory basis for concluding that a declaration of paternity is void simply because a Section 307 challenge is successful.” Id. ¶ 32. The court of appeals therefore concluded that a district court may look to section 608 to decide whether to disregard genetic testing even after the district court finds a ground to set the VDP aside under section 307.

¶36 In other words, the court of appeals sees the process to challenge a VDP as requiring two steps. In the first step, the district court examines the VDP under section 307 and determines if a challenge to its validity is successful. Id. ¶ 40. If the challenge is successful, the district court moves to step two and applies section 608 to assess whether principles of equity and estoppel should prevent the court from allowing the declaration to “be set aside, on a going-forward basis.” Id. Benson also appears to see this as a two-step process, but she reads the Act to end the inquiry after the first step if the section 307 challenge is successful.

¶37 The aim of statutory interpretation “is to ascertain the intent of the legislature,” and the “best evidence of the legislature’s intent is the plain language of the statute itself.” Castro v. Lemus, 2019 UT 71, ¶ 17, 456 P.3d 750 (cleaned up). We “read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters.” State v. Barrett, 2005 UT 88, ¶ 29, 127 P.3d 682 (cleaned up). Occasionally, “statutory text may not be plain when read in isolation, but may become so in light of its linguistic, structural, and statutory context.” Bryner v. Cardon Outreach, LLC, 2018 UT 52, ¶ 12, 428 P.3d 1096 (cleaned up).

¶38 When we read the statute’s plain language, we see a different structure than Benson and the court of appeals did. The Act does not contemplate the sequential inquiry that the court of appeals describes and that Benson wants. Rather, when a party challenges a VDP, the Legislature intends that, in appropriate cases, the section 608 factors be considered as part of the question of whether the VDP should be invalidated.

¶39 Section 308, titled “Procedure for rescission or challenge,” sets forth the procedure a court must employ to decide whether to set aside a VDP. UTAH CODE § 78B-15-308. Among the instructions section 308 provides to the district court is the mandate that a “proceeding to rescind or to challenge a declaration of paternity or denial of paternity must be conducted in the same manner as a proceeding to adjudicate parentage under Part 6, Adjudication of Parentage.” Id. § 78B-15-308(4) (emphasis added).

¶40 This means that when Benson challenged the VDP under section 307, the procedure to challenge the VDP had to be conducted in the same manner as adjudication of parentage under Part 6.[9] And, under Part 6, section 608, a district court can ignore genetic test results in appropriate circumstances. Thus, by section 308’s plain language, the court must follow the procedures of Part 6, which, in appropriate cases, incorporates the section 608 analysis into a proceeding challenging a VDP’s validity. This causes us to read the statute as calling for a single-step rather than a two-step inquiry.[10]

¶41 This reading resolves the first problem that Benson identifies. Benson claims that the district court erred (and the court of appeals erred in blessing the district court’s decision) because it looked to section 608’s factors after it concluded that the VDP was the product of mutual mistake and fraud on the state. Benson claims that the district court should not have moved to “step two” (a section 608 analysis), because the inquiry ended after “step one” (a conclusion under section 307 that the VDP was the product of fraud and mutual mistake)[11]

¶42 That problem does not arise when the statute is read correctly. A district court conducts a proceeding on a section 307 challenge in the same manner it conducts a proceeding on a challenge to paternity. Thus, in a proceeding challenging a VDP, the court can consider whether or not to set aside genetic testing based on the factors in section 608, just as it could in a proceeding to challenge paternity.[12]

B. Benson’s Argument that the Court of Appeals’ Reading Creates a
Conflict with Other Provisions of the Act Is Unavailing

¶43 Benson next argues that the court of appeals erred because its reading of the statute creates a conflict between section 608 and section 617.[13]

¶44 Section 617 states:

The tribunal shall apply the following rules to adjudicate the paternity of a child:

The paternity of a child having a presumed, declarant, or adjudicated father may be disproved only by admissible results of genetic testing excluding that man as the father of the child or identifying another man as the father of the child.

Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man identified as the father of a child under Section 78B-15-505 must be adjudicated the father of the child, unless an exception is granted under Section 78B-15-608.

. . . .

(4) Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man properly excluded as the father of a child by genetic testing must be adjudicated not to be the father of the child.

UTAH CODE § 78B-15-617.

¶45 Benson argues that Scott was “properly excluded” as Child’s father and therefore must “be adjudicated not to be the father of the child” without the section 608 analysis, because subsection 617(2) mentions section 608, and subsection 617(4) does not. Id. § 78B-15­617.

¶46 The court of appeals “acknowledge[d] the apparent inconsistency between subsections (2) and (4) of Section 617,” but held that, if they followed Benson’s interpretation, “Section 608— which exists only to give courts an opportunity to disregard genetic evidence in appropriate circumstances—would be effectively excised from the Act.” Scott, 2021 UT App 110, ¶ 38 n.9. Because the court did “not perceive therein a legislative intent to abrogate Section 608,” it held that Benson’s reading was unpersuasive. Id.

¶47 We see neither the conflict Benson perceives nor the inconsistency the court of appeals described. Section 617(2) refers to “a man identified as the father” and requires that a man whom genetic testing identifies as the father must be adjudicated the father unless the district court disregards the test results under section 608. UTAH CODE § 78B-15-617(2).

¶48 Section 617(4) refers to a man “properly excluded as the father of a child by genetic testing.” Id. § 78B-15-617(4). That subsection also provides that a man properly excluded by genetic testing must be adjudicated to not be the father. Id. Although subsection 617(4) does not explicitly reference section 608, it does so implicitly by referring to a man “properly excluded” by genetic testing. A man is not “properly excluded” by genetic testing if the district court disregards that testing under section 608.

¶49 Here, Scott was identified as the non-genetic father. But he was not “properly excluded as the father” of Child because the genetic testing in this case was set aside as the statute contemplates. There is no conflict between sections 608 and 617.

II. BENSON’S CONSTITUTIONALITY, ABSURDITY, AND PUBLIC POLICY RGUMENTS DO NOT DICTATE A DIFFERENT RESULT

¶50 For her next set of arguments, Benson strays from the text and contends that we should reject the court of appeals’ interpretation because it raises constitutional issues, leads to absurd results, and is contrary to public policy.

A. Benson Has Not Demonstrated that the Court of Appeals’ Reading

of the Statute Raises Constitutional Concerns That Require

a Different Interpretation

¶51 Benson contends that the court of appeals interpreted the Act in a way that raises constitutional concerns. She further argues that the court of appeals’ reading of section 608 is one that “allows a legal and genetic stranger to take advantage of its provisions” and thus “diminish[es] a mother’s fundamental right to ‘direct the upbringing of [her] children,’” (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). Benson asserts that we should apply the constitutional avoidance canon and reverse the court of appeals.

¶52 The constitutional avoidance canon permits a court to “reject[] one of two plausible constructions of a statute on the ground that [one interpretation] would raise grave doubts as to [the statute’s] constitutionality.” Utah Dep’t of Transp. v. Carlson, 2014 UT 24, ¶ 23, 332 P.3d 900. But when we can, we “decide cases on the preferred grounds of statutory construction, thereby avoiding analysis of underlying constitutional issues unless required to do so.” Id. ¶ 24 (cleaned up).

¶53 Moreover, we do not usually invoke the canon just because we have “doubts about the constitutionality” of a statute. Id. ¶ 25. Nor can we use the canon to “break faith with the statute’s text” and “rewrite the statute” to save an unconstitutional statute. State v. Garcia, 2017 UT 53, ¶ 59, 424 P.3d 171. We simply recognize that where there are two plausible constructions of a statute, and one steers clear of constitutional problems, we presume that the Legislature intended to enact the constitutional interpretation.[14] See Carlson, 2014 UT 24, ¶ 23.

¶54 We take Benson’s point that the Act has the potential to tread into constitutional territory. This court has recognized that “parents have a fundamental right to make decisions concerning the care and control of their children.” Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶ 73, 250 P.3d 465. Section 608, in which the Legislature provides a path to declare a person who is not genetically related to the child a parent, has the potential to compromise the genetic parent’s constitutional right.

¶55 But Benson does not offer us a plausible reading of the Act that avoids the potential constitutional concern. Instead, Benson’s proffered solution is to read the Act so that section 608 does not apply to most non-biological fathers. This would require us to rewrite the statute, something that we cannot do.

¶56 Where Benson cannot offer a plausible interpretation of the text that avoids the constitutional concern, Benson’s obligation is to demonstrate that the statute is unconstitutional. Benson has not made that argument.

¶57 That is not to say that we do not understand Benson’s concern. The Act allows someone who is not a genetic parent to gain parental rights and to potentially exercise them at the expense of the genetic parent’s rights. But Benson does not explain how, under the circumstance before us, this would violate her constitutional rights. She does not discuss the impact of her own role in seeking to defraud the State by conspiring to sign a VDP she knew was inaccurate. Nor has she analyzed the impact on her parental rights of permitting Scott to exercise parental-like rights for a number of years. Nor has she explained the impact of the district court’s unchallenged finding that it was in Child’s best interest to not set the VDP aside.

¶58 With neither a plausible interpretation of the statute that both adheres to the text and avoids the constitutional concerns, nor briefing aimed at demonstrating that sections of the Act should be struck as unconstitutional, we reject Benson’s challenges.

B. The Court of Appeals’ Interpretation Does Not Lead to Absurd Results in This Case

¶59 Benson asks us to employ the absurd consequences canon to overturn the court of appeals’ interpretation of the statute. According to Benson, holding that Scott was the “declarant father,” after the district court found the VDP was successfully challenged, leads to absurd results. As an initial matter, for the reasons we outline above, we do not agree that the VDP was “successfully challenged.” But even assuming we could accept that premise, the absurd consequences canon does not require a different interpretation. Benson claims, by way of example, that it would be absurd for a woman who was coerced into signing a VDP to have to endure a section 608 analysis where a district court would consider whether it was in the best interests of her child to set aside the VDP she was coerced to sign.

¶60 The absurd consequences canon allows us to “resolve an ambiguity by choosing the reading that avoids absurd results when statutory language plausibly presents us with two alternative readings.” Utley v. Mill Man Steel, Inc., 2015 UT 75, ¶ 47, 357 P.3d 992 (Durrant, C. J., concurring in part on behalf of the majority) (cleaned up). We conclude that statutory language yields absurd results when those results are “so overwhelmingly absurd no rational legislator could have intended them.” Id. ¶ 46.

¶61 Even if we can conceive of scenarios where the statute the Legislature enacted might produce an absurd result, we do not stray from the statute’s text in a case where the application of the Act in the case before us does not lead to an absurd result. See, e.g.State v. Sanders, 2019 UT 25, ¶ 54 n.13, 445 P.3d 453.

¶62 In Sanders, for example, we upheld Sanders’ conviction for illegal possession of a firearm. Id. ¶ 2. Sanders argued that the State’s proffered statutory construction—which did not leave room for an innocent possession defense—was absurd because there were circumstances where the application of that construction could yield an absurd result. Id. ¶ 51. We agreed with Sanders that it was “not difficult to conceive of factual scenarios where the lack of an innocent possession defense might lead to an absurd result,” such as a felon taking a gun from a toddler to place it safely out of reach. Id. ¶ 54. But the potential for an absurd result in a hypothetical case did not help Sanders, because this was “not the case before us.” Id. Sanders’ arguments were unavailing because they did not demonstrate absurd legislative policy or “that the application of that policy to [Sanders], under the circumstances presented [in that case], yielded an absurd result.” Id. ¶ 51.

¶63 As in Sanders, Benson does not meet her burden of demonstrating that the court of appeals’ statutory interpretation led to absurd results in her case. A rational legislature could have intended the result the district court ordered. At least, Benson has not convinced us that a rational legislature could not have intended that the district court look to the real-world effects on Child if it divested Scott of the parental relationship Benson had allowed to grow.

C. Benson’s Policy Arguments Do Not Allow Us to Ignore or Modify the Statute’s Text

¶64 Benson also advances policy arguments to support a different reading of the Act. Benson claims that conducting a section 608 analysis after a VDP is successfully challenged ignores “a statutory preference for genetic paternity” and would thereby “undermine[] the purposes and policies that form the basis of the comprehensive statutory scheme.”[15] She also claims this interpretation would encourage fraudulent VDPs, possibly at the expense of biological fathers.

¶65 When we can glean the Legislature’s intent from the statute’s text, we have no reason to entertain arguments that we might be able to enact better policy by placing judicial glosses on the text. We have advised that “[w]here the legislature has spoken[,] our role is limited. In the face of duly-enacted legislation we no longer have a primary policymaking role. We are left only to interpret the terms of the statute and then to implement them.” M.J. v. Wisan, 2016 UT 13, ¶ 69, 371 P.3d 21 (cleaned up). Benson may have legitimate policy concerns and may even be able to articulate a statutory scheme that better promotes public policy than the one on the books. But “we have repeatedly declined invitations to interpret statutes contrary to their plain language even when a party offers an interpretation that might better advance the Legislature’s purpose.” Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, ¶ 40, 506 P.3d 509. We do so again.

CONCLUSION

¶66 The court of appeals correctly concluded that the district court did not err when it looked to the factors in Utah Code section 78B-16-608 to disregard the genetic test results that would have excluded Scott as Child’s father.

¶67 We affirm the court of appeals’ decision and remand the case to the district court for further proceedings.

 

Utah Family Law, LC | divorceutah.com | 801-466-9277

[1] The record refers to the appellant as both Benson and Cooper— Cooper being the last name she took when she married. To remain consistent with the court of appeals’ opinion, we refer to the appellant as Benson.

[2] Utah Code section 78B-15-301 creates and authorizes the use of VDPs. Utah law permits the “mother of a child and a man claiming to be the genetic father of the child . . . [to] sign a declaration of paternity to establish the paternity of the child.” Id. The VDP must be signed or authenticated “under penalty of perjury, by the mother and by the declarant father.” Id. § 78B-15-302(1)(b). By signing, the mother and declarant father aver that “the child whose paternity is being declared: (i) does not have a presumed father, or has a presumed father whose full name is stated; and (ii) does not have another declarant or adjudicated father.” Id. § 78B-15-302(1)(d). The VDP is effective once it is “filed and entered into a database established and maintained by the Office of Vital Records.” Id. § 78B­15-302(9).

[3] Benson and Scott disagree on the extent to which Scott had equal parenting time with both Sibling and Child, but Benson’s brief concedes that Scott “continued to have a relationship with Child.”

[4] Under section 608, a court can disregard genetic test results that exclude a declarant father from genetic parentage if the behavior of one of the VDP signatories estops that party from denying parentage and if disrupting the child and declarant-father relationship would be inequitable. Id. § 78B-15-608(1). When a court decides whether to ignore genetic testing, the Act instructs it to focus on the child’s best interest by examining several factors, including the bond between the declarant father and child, and the potential harm to a child if paternity is disestablished. Id. § 78B-15-608(2).

[5] The Act provides a detailed description of what constitutes genetic testing. See id. § 78B-15-102(13). Notably, that definition does not include a stipulation concerning what the genetic tests would show had a test been performed. The district court nevertheless concluded: “Genetic testing has confirmed that Petitioner is not the biological father of [Child].” This conclusion was not directly challenged on appeal, so we do not address it further other than to emphasize that we explicitly offer no opinion on whether a stipulation can be the genetic testing the Act contemplates.

[6] Benson also argues that genetic tests were unnecessary because the parties agreed Scott was not Child’s biological father, so section 608, which only allows the court to set aside genetic testing (or deny a motion for testing), does not apply. But Benson does not directly challenge the district court’s conclusion that the stipulation qualifies as genetic testing for the purposes of section 608. Because Benson has not mounted a challenge to the district court’s conclusion, we accept, without comment, the district court’s decision that the stipulation was the equivalent of a genetic test. See supra ¶ 21 n.5.

[7] A “presumed father” must be someone who, at one point, was married to the mother. See id. § 78B-15-204(1) (defining when a man is a presumed father). Because Benson and Scott were never married, Scott is not and never was Child’s presumed father.

[8] The full list of factors is

(a) the length of time between the proceeding to adjudicate parentage and the time that the presumed or declarant father was placed on notice that he might not be the genetic father;

(b) the length of time during which the presumed or declarant father has assumed the role of father of the child;

(c) the facts surrounding the presumed or declarant father’s discovery of his possible nonpaternity;

(d) the nature of the relationship between the child and the presumed or declarant father;

the age of the child;

(f) the harm that may result to the child if presumed or declared paternity is successfully disestablished;

(g) the nature of the relationship between the child and any alleged father;

(h) the extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child; and

(i) other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed or declarant father or the chance of other harm to the child.

Id. § 78B-15-608(2).

 

 

[9] Although Benson sometimes references “section 307” in her briefs, it bears noting that section 307 does not outline what a party must show to successfully challenge a VDP. Rather, section 307 details the circumstances in which a party can bring a challenge after the sixty-day period has expired. Id. § 78B-15-307. Section 308 contains the Legislature’s instructions on how to proceed with a VDP challenge, and that section directs a court to proceed in the same manner as any other adjudication of parentage under Part 6.

[10] It is not difficult to envision why the Legislature would structure the statute this way. In many—if not most—cases, a party will use genetic test results to prove the fraud or mutual mistake of fact that could be used to set aside the VDP.

[11] The court of appeals also opined that a successfully challenged VDP “is subject to being declared ineffective on a forward-looking basis.” Scott, 2021 UT App 110, ¶ 31. The Act itself is largely silent on the effects of setting aside a VDP. We know that the Legislature told us that a declarant father whose VDP is rescinded cannot claw back child support he paid. See UTAH CODE § 78B-15-308(6) (“If the declaration is rescinded, the declarant father may not recover child support he paid prior to the entry of an order of rescission.”). And we know that the Legislature has declared that at “the conclusion of a proceeding to rescind or challenge a declaration of paternity, . . . the [court] shall order the Office of Vital Records to amend the birth record of the child, if appropriate.” Id. § 78B-15-308(5). But the Act does not tell us what other consequences might flow from setting a VDP aside. Since we don’t need to answer that question to resolve this case, we vacate the court of appeals’ conclusion that a successfully challenged VDP may be “ineffective on a forward-looking basis.” See Scott, 2021 UT App 110, ¶ 31. And we leave the question for a case where that determination matters to the outcome and is specifically briefed.

[12] Benson also argues that the district court erred when it applied section 608 because that section applies to declarant fathers, and “[o]nce the court granted [Benson’s section 307] challenge, Child was no longer a child ‘having a declarant father.’” Benson additionally claims that Scott was not a declarant father because subsection 201(2) of the Act, the provision on father-child relationships, means a successful VDP challenge disestablishes a father-child relationship. UTAH CODE § 78B-15-201(2). As we have explained, if the section 307 challenge is conducted in the same manner as a paternity determination—as the statute requires—the district court applies section 608 as part of the determination to set the VDP aside. And someone in Scott’s position does not lose his declarant father status unless the court invalidates the VDP.

[13] 13 Benson also argues that the court of appeals erred because the Act should be interpreted in light of the Act’s purported purpose— favoring the recognition of genetic parentage. Benson argues that the court of appeals’ interpretation of the statute “which would allow the signatory to a successfully challenged VDP to nonetheless rely on section 608, undermines the purposes and policies that form the basis of the comprehensive statutory scheme.” But we don’t normally interpret the statute in light of its supposed purpose when the plain text tells us how the Legislature intended the statute to operate. See Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, ¶ 31, 506 P.3d 509 (“In general, where a statute’s language is unambiguous and provides a workable result, we need not resort to other interpretive tools, and our analysis ends.” (cleaned up)). Sticking to the text helps us avoid “the peril of interpreting statutes in accordance with presumed legislative purpose” as “most statutes represent a compromise of purposes advanced by competing interest groups, not an unmitigated attempt to stamp out a particular evil.” Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 23 n.6, 248 P.3d 465. Thus, in a case like this, where the statutory language is plain, we have no need to start poking around the statute’s purposes in hopes of finding a gloss to put on the text.

 

[14] In State v. Garcia, for example, we employed the canon to choose between two interpretations of “unlawful user” in determining how to read a statute. We chose the interpretation that “comport[ed] better with the statute’s text” because following the text of the statute best “preserve[d] the legislative intent.” Garcia, 2017 UT 53, ¶ 61.

[15] We again note that we do not agree with Benson that the VDP had been “successfully challenged.” We nevertheless engage with the substance of her arguments.

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Are That there is a Bias Against Men/Fathers in Child Custody Disputes Just Whining?

Are claims that there is a bias against men/fathers in child custody disputes just whining?

No. Such claims are true and while the problem is slowly abating, it still needs to be actively addressed and remedied.

It’s not a knock on mothers when the undeniable bias against fathers in child custody disputes is acknowledged. While the discrimination against men/fathers is decreasing (in response to an uprising of a few brave fathers and their supporters who can afford to fight for years and spend literally hundreds of thousands of dollars in court against the discrimination), many courts (far too many) still get lazy when it comes to analyzing parental fitness and awarding sole or primary custody to the mothers by default. Ask any divorce or child custody attorney. It’s undeniable.

There are plenty of cases in which the mother is awarded sole or primary physical custody of their children because the father is clearly unfit to be awarded sole, primary, or even joint custody. When that happens, it’s the right thing to do. Obviously.

But for every one of those cases, there are too many where a good, loving, capable father who has clearly demonstrated he can exercise joint custody and that this will, at the very least, do the children no harm in comparison to a scenario in which he’s the noncustodial parent, is denied joint custody because the court simply cannot conceive of a father successfully exercising joint custody. Ask any divorce or child custody attorney. It’s undeniable.

To claim that allegations of abuse don’t hurt a father’s chances in the child custody dispute is to lie through one’s teeth! Have you experienced how ludicrously, scandalously easy it is to get a protective order against a man compared to getting a protective order against a woman? How easy it is to forever poison a father’s chances at joint custody once the mother merely accuses him of spousal and/or child abuse? Even when the father is never convicted of any kind of abuse-related crime? Ask any domestic relations attorney. It’s undeniable.

I have heard (but have yet to study) claims that courts are more likely to believe a father’s accusations of parental alienation against a mother than vice versa. I’m skeptical, but willing to see what the verifiable facts show. Given how often mothers do engage in parental alienation, I’m not surprised when fathers accuse mothers of it. And while I unequivocally acknowledge that some fathers falsely accuse mothers of parental alienation, I cannot agree that most fathers do so. I will acknowledge that falsely accusing a mother of parental alienation is a surprisingly effective way for an unfit father to distract attention from his failings (but ladies, fathers learned the power of making “the right” false accusations from being on the receiving end of them for so long—accept it).

I do not blame good mothers for the misconduct of bad fathers. Come to think of it, I do not necessarily blame bad mothers for the misconduct of bad fathers. My points are 1) that sole custody is not good for children who have two loving, fit parents who live in close enough proximity to each other to make joint custody feasible (the best parent is both parents); and 2) courts still have a long way to go to root out sexual discrimination against fathers in physical custody awards.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/How-often-does-one-parent-get-sole-custody-of-their-children-in-a-custody-case/answer/Eric-Johnson-311

 

 

My children’s father is a bum. Can he get 50/50 custody awarded?

The question is: I’m a stay at home mom, my BD is always working unreliable and inconsistent hours, he wants 50% custody of our son. Will he be granted 50%? His hours always vary from 4pm 7pm 9pm even 2am at times. 

Understand this: it’s not a matter of what you know to be the facts, it’s whether 1) you can prove the facts; and 2) persuade the court that these facts warrant or require that the court rule in your favor and as you want. 

The court cannot know what you know unless you can prove it to the court itself or persuade the court to believe what you say is true.  

Now if the father’s work schedule is not conducive to an equal physical custody schedule and you can prove that, the court will likely rule against a joint physical custody award. If you believe that all you have to do is tell the court, essentially, “The father’s work schedule is not conducive to an equal custody award,” your odds of succeeding on this issue are slim.* 

*But because you are the woman, there is an inexcusable possibility that the court might purport to find as a matter of “fact” that what you say is true—not because you proved it (you obviously didn’t prove it objectively or by a preponderance of the evidence) but because the court simply does not want to award equal custody, does not intend to award equal physical custody, and will look for any hooks upon which to hang that hat.  

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Im-a-stay-at-home-mom-my-BD-is-always-working-unreliable-and-inconsistent-hours-he-wants-50-custody-of-our-son-Will-he-be-granted-50-His-hours-always-vary-from-4pm-7pm-9pm-even-2am-at-times/answer/Eric-Johnson-311  

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Should I get sole custody of my children if the dad does not want custody?

Should I get sole custody of my children if their dad does not want to be involved with them? Or try to talk it out before I go through with it?

Your children deserve a loving, salutary relationship with both of their parents, so it is morally right to urge and encourage the father in this situation to love and care for his children. Yes, have that talk with the father. It’s pointless, however, to nag or try to guilt a father into loving and caring for his children when he doesn’t want to love and care for his own children. And it’s plain irresponsible and wrong to try to involve a father in his children’s lives if that father is a danger to the children, whether physically or emotionally/psychologically.  

But where a father is not abusive, not a danger to the life or health of his own children, it’s not a bad idea to leave the door open. One day Dad might wake up and want to walk through it for the children’s benefit. Leaving open the possibility does not, of course, mean that the children will be receptive to repairing (or in some cases forming) their relationship with their father, but why slam that door and nail it shut if you must not? Do unto others as you would have them do for you. Don’t needlessly deprive the children of an opportunity to bond with their father.  

That stated, this does not mean that you must ask the court for a joint child custody award. “Leaving the door open” does not require you treat Dad like an involved parent when he’s not. If Dad’s not around, not interacting with the children, not playing with them, bathing, feeding them, etc., not financially supporting the children, then there’s no good reason to act as though he is when the child custody awards are made. There’s no reason to “leave the door open” in a way that sets the kids up to have their hopes dashed and their hearts broken. If an absentee parent (father or mother) says that he or she recognizes the error of that absentee parent’s ways and wants to make amends, there must needs be a price to be paid by that parent. There will be hard words to hear from the other parent and child. He or she should expect caution and hesitancy, even skepticism, from the children and the other parent. There will be hard work and sacrifice ahead as well (and not just for Dad). Easier said than done. I get it. But if the children are willing to give Dad a second chance and he’s proven he can and wants to make good, it would be tragic and frankly inexcusable to deny the children that. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://parenttoparenttalk.quora.com/Should-I-get-sole-custody-of-my-children-if-their-dad-does-not-want-to-be-involved-with-them-Or-try-to-talk-it-out-befo?__nsrc__=4  

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Are there experts who can evaluate parental alienation for a custody case?

There are “expert” witnesses for virtually any and every issue in legal actions. 

Can judges be bamboozled by pseudo-scientific expert witnesses? Without question. 

Do some judges who know that the so-called expert witness’s testimony is pseudo-scientific bunk (or at least know that the opinion has dubious scientific grounding) yet justify the ruling the judge wants to make by citing to those pseudo-scientific opinions? Without question. 

So your question really should be, “Are there competent expert witnesses who can objectively prove my spouse/the other parent is alienating our child(ren) from me?” The answer to that question is, in my opinion, “no.” 

Other questions you should ask (and their answers, in my opinion): 

  • “Are there competent expert witnesses who can make a persuasive case for the argument that my spouse/the other parent is alienating our child(ren) from me?” The answer to that question is “yes.” 
  • “Are there incompetent expert witnesses who can make a persuasive case for the argument that my spouse/the other parent is alienating our child(ren) from me?” The answer to that question is “yes.” 
  • “Are judges generally receptive to the concept (much less the actual occurrence) of parental alienation, and are they generally willing to hold a parental alienator accountable?” The answer to that question is “Some judges will acknowledge that parental alienation exists, but even then the amount and quality of evidence needed to persuade a judge that parental alienation occurred or is occurring is very high, in many cases unobtainably high.” 
  • “Will proving the occurrence of parental alienation help me obtain court orders to protect my children from further alienation and psychological/emotional abuse?” The answer to that question is “maybe.” Some judges take a bizarre approach to proof of parental alienation, i.e., it is clear that [parent] has alienated the child(ren) from [other parent], but if I were to take the children away from the alienator or impose sanctions/restriction/monitoring/supervision on the alienator, then the alienated kids (who side with the alienator because they have been exploited and manipulated and abused) would suffer (i.e., suffer in the process of treating and reversing the alienation brainwashing and being restored to reality), so I am going to leave things be “for the sake of the children.” 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Are-there-experts-who-can-evaluate-parental-alienation-for-a-custody-case/answer/Eric-Johnson-311 

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Can I gain full custody if I’m bipolar?

I don’t want anything to do with my child’s father. Can I gain full custody if I’m bipolar? 

First, thank you for being so candid and blunt. This is a question that everyone on both sides of this issue have but that few have the guts to ask or have the guts to accept an equally blunt response. That stated, I will try to give you an answer in the same vein as your question: 

(Note: I cannot tell you whether there are any jurisdictions that treat bipolar disorder or other emotional or mental health conditions as absolute bars to consideration for legal or physical custody of children, but I can tell you what I know based upon the law of Utah, which is the jurisdiction where I’ve been practicing for the past 26 years) 

Now let’s talk about suffering from bipolar disorder. I’m amazed at the number of people who will say things to me like, “My child is autistic,” when the child has never been diagnosed by a competent mental health professional with autism. There are a lot of people will claim as fact that which they believe. This is often the case with personality disorders. I can’t tell you how many times people come to my office and say, “My wife has borderline personality disorder (BPD)” and “My husband is a narcissist and/or suffers from narcissistic personality disorder (NPD)” and “My spouse has bipolar disorder” without there ever being a diagnosis by a competent mental health professional. 

So, the first question we need to answer is whether you truly are bipolar or whether you and/or your spouse just believe you are.  

Next, if you are in fact bi-polar you need to determine whether your condition renders you dangerous to yourself and/or to others. By the way, this would be true of any serious mental health or serious personality disorder. If you are bipolar and or suffer other serious mental health problems, that doesn’t necessarily mean you are a danger to yourself or others. Many mental health and emotional disorders can be successfully treated with medication and/or counseling or therapy, so that someone with such a condition is no less fit as a parent than someone with a serious physical condition that is being successfully treated. 

Bottom line: merely suffering from bipolar disorder is not an absolute bar to being awarded sole or joint custody of a child. Without a showing that the bipolar disorder causes you to be a danger to yourself or to others (including your children, of course), evidence that you suffer from bipolar disorder (or other mental health or emotional disorders) is not enough to knock you out of the box. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/I-dont-want-anything-to-do-with-my-childs-father-Can-I-gain-full-custody-if-Im-bipolar/answer/Eric-Johnson-311  

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How easy is it to change your child’s last name?

I cannot answer this question as it applies in all jurisdictions, but I can answer the question as it applies in the jurisdiction where I practice divorce and family law (Utah): 

Here are the applicable Utah Code sections: 

42-1-1. By petition to district court — Contents. 

Any natural person, desiring to change his name, may file a petition therefor in the district court of the county where he resides, setting forth: 

(1) The cause for which the change of name is sought. 

(2) The name proposed. 

(3) That he has been a bona fide resident of the county for the year immediately prior to the filing of the petition. 

42-1-2. Notice of hearing — Order of change. 

The court shall order what, if any, notice shall be given of the hearing, and after the giving of such notice, if any, may order the change of name as requested, upon proof in open court of the allegations of the petition and that there exists proper cause for granting the same. 

42-1-3. Effect of proceedings. 

Such proceedings shall in no manner affect any legal action or proceeding then pending, or any right, title or interest whatsoever. 

That seems fairly easy, right? I agree, it does seem easy (it deceptively seems easy), and if all you needed to do was go by what the Utah Code says is required of you to get a name change, you’d be right. But for reasons I do not understand, there are many “unwritten rules” governing a name change in Utah, whether for an adult or a minor child. Otherwise stated, if all you did was: 

  • file a petition in the court stating: 
    • the cause for which the change of name is sought; 
    • the name proposed; 
    • that you or your minor child have/has been a bona fide resident of the county for the year immediately prior to the filing of the petition. 
  • schedule the hearing on the petition; 
    • prove three allegations that you were required to make in the petition; 
    • prove that there exists “proper cause” (whatever that means) for granting the petition for change of name; 

that should be all you need to do, according to the Utah Code. But if that is all you did, there is a good chance your petition would be denied. So what are the “unwritten rules” you need to abide by to get a name change for yourself or your minor child? A good place to find out is here: 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/How-easy-is-it-to-change-your-child-s-last-name/answer/Eric-Johnson-311  

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Why does paternity leave benefit everyone?

I’m not sure it does (and this comes from the father of four children himself). A little paternity leave would do no harm in most cases, but I’m not sure it confers any substantial or significant personal or societal benefits. 

Certainly I’m not against a father sharing the burdens and obligations and responsibilities of parenthood with the mother of the newborn child, particularly when the child is a newborn. 

But we’ve gone generations without paternity leave and no one ever wrung their hands over it as being a chronic or serious difficulty for families or for society at large. I see no evidence that a “lack” of paternity leave is or ever was a difficulty at all. 

With my children, I was not at home with them all day for 6 to 12 weeks after they were born, but I was with them every day, after I got home from work. There was a time when I would get home from my day job, and take care of the baby while my wife went to her job at night. My wife and I created such an arrangement so that our baby would not have to be in daycare. I don’t complain about being “denied” paternity leave, nor does my wife, nor do any of my children. Indeed, I have nothing to complain about. 

Fathers clearly do not need as much time off from work after their baby is born as many mothers may. I cannot identify any personal or societal need for paternity leave. Frankly, the concept of paternity leave equal to that of a mother’s maternity leave appears to me to be an effort: 

  • to make it appear that men are no different from women in the workplace;  

and 

  • to find an excuse for getting time off. 

Some argue that by granting fathers paternity leave it helps to put fathers and mothers in the workplace on a more level playing field when it comes too staying employed and//or being promoted (the idea being that if a man takes off as much time off of work as a woman does when a baby is born, then men who have children are seen as no more of an asset to the employer woman and/or just as much of a “liability” to the employer as women who have children). That’s not true. If paternity leave is designed to prevent men from having an advantage over women in the workplace, all that paternity leave would do is encourage employers to hire people who never have children. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/Why-does-paternity-leave-benefit-everyone/answer/Eric-Johnson-311 

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My ex is a nut job. I was served with court papers for paternity, child support, and custody for unnamed yet to be born child #1 & #2. Problem is I’m not pregnant. What do I do?

Thanks for the laugh. 

In 25 years of family law practice I’ve never heard of a man seeking custody of children (plural) that do not exist, nor have I ever heard of a man seeking custody of a child (let alone children (plural)) that were never even conceived. 

To answer your question generally, and without knowing in what jurisdiction you reside or where the paternity petition was filed (consult an attorney in the applicable jurisdiction—don’t try to handle this by yourself), you should be able to dispose of the petition easily by what is known as a motion for summary judgment, after being ordered by the court to have you tested to determine whether you are pregnant and then having the court determine, based upon the court-ordered test, that you are not pregnant. 

A motion for summary judgment is won when there are no disputed material facts, thus making a trial unnecessary. A motion for summary judgment (or whatever process or name it may be known by in your jurisdiction) that establishes you are not pregnant would prove there is no basis for a paternity action in the first place is why and how the court would then rule in your favor without having to prepare for or even go to a trial. 

Utah Family Law, LC | divorceutah.com | 801-466-9277  

https://www.quora.com/My-ex-is-a-nut-job-I-was-served-with-court-papers-for-paternity-child-support-and-custody-for-unnamed-yet-to-be-born-child-1-2-Problem-is-I-m-not-pregnant-What-do-I-do/answer/Eric-Johnson-311  

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Why is it difficult for a father to get child custody?

Why is it difficult for a father to get child custody?

Because there is a pernicious and false belief in far too many of the courts (not, notably, in society at large) that generally:

  1. mothers are better parents than fathers;

and thus

  1. children need the care of their mothers more than the care of their fathers;

and thus

  1. children should spend most of their time in the care of their mothers but have “a relationship” with their fathers by seeing them every other weekend, once a week, and on alternating holidays.

All other “reasons” for presuming that sole or primary custody of a child or children should be awarded to the mother derive from these three false premises, which premises/presumptions are extraordinarily difficult for a father to overcome, even if all he seeks is an award of joint equal child custody.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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What’s the difference between legal custody and physical custody?

Here’s a question many parents have: what is the legal definition of “joint legal custody” and “joint physical custody” in Utah when it comes to the custody of children? Is there are difference?

The answer:

“Legal custody” is not the same as “physical custody”.  Likewise, “joint legal custody” is not the same as “joint physical custody”.

Legal custody is the authority to decide matters in a child’s life, including (but not limited to) matters of health care, education, religious and moral upbringing, and the child’s overall well-being.

Physical custody is, in simple terms, the number of overnights a parent has with a child annually.

Joint physical custody. In Utah, a parent has “joint physical custody” of the child(ren) with the other parent if that parent has at least 111 overnights annually with the child(ren). Joint physical custody does not mean only 50/50 custody; while parents who share custody 50/50 are joint physical custodians, to be considered a “joint physical custodian” you must have the children overnight at least 111 overnights or more with the children annually.

See Utah Code § 30-3-10.1.  Definitions — Joint legal custody — Joint physical custody:

As used in this chapter:

(1)

(a) “Custodial responsibility” includes all powers and duties relating to caretaking authority and decision-making authority for a child.

(b) “Custodial responsibility” includes physical custody, legal custody, parenting time, right to access, visitation, and authority to grant limited contact with a child.

(2) “Joint legal custody”:

(a) means the sharing of the rights, privileges, duties, and powers of a parent by both parents, where specified;

(b) may include an award of exclusive authority by the court to one parent to make specific decisions;

(c) does not affect the physical custody of the child except as specified in the order of joint legal custody;

(d) is not based on awarding equal or nearly equal periods of physical custody of and access to the child to each of the parents, as the best interest of the child often requires that a primary physical residence for the child be designated; and

(e) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.

(3) “Joint physical custody”:

(a) means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support;

(b) can mean equal or nearly equal periods of physical custody of and access to the child by each of the parents, as required to meet the best interest of the child;

(c) may require that a primary physical residence for the child be designated; and

(d) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.

(4) “Servicemember” means a member of a uniformed service.

(5) “Uniformed service” means:

(a) active and reserve components of the United States Armed Forces;

(b) the United States Merchant Marine;

(c) the commissioned corps of the United States Public Health Service;

(d) the commissioned corps of the National Oceanic and Atmospheric Administration of the United States; or

(e) the national guard of a state.

Utah Family Law, LC | divorceutah.com | 801-466-9277

2019 UT 72 – Utah Supreme Court – Hinkle v. Jacobsen – standing to establish paternity

This opinion is subject to revision before final publication in the Pacific Reporter
2019 UT 72 – Utah Supreme Court – Hinkle v. Jacobsen
THERESA I. HINKLE, Appellee,
v.
KOREY D. JACOBSEN, Appellee,
and
JODY RHORER, Intervenor and Appellant.

No. 20180124
Heard February 22, 2019
Filed December 19, 2019

On Certification from the Court of Appeals

Third District, Salt Lake
The Honorable Andrew H. Stone
No. 124906297

Attorneys:
Theresa I. Hinkle, Salt Lake City, pro se
Colleen K. Coebergh, Salt Lake City, for appellee Korey D. Jacobsen
David Pedrazas, Wade Taylor, Salt Lake City,
for intervenor and appellant

JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.

JUSTICE PETERSEN, opinion of the Court:

INTRODUCTION

¶1 Jody Rhorer appeals the district court’s determination that he does not have standing to establish paternity of his biological daughter under the Utah Uniform Parentage Act (UUPA). But the district court also concluded that Rhorer had abandoned his paternity claim entirely, and Rhorer did not challenge this ruling in his opening brief. He has consequently waived the issue, and we dismiss his appeal.

BACKGROUND

¶2 Theresa Hinkle (Mother) and Korey Jacobsen (Husband) married in 2002 and then separated in 2005. In 2005, Mother and Rhorer engaged in a relationship during which a child was conceived and born. Because Mother and Husband were still married at the time the child was born, Husband is the child’s presumed father under the UUPA. See UTAH CODE § 78B-15-204(1)(a).

¶3 Mother and Husband began divorce proceedings in 2012. Rhorer intervened in the divorce proceedings, alleging that he is the biological father of the child. He filed multiple motions including one to establish himself as the child’s biological father and another for a determination of parentage. He asserted that he could establish his paternity with genetic test results.

¶4 After briefing and proceedings before the commissioner, the commissioner concluded that under the court of appeals’ interpretation of the UUPA in R.P. v. K.S.W., 2014 UT App 38, 320 P.3d 1084, Rhorer did not have statutory standing to assert his paternity because the child had a presumed father—Husband—and, under such a circumstance, only the mother and presumed father had standing to challenge paternity under the UUPA.

¶5 However, the commissioner noted the court of appeals’ statement in R.P. that

[a]lthough constitutional considerations might require further analysis in cases such as this—where the alleged father has an established relationship with the child—R.P. has not raised a constitutional challenge in the district court or on appeal. Accordingly, we leave for another day the issue of the constitutional implications of the UUPA’s standing limitations where the alleged father has an established relationship with the child.

Id. ¶ 7. In light of this language, the commissioner gave Rhorer the opportunity through a custody evaluation to develop facts relevant to whether the UUPA was unconstitutional as applied to him. The district court adopted the recommendation as a court order. The court order provided that Rhorer had no statutory standing to assert his paternity. Therefore, unless he could show “constitutional standing,” he could not move forward with his petition.

¶6 Rhorer proceeded with the custody evaluation in an attempt to establish “constitutional standing.” However, he never analyzed the results of the evaluation to make a legal argument that the UUPA was unconstitutional as applied to him. Rather, he filed a motion in which he asked the court to grant him “standing to pursue a claim for time-sharing with the minor child at time of trial.”

¶7 At a hearing before the commissioner on the custody evaluation and Rhorer’s motion, the commissioner directly requested briefing from Rhorer on any constitutional issues he sought to assert. The commissioner stated, “[I]t’s already the law of this case . . . that [Rhorer] wouldn’t have standing under the statute were it not for concerns about . . . protecting his constitutional rights, and so I’d like to have something that actually states the parties’ positions in writing . . . referring to any facts that are in the file.”

¶8 But Rhorer did not do this. Instead, he filed a reply brief in which he asserted he had already addressed the constitutional issues in other pleadings. But while Rhorer did make reference to the due process clause in some of his pleadings, he did not provide any analysis or argument as to why it required he have standing here.

¶9 The commissioner ultimately concluded that

[i]nasmuch as the issue before the Court . . . is whether the strict application of the [UUPA] is unconstitutional as applied to the facts of this case . . . the Commissioner cannot conclude that there exists a compelling reason to grant standing to [Rhorer] to assert his claim of parentage contrary to the provisions of Utah Code Ann. § 78B-15-607.

¶10 In light of the commissioner’s recommendation, in a December 21, 2016 order, the district court concluded that Rhorer “lacks standing to assert his parentage claim.”

¶11 Rhorer filed a belated objection to the commissioner’s recommendation and also moved to set aside the December 21, 2016 order. At a hearing on the objection before the district court, Rhorer’s counsel stated that Rhorer was not trying to take “this little girl away from [Husband],” but that he was “asking this Court to give him a relationship with the child.” Counsel added, “I’m asking this Court to admittedly break new ground . . . to say ‘[N]o, why can’t you have two fathers?’”

¶12 In a June 1, 2017 memorandum decision denying the motion to set aside, the district court found that Rhorer “asked th[e] Court to craft a remedy whereby he is ultimately granted limited parent-time with [the child], while not actually seeking custody of the child or challenging [Husband’s] status as [the child]’s presumed father.” The district court explained,

Ultimately, while Mr. Rhorer may have had a right at the time the biological mother and [Husband] sought a divorce to assert standing to challenge the child’s paternity and to rebut [Husband’s] paternity (assuming that Mr. Rhorer could mount a constitutional challenge to [Utah Code section 78B-15-607] as applied to him), he has plainly abandoned such a claim at this point.

The court noted that Rhorer had failed to “brief his theories of why Section 607 is unconstitutional as applied to him with adequate specificity to permit intelligent analysis.” Finally, the court concluded that Rhorer had not met his burden to demonstrate the statute’s unconstitutionality and that Rhorer “[did] not seek to rebut [Husband’s] paternity and [did] not seek to establish himself as the legal father” of the child, so he had no standing to challenge Husband’s status as presumed father.

¶13 Rhorer responded to the June 1, 2017 memorandum decision by filing a motion for amended findings and a new trial. At a hearing on the motion, Rhorer’s counsel walked back the request for dual fatherhood and explained that Rhorer still sought to establish paternity and rebut Husband’s status as the child’s presumed father.

¶14 The district court denied the motion in a November 14, 2017 memorandum decision. The court outlined the procedural history of the case and explained that “the only issue” was the “conclusion regarding the constitutional implications of the UUPA’s standing limitations.” The court noted again that “neither Mr. Rhorer’s written briefing nor his counsel’s oral argument focused on th[e] constitutional challenge” and that Rhorer’s counsel at the time “did not mount a constitutional challenge.” The district court then concluded that Rhorer had “accepted [Husband’s] parental rights” and “was merely asking this Court to take judicial notice of the bond he had formed with [the child] and find it sufficient to enter into a ‘multiple relationship’ of fathering.”

¶15 Rhorer then moved to set aside the November 14, 2017 memorandum decision under rule 60(b) of the Utah Rules of Civil Procedure. In this motion, for the first time, he briefed a constitutional argument asserting that section 78B-15-607 of the UUPA violates the Equal Protection Clause of the United States Constitution.

¶16 In a January 25, 2018 minute entry, the district court denied Rhorer’s motion. The district court reasoned that it seemed as if “Rhorer [wa]s seeking Rule 60(b)(6) relief simply to advance an entirely new legal argument, one that could have been raised and preserved during the multiple instances when this Court and the Commissioners considered the issue of who has standing to challenge a presumed father’s paternity under the [UUPA].”

¶17 Rhorer appeals these four district court orders.[1] We exercise jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).

STANDARD OF REVIEW

¶18 Standing is generally a mixed question of fact and law “because it involves the application of a legal standard to a particularized set of facts.” Alpine Homes, Inc. v. City of West Jordan, 2017 UT 45, ¶ 10, 424 P.3d 95 (citation omitted). However, “the question of whether a given individual or association has standing to request a particular relief is primarily a question of law.” Kearns— Tribune Corp. v. Wilkinson, 946 P.2d 372, 373 (Utah 1997). We review the district court’s “factual determinations” with deference. Id. at 373–74. But we give “minimal discretion” to the district court on “determinations of whether a given set of facts fits the legal requirements for standing.” Id. at 374.

ANALYSIS

¶19 Rhorer’s primary argument on appeal is that the UUPA is unconstitutional under the Equal Protection and Due Process Clauses of the United States Constitution. Husband argues that Rhorer did not preserve these arguments in the district court. As the procedural history above makes clear, Husband is correct.

¶20 But in a companion case issued today, Castro v. Lemus, we interpret the UUPA to grant standing to “a man whose paternity of the child is to be adjudicated.” 2019 UT 71, ¶ 51, — P.3d —. This statutory interpretation does not implicate Rhorer’s equal protection or due process concerns. Accordingly, Rhorer’s failure to preserve his constitutional arguments is moot because the constitutionality of the UUPA is no longer at issue.

¶21 However, we do need to determine whether Rhorer can benefit from any favorable change in the law as articulated in Castro. This hinges upon whether he waived any challenge to the district court’s determination that he abandoned his paternity claim.

¶22 In its June 1, 2017 memorandum decision, the district court noted that Rhorer had asked it “to craft a remedy whereby he is ultimately granted limited parent-time with [the child], while not actually seeking custody of the child or challenging [Husband’s] status as [the child’s] presumed father.” The court concluded that the “law clearly does not recognize the hybrid role proposed by Mr. Rhorer,” and determined that Rhorer no longer sought to rebut Husband’s paternity or to establish himself as the child’s legal father.

¶23 Further, in its November 14, 2017 memorandum decision, the district court concluded that Rhorer had “accepted [Husband’s] parental rights” and “was merely asking [the] Court to take judicial notice of the bond he had formed with [the child] and find it sufficient to enter into a ‘multiple relationship’ of fathering.”

¶24 In these rulings, the district court concluded that Rhorer had abandoned his pursuit of his constitutional standing argument by never briefing it. Further, the court found that Rhorer had abandoned his paternity claim altogether by instead pursuing dual fatherhood and shared parent-time and stating that he did not want to disrupt the relationship between the child and Husband.

¶25 Rhorer does not address these rulings in his briefing to us, other than making a conclusory statement that he did not abandon his paternity claim.[2] He did respond to [Husband’s] argument regarding waiver in his reply brief. But that is insufficient. “When a party . . . raises [an issue] for the first time in a reply brief, that issue is waived and will typically not be addressed by the appellate court.” State v. Johnson, 2017 UT 76, ¶ 16, 416 P.3d 443; see also Allen v. Friel, 2008 UT 56, ¶ 7, 194 P.3d 903 (“If an appellant fails to allege specific errors of the lower court, the appellate court will not seek out errors in the lower court’s decision.”); Webster v. JP Morgan Chase Bank, NA, 2012 UT App 321, ¶ 21, 290 P.3d 930 (“The reply brief, however, is reserved for ‘answering any new matter set forth in the opposing brief,’ not for making an argument in the first instance.”).

¶26 Accordingly, we can only hold that Rhorer waived any challenge to the district court’s conclusion that he had abandoned his paternity petition.

CONCLUSION

¶27 The district court found that Rhorer abandoned his paternity claim, and Rhorer did not challenge that finding on appeal. We therefore conclude that Rhorer waived any claim to challenge Husband’s presumed paternity. Accordingly, we dismiss his appeal.

Utah Family Law, LC | divorceutah.com | 801-466-9277

[1] Specifically, Rhorer challenges (1) the December 21, 2016 order; (2) the June 1, 2017 memorandum decision; (3) the November 14, 2017 memorandum decision; and (4) the January 25, 2018 minute entry.

[2] Specifically, Rhorer stated in his opening brief that he “never abandoned his claim to rebut [Husband’s] paternity in this matter and to seek custody of the minor child.” But this conclusory statement does not constitute a challenge to the district court’s repeated, specific conclusion that he had abandoned his paternity claim.

Rhorer did “technically appeal[]” the orders containing the district court’s conclusions about abandonment, but “technical compliance is not enough.” Utah Physicians for a Healthy Env’t v. Exec. Dir. of the Utah Dep’t of Envtl. Quality, 2016 UT 49, ¶ 18, 391 P.3d 148.

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2019 UT 71 – Utah Supreme Court – Castro v. Lemus – standing to establish paternity

This opinion is subject to revision before final publication in the Pacific Reporter
2019 UT 71 – Utah Supreme Court

OSCAR CASTRO, Appellant,
v.
MARI TERESA LEMUS, Appellee.

No. 20180094
Heard February 22, 2019
Filed December 19, 2019

On Certification from the Court of Appeals
Fourth District, Provo
The Honorable Lynn W. Davis
No. 174401943

Attorneys:[1]

Troy L. Booher, Julie J. Nelson, Michael J. Teter, Salt Lake City, Dustin A. Hardy, Orem, for appellant

Aaron M. Drake, Salt Lake City, for appellee

JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.

JUSTICE PETERSEN, opinion of the Court:

INTRODUCTION

¶1 Appellant Oscar Castro seeks to establish his paternity of a child born to Mari Teresa Lemus (Mother), who is married to another man (Husband). Castro contends that he is the biological father of the child. But because Mother was married when the child was born, the Utah Uniform Parentage Act (UUPA)[2] presumes that her husband is the child’s father. Castro filed a petition in the district court to rebut this legal presumption. The district court dismissed Castro’s paternity petition, applying court of appeals’ precedent to determine that Castro has no standing under the UUPA because the child was born during a marriage with a presumed father. See generally R.P. v. K.S.W., 2014 UT App 38, 320 P.3d 1084.

¶2 On appeal, Castro argues that the court of appeals’ interpretation of the UUPA is incorrect. Alternatively, he contends that if the UUPA does deny him standing, it is unconstitutional.

¶3 We conclude that section 78B-15-602 of the UUPA grants standing to Castro and the other persons and entities listed in that provision and that subsection 607(1) does not revoke that standing when the child has a presumed father. Accordingly, we reverse and remand.

BACKGROUND[3]

¶4 Mother married Husband in 2012. Early in the marriage, Husband traveled to Mexico to visit his mother, who had fallen ill. Because he was later unable to return to Utah, Mother would travel to and from Mexico periodically to be with Husband.

¶5 Mother and Husband separated two years later, and she returned to Utah while he remained in Mexico. Soon thereafter, Mother began dating Castro. Their relationship lasted approximately two years, during which time they conceived a child.

¶6 But in May 2016, Husband returned to Utah and he reconciled with Mother. The child was born to Mother in December that same year. Mother and Husband have remained married and neither spouse has ever initiated divorce proceedings. Mother and Husband allege that they have fulfilled all parental roles for the child since birth, and they desire to continue to do so free from Castro’s interference.

¶7 But Castro wants to establish himself as the child’s legal father. To do so, Castro filed a petition in the district court to challenge Husband’s presumed paternity; assert his own parentage; and establish custody, child support, and parent-time. In response, Mother filed a rule 12(b)(6) motion to dismiss for failure to state a claim. Relying on the court of appeals’ decision in R.P. v. K.S.W., 2014 UT App 38, 320 P.3d 1084, and its progeny, Mother argued that subsection 78B-15-607(1) of the UUPA denies Castro standing to challenge the presumption of paternity established under subsection 204(1)(a).

¶8 In his opposition to Mother’s motion to dismiss, Castro conceded that R.P. v. K.S.W. is binding upon the district court and limits standing as to who may challenge the presumption of paternity. But he argued that such a limitation violates his constitutional rights to procedural and substantive due process and equal protection.

¶9 Following a hearing on the motion to dismiss, the district court dismissed Castro’s paternity petition. Relying on court of appeals’ precedent, the district court reiterated that the UUPA purposefully subordinates the judiciary’s truth-seeking function to policy concerns about protecting a marriage from third-party challenges. The court also concluded that Castro had failed to overcome the presumption that the UUPA is constitutional.

¶10 Castro timely appealed from the district court’s final ruling on the motion to dismiss. The court of appeals certified the case to this court to review unsettled constitutional questions regarding the UUPA. We exercise jurisdiction under Utah Code section 78A-3-102(3)(b).

STANDARD OF REVIEW

¶11 “We review the grant of a motion to dismiss for correctness, granting no deference to the decision of the district court.” Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 14, 243 P.3d 1275. A rule 12(b)(6) motion to dismiss for failure to state a claim should be granted only if “assuming the truth of the allegations in the complaint and drawing all reasonable inferences therefrom in the light most favorable to the plaintiff, it is clear that the plaintiff is not entitled to relief.” Id. (citation omitted). “The interpretation and constitutionality of a statute are questions of law that we review for correctness.” Waite v. Utah Labor Comm’n, 2017 UT 86, ¶ 5, 416 P.3d 635.

ANALYSIS

¶12 Castro argues that the court of appeals has incorrectly interpreted the UUPA to deny standing to alleged fathers when the child is conceived or born during a marriage between the mother and another man who is legally presumed to be the child’s father. In the alternative, he argues that if we conclude the UUPA does deny him standing, the statute is unconstitutional for a number of reasons. Because we agree with Castro that the UUPA grants standing to alleged fathers in these circumstances, we do not reach his constitutional claims.

I. STATUTORY INTERPRETATION

¶15 The initial question before us is whether the UUPA grants standing to biological fathers—termed “alleged fathers”[4] in the statute—when another man is legally presumed to be the child’s father. Castro argues that the UUPA clearly grants him standing. Mother argues it clearly does not.

¶16 The court of appeals addressed this question in R.P. v. K.S.W., 2014 UT App 38, 320 P.3d 1084. In R.P., a married woman conceived a child during an extramarital affair. Id. ¶ 2. After she informed the alleged father of the pregnancy as well as her intent to remain married, the alleged father filed a petition to establish paternity. Id. Initially, the mother admitted that the alleged father was the child’s biological father, and they entered into a stipulated agreement regarding child support, parent-time, and joint legal custody. Id. ¶¶ 2–3. But when the alleged father later requested increased parent-time, the mother moved to set aside the agreement and dismiss the case, arguing, among other things, that the alleged father lacked standing to challenge the child’s paternity. Id. ¶ 3. The district court agreed that the alleged father lacked standing and dismissed the case. Id.

¶17 The court of appeals affirmed that ruling. Id. ¶¶ 1, 45. After analyzing the relevant statutory provisions, it concluded that they were ambiguous as to who had standing to rebut the presumption of paternity. Id. ¶¶ 15–17. So the court looked to the UUPA’s legislative history and policy objectives. Id. ¶¶ 18–26. Ultimately, the court of appeals concluded the UUPA denied standing to the alleged father to assert his paternity while the mother’s marriage to the presumed father remained intact. Id. ¶ 26.

¶18 This is a matter of first impression for this court. We conclude that the UUPA does grant an alleged father standing to assert his paternity, even where, as here, the child has a presumed father.

¶19 When interpreting a statute, our primary objective “is to ascertain the intent of the legislature.” Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (citation omitted). Because “[t]he best evidence of the legislature’s intent is the plain language of the statute itself,” we analyze that first. Id. (alteration in original) (citation omitted). In doing so, “[w]e read the plain language of the statute as a whole[] and interpret its provisions in harmony with other statutes in the same chapter and related chapters.” Miller v. Weaver, 2003 UT 12, ¶ 17, 66 P.3d 592. Accordingly, we begin by looking at the text of the UUPA.

¶20 The UUPA governs “determinations of parentage in this state.” UTAH CODE § 78B-15-103(1). “‘Determination of parentage’ means the establishment of the parent-child relationship,” id. § 78B-15-102(9), which is “the legal relationship between a child and a parent of the child,” id. § 78B-15-102(18). The term “[p]arent-child relationship” includes “the mother-child relationship and the father-child relationship.” Id. (internal quotation marks omitted).

¶21 Establishing the mother-child relationship is usually a straightforward matter because the mother has given birth to the child.[5] Id. § 78B-15-201(1)(a)(i) (establishing a mother-child relationship by “the woman’s having given birth to the child”). But because this is not the case for the father, Utah law creates a presumption that a married mother’s husband is the father of the child if the child is born during the marriage. See id. § 78B-15-204(1)(a). This presumption is rebuttable. A “[p]resumed father” is defined in the UUPA as “a man who, by operation of law under [s]ection 78B-15-204, is recognized as the father of a child until that status is rebutted or confirmed as set forth in this chapter.” Id. § 78B-15-102(20) (emphasis added) (internal quotation marks omitted).

¶22 When no presumption of paternity exists, Utah law recognizes other pathways to establish paternity. Under the UUPA, the father-child relationship can be established in a number of ways, including by a legal declaration of paternity (declarant father), an adjudication of paternity (adjudicated father), or adoption. See id. § 78B-15-201(2)(b)–(d).

A. Section 602—the UUPA’s Standing Provision

¶23 The UUPA explicitly identifies the parties with standing to maintain a proceeding to adjudicate the parentage of a child. Specifically, Utah Code section 78B-15-602, titled “Standing to maintain proceeding,” provides:

Subject to Part 3, Voluntary Declaration of Paternity Act, and Sections 78B-15-607 and 78B-15-609, a proceeding to adjudicate parentage may be maintained by:

(1) the child;

(2) the mother of the child;

(3) a man whose paternity of the child is to be adjudicated;

(4) the support-enforcement agency or other governmental agency authorized by other law;

(5) an authorized adoption agency or licensed child-placing agency;

(6) a representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, incapacitated, or a minor; or

(7) an intended parent under Part 8, Gestational Agreement.

¶24 Castro argues section 602 definitively answers the question before us. This specific standing provision explicitly grants standing to “a man whose paternity of the child is to be adjudicated.” Id. § 78B-15-602(3). An alleged biological father such as Castro arguably falls within this broad category, and he would therefore have standing to bring a paternity proceeding under the UUPA.

B. Section 607—Limitations in Proceedings in which the Child has a Presumed Father

¶25 If our analysis were to end here, the question of Castro’s standing would be straightforward. But the UUPA’s standing provision is expressly “[s]ubject to Part 3, Voluntary Declaration of Paternity Act, and Sections 78B-15-607 and 78B-15-609.” Id. § 78B-15-602. Mother argues that subsection 607(1) takes back some of the standing that section 602 grants. Subsection 78B-15-607(1) reads:

§ 78B-15-607. Limitation—Child having presumed father

(1) Paternity of a child conceived or born during a marriage with a presumed father, as described in Subsection 78B-15-204(1)(a), (b), or (c),[6] may be raised by the presumed father, the mother, or a support enforcement agency at any time before filing an action for divorce or in the pleadings at the time of the divorce of the parents.

¶26 Mother construes this language to mean that when a child is “conceived or born during a marriage with a presumed father,” paternity may be challenged only by the mother, the presumed father, or a support enforcement agency. In other words, she asserts that this provision takes away standing from the other persons and entities listed in section 602 when a presumed father exists (as described in subsections 204(1)(a), (b), and (c)).

¶27 In R.P., the court of appeals concluded that subsection 607(1) was ambiguous. 2014 UT App 38, ¶¶ 15–17. It identified two possible readings. Id. ¶ 16. Under the first reading, “[A]ll of the persons listed in section 602 have standing to challenge that child’s paternity at any time, except the presumed father and the mother, who may do so only prior to filing an action for divorce or in the divorce pleadings.” Id. Under the second reading, “[S]ection 607 limits the right to raise the child’s paternity to the two persons listed: the presumed father and the mother.”[7] Id. In support of this reading, the court found the language “[p]aternity . . . may be raised by . . . .” to signal a standing limitation. Id. ¶ 19 (quoting UTAH CODE § 78B-15-607(1)). But the court ultimately concluded both readings were plausible and looked to the UUPA’s legislative history and policy objectives to break the tie. Id. ¶¶ 18–26. Those sources persuaded the court to adopt the second interpretation, thus limiting standing under the UUPA to only the mother and presumed father when a presumed father exists. Id.

¶28 Castro disagrees with the interpretation of subsection 607(1) advanced by Mother and previously adopted by the court of appeals. He argues that section 602 identifies those with standing under the UUPA, and subsection 607(1) does nothing to alter that. Instead, he asserts that it merely establishes a deadline to challenge paternity if a mother and presumed father divorce, which applies only to the parties whose interests are adjudicated in the divorce proceeding: the mother, the presumed father, and a support enforcement agency.

¶29 As we outlined above, Castro is correct that section 602 is the UUPA’s specific standing provision. But because the standing provision is “[s]ubject to” three other parts of the UUPA, including section 607, the question presented here is whether subsection 607(1) operates to modify the standing granted in section 602.[8] We conclude that it does not.

¶30 First, subsection 607(1) never expressly limits standing. The section is titled “Limitation,” not “Standing Limitation.” And it contains no clear language limiting standing. It does not say: “If a child has a presumed father . . . only the mother, the presumed father, or a support enforcement agency may initiate a proceeding to adjudicate the parentage of that child.”

¶31 In contrast, another section of the UUPA does contain express language where the legislature intended to limit standing. Appearing just before the disputed provision, section 606 states that “[a] proceeding to adjudicate the parentage of a child having no declarant or adjudicated father may be commenced at any time. If initiated after the child becomes an adult, only the child may initiate the proceeding.” (Emphasis added.) This language unequivocally limits standing to the child once the child becomes an adult. In comparison, subsection 607(1) contains no such language.

¶32 Short of such unequivocal language, subsection 607(1) might have signaled a standing limitation if the first sentence ended after “enforcement agency,” to read: “Paternity of a child conceived or born during a marriage with a presumed father . . . may be raised by the presumed father, the mother, or a support enforcement agency.”

¶33 But the sentence does not end there. It goes on to direct when the three listed parties may raise the issue of paternity. Specifically, the language states that when a child was conceived or born during a marriage, and therefore a presumed father exists, the mother, the presumed father, or a support enforcement agency may raise paternity “at any time before filing an action for divorce or in the pleadings at the time of the divorce of the parents.” UTAH CODE § 78B-15-607(1). This timing directive becomes the substantive focus of the provision.

¶34 Ultimately, subsection 607(1) is silent as to the other persons and entities with standing under section 602—it does not set timing limitations for them, and it also does not speak to their standing. It simply does not address them at all. We do not read this silence to revoke the standing expressly granted to the persons and entities listed in section 602, which specifically addresses standing under the UUPA. Rather, we read subsection 607(1) to mean only what it expressly states: that the mother, the presumed father, or a support enforcement agency may raise the issue of paternity at any time, but if there is a divorce, they must raise it either before a divorce petition is filed or in the divorce pleadings.[9]

¶35 Second, looking at subsection 607(1) within the structure of the statute as a whole, it becomes even clearer that it should be read as a limitation on timing, not standing. Nearby sections with similar structures are titled “No limitation” or “Limitation,” and it is apparent that the word “limitation” refers to timing limitations within those provisions, not standing limitations.

¶36 For example, section 606 states:

§ 78B-15-606. No limitation—Child having no declarant or adjudicated father

A proceeding to adjudicate the parentage of a child having no declarant or adjudicated father may be commenced at any time. If initiated after the child becomes an adult, only the child may initiate the proceeding.

(Emphases added.)

¶37 The title “No limitation” must refer to timing—specifically that when a child has no declarant or adjudicated father, there is no limitation on when a paternity proceeding may be raised. It “may be commenced at any time.” Id. § 78B-15-606. “No limitation” cannot refer to standing, which is clearly limited in the second sentence to the child once he or she becomes an adult.

¶38 The other section cross-referenced in the standing provision, section 609(1), states:

§ 78B-15-609. Limitation—Child having declarant father

(1) If a child has a declarant father, a signatory to the declaration of paternity or denial of paternity or a support-enforcement agency may commence a proceeding seeking to rescind the declaration or denial or challenge the paternity of the child only within the time allowed under Section 78B-15-306 or 78B-15-307.

(Emphases added.)

¶39 As in section 606, “[l]imitation” here refers to timing limitations—specifically, those time limits established in sections 78B-15-306 and -307. Those sections appear in part 3 of chapter 15,[10] which deals with voluntary declarations or denials of paternity. See id. § 78B-15-301, -303. Section 306(1) allows a person to rescind a declaration or denial of paternity but only within two specified timeframes.[11] And section 307 provides that if a signatory or a support enforcement agency misses those deadlines, a proceeding to challenge the declaration or denial may be commenced “only on the basis of fraud, duress, or material mistake of fact.” Id. § 78B-15-307(1).

¶40 Thus, section 609(1) closes a potential loophole by applying the deadlines set out in subsection 306(1) for rescinding a declaration or denial of paternity to proceedings under the UUPA that involve a child with a declarant father. As in subsection 607(1), this makes sense based on principles of estoppel. If a man has either declared or denied that he is a child’s father, the UUPA gives him a period of time in which to rescind his declaration or denial of paternity, but it restricts his ability to do so after an adjudicative proceeding relating to the child (to which he is a party) has begun.

¶41 Looking now to the subsection at issue here, it is similarly structured. Section 607’s title refers to a “[l]imitation” for a certain type of paternity case:

  • 78B-15-607. Limitation—Child having presumed father

(1) Paternity of a child conceived or born during a marriage with a presumed father, as described in [s]ubsection 78B-15-204(1)(a), (b), or (c), may be raised by the presumed father, the mother, or a support enforcement agency at any time before filing an action for divorce or in the pleadings at the time of the divorce of the parents.

(Emphases added.)

¶42 When viewed together with sections 606 and 609, in which “limitation” clearly relates to the time within which the respective proceedings must be commenced, it becomes apparent that subsection 607(1) follows the same pattern. It functions like sections 606 and 609 to establish when certain persons with standing may commence a proceeding in certain types of cases (or, in the case of section 606, to establish that there are no time limitations). The common threads running through these time limits appear to be estoppel and equitable concerns.

¶43 Mother observes that when a child has a presumed father, the UUPA specifies that “[a] presumption of paternity . . . may only be rebutted in accordance with [s]ection 78B-15-607.” See id. § 78B-15-204(2).[12] She argues that this means section 607, rather than section 602, governs standing in paternity cases involving a presumed father. She is incorrect.

¶44 It is accurate that the UUPA provides that the presumption of paternity must be rebutted in accordance with section 607. See id. But this has nothing to do with standing. Section 607 as a whole directs when and how paternity may be rebutted.

¶45 We have focused on subsection 607(1) because its meaning is the primary point of dispute before us. But section 607 as a whole is made up of four subsections. As discussed, subsection 607(1) limits when the mother, the presumed father, and a support enforcement agency may commence a proceeding in the event of a divorce. It also establishes other rules applicable only to the mother, the presumed father, and a support enforcement agency in a proceeding under the UUPA. See id. § 78B-15-607(1).

¶46 And the other three subsections of section 607 establish guidelines generally applicable to proceedings under the UUPA. See id. § 78B-15-607(2)–(4). They are written in the passive voice, so they seemingly apply to all potential petitioners rather than a subset of them.

¶47 Subsection 607(2) states that when the child has a presumed father as described in subsection 204(1)(d),[13] “the presumption may be rebutted at any time if the tribunal determines that the presumed father and the mother . . . neither cohabited nor engaged in sexual intercourse with each other during the probable time of conception.”

¶48 Subsection 607(3) outlines how the presumption of paternity may be rebutted: either by (a) “genetic test results that exclude the presumed father”; (b) “genetic test results that rebuttably identify another man as the father . . .”; (c) “evidence that the presumed father and the mother of the child neither cohabited nor engaged in sexual intercourse with each other during the probable time of conception”; or (d) “an adjudication under this part.”

¶49 And finally subsection 607(4) states that “[t]here is no presumption to rebut if the presumed father was properly served and there has been a final adjudication of the issue.”

¶50 Contrary to Mother’s argument that section 607 governs standing under the UUPA when a child has a presumed father, these provisions do not relate to standing. They instruct potential petitioners on how and when they may rebut the presumption of paternity. For example, Castro states that he seeks to rebut Husband’s paternity under subsection 607(3)(c) by showing that Husband and Mother did not cohabitate or engage in sexual intercourse during the probable time of conception. Accordingly, he seeks to rebut Husband’s paternity in accordance with section 607, as required by subsection 204(2). This is irrelevant to whether he has standing.

¶51 Ultimately, the specific standing provision of the UUPA grants standing to “a man whose paternity of the child is to be adjudicated.” Id. § 78B-15-602(3). This seemingly includes Castro. We conclude that subsection 607(1) does nothing to alter section 602. It creates deadlines for the mother, presumed father, and support enforcement agencies in a divorce proceeding, but it is silent as to the others listed in section 602. And we do not interpret this silence to revoke the standing of any of the persons or entities listed in section 602.[14]

¶52 We conclude this is the better reading of the statute. But we need not go further to decide whether this is the plain and unambiguous meaning of the relevant provisions because, even assuming ambiguity existed, we would nevertheless adopt Castro’s interpretation due to the serious constitutional issues raised by Mother’s reading of the UUPA. See infra ¶¶ 53–60.

II. CONSTITUTIONAL AVOIDANCE

¶53 In this and the companion cases in which we also issue opinions today, alleged fathers have argued that if the UUPA denies them standing, it is a violation of their procedural and substantive due process rights and their right to equal protection under the state and federal constitutions. See Hinkle v. Jacobsen, 2019 UT 72, ¶ 19, — P.3d — (arguing that the UUPA violates the due process and equal protection clauses of the federal constitution); Olguin v. Anderton, 2019 UT 73, ¶ 18, — P.3d — (arguing that the UUPA violates alleged fathers’ procedural and substantive due process rights under the state and federal constitutions); Mackley v. Openshaw, 2019 UT 74, ¶ 2 n.2, — P.3d — (arguing that the UUPA violates alleged fathers’ state and federal procedural and substantive due process rights as well as principles of equal protection). In one companion case, the district court ruled that the UUPA violated the alleged father’s right to procedural due process. See Olguin, 2019 UT 73, ¶¶ 1, 9, 12.

¶54 We note that in R.P. v. K.S.W., the appellant did not raise any constitutional challenges to the UUPA. See 2014 UT App 38, ¶¶ 7, 44, 320 P.3d 1084. Accordingly, the court of appeals left “for another day the issue of the constitutional implications of the UUPA’s standing limitations where the alleged father has an established relationship with the child.” Id. ¶ 7.

¶55 However, parties are not required to invoke the canon of constitutional avoidance before we may consider it when interpreting a statute. State v. Garcia, 2017 UT 53, ¶ 52, 424 P.3d 171 (“[F]ailure to invoke the constitutional avoidance canon does not deprive us of the ability to employ that canon to interpret the statute.”). Indeed, “when statutory language is ambiguous—in that its terms remain susceptible to two or more reasonable interpretations after we have conducted a plain language analysis— we generally resort to other modes of statutory construction and seek guidance from legislative history and other accepted sources.” Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 15, 267 P.3d 863 (citation omitted) (internal quotation marks omitted). “The canon of constitutional avoidance is an important tool for identifying and implementing legislative intent.” Utah Dep’t of Transp. v. Carlson, 2014 UT 24, ¶ 23, 332 P.3d 900.

¶56 Under the canon of constitutional avoidance, courts may “reject[] one of two plausible constructions of a statute on the ground that it would raise grave doubts as to [the statute’s] constitutionality.” Id. This practice “reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that [the legislature], like this [c]ourt, is bound by and swears an oath to uphold the Constitution.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). Thus, in applying the canon of constitutional avoidance, we presume that “the legislature ‘either prefers not to press the limits of the Constitution in its statutes, or it prefers a narrowed (and constitutional) version of its statutes to a statute completely stricken’ by the courts.” Carlson, 2014 UT 24, ¶ 23 (quoting Richard L. Hansen, Constitutional Avoidance and Anti-Avoidance by the Roberts Court, 2009 SUP. CT. REV. 181, 186).

¶57 Castro argues that if subsection 607(1) denies standing to alleged fathers, it violates his state and federal constitutional rights to procedural due process, substantive due process, and equal protection.[15] The United States Supreme Court has recognized that the Fourteenth Amendment protects parents’ liberty interest “in the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 65 (2000). But the Supreme Court has stated that “the mere existence of a biological link” does not, in and of itself, merit substantial protection under the Due Process Clause. Lehr v. Robertson, 463 U.S. 248, 261 (1983). Instead, a biological link offers biological fathers “an opportunity . . . to develop a relationship with his offspring.” Id. at 262. If a biological father “com[es] forward to participate in the rearing of his child” and “accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship.” Id. at 261–62 (citation omitted). If he fails to do so, however, his interest in establishing such a relationship is not afforded the same constitutional protections. See id. at 262.

¶58 In the adoption context, we have affirmed that due process is satisfied if the Utah Code provides an unwed biological father with “a meaningful chance to preserve his opportunity to develop a relationship with his child.” In re Adoption of T.B., 2010 UT 42, ¶ 31, 232 P.3d 1026. The adoption code does this by providing that “an unwed natural father may acquire the right to consent to an adoption by satisfying certain statutory requirements,” including initiating a paternity proceeding. Id. ¶ 26.

¶59 But a construction of subsection 607(1) that denies standing to all alleged fathers[16] means that they have no opportunity to initiate a paternity proceeding or preserve their opportunity to develop a relationship with their children in any other manner. This interpretation of subsection 607(1) raises questions as to the UUPA’s constitutionality. The court of appeals recognized this in R.P. when it stated that “constitutional considerations might require further analysis in cases such as this—where the alleged father has an established relationship with the child.” 2014 UT App 38, ¶ 7.

¶60 Because of the serious constitutional questions raised by an interpretation of the UUPA that denies standing to all alleged fathers when a presumed father exists, we would be compelled to adopt Castro’s interpretation of the statute even if the relevant language were ambiguous.

CONCLUSION

¶61 We conclude that section 78B-15-602 of the UUPA grants standing to alleged fathers seeking to adjudicate their paternity, and nothing in subsection 607(1) revokes that standing. We overrule R.P. v. K.S.W., 2014 UT App 38, 320 P.3d 1084. And we reverse the district court’s dismissal of Castro’s paternity petition and remand to the district court for further proceedings.

Utah Family Law, LC | divorceutah.com | 801-466-9277

[1] Amicus Curiae attorneys are:

Sean D. Reyes, Att’y Gen., Andrew Dymek, Asst. Att’y Gen., Tyler R. Green, Solic. Gen., Stanford E. Purser, Deputy Solic. Gen., Salt Lake City, for State of Utah.

[2] The Utah Uniform Parentage Act is set out in Utah Code sections 78B-15-101 to -902.

[3] “On appeal from a motion to dismiss, we must accept the factual allegations in the complaint as true and view all reasonable inferences from them in the light most favorable to the plaintiff.” Pang v. Int’l Document Servs., 2015 UT 63, ¶ 3, 356 P.3d 1190 (citation omitted).

[4] “‘Alleged father’ means a man who alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined.” UTAH CODE § 78B-15-102(2).

[5] We note, however, that the mother-child relationship can also be established through a gestational agreement, adjudication, adoption, or an unrebutted presumption of maternity. See id. § 75B-15-201(1)(a)(ii)–(v).

[6] Under Utah Code section 78B-15-204(1), “[a] man is presumed to be the father of a child if”:

(a) He and the mother of the child are married to each other and the child is born during the marriage;

(b) He and the mother of the child were married to each other and the child is born within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a decree of separation; [or]

(c) Before the birth of the child, he and the mother of the child married each other in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce or after a decree of separation

. . . .

[7] In 2017, after R.P. v. K.S.W., 2014 UT App 38, 320 P.3d 1084, issued, the legislature amended subsection 78B-15-607(1) to also include “a support enforcement agency” as one of the parties allowed to challenge a child’s paternity “at any time before filing an action for divorce or in the pleadings at the time of the divorce of the parents.” So, in 2014, the court of appeals’ interpretation of subsection 607(1) limited standing to the mother and presumed father. See R.P., 2014 UT App 38, ¶ 26. Now, Mother’s similar interpretation of subsection 607(1) limits standing to the mother, presumed father, and a support enforcement agency.

[8] Mother has not argued that either of the other parts of the UUPA to which section 602 is subject—part 3 and section 609—affect standing here.

[9] The court of appeals was concerned that this reading allows

all other persons identified in section 602 to challenge the paternity of a child with a presumed father at any time but restrict[s] a challenge by the presumed father and the mother to any time prior to the filing of a divorce action or in the pleadings at the time of divorce.

R.P., 2014 UT App 38, ¶ 24. But for reasons of estoppel and finality, this timing limitation makes sense. Notably, if the mother and presumed father do not divorce, the UUPA places no time limit on them. But if they do divorce, the district court must adjudicate issues related to any children of the marriage—custody, parent-time, and child support—as part of that proceeding. The question of paternity precedes those issues. Subsection 607(1) requires those whose interests are to be adjudicated in a divorce proceeding to raise the issue of paternity either up front or never. In practice, this means that if either parent is dissatisfied with a court order regarding custody, parent-time, or child support, he or she cannot later collaterally attack that order by arguing for the first time that the husband is not really the child’s father. While the same estoppel concerns do not necessarily apply to support enforcement agencies, such agencies frequently intervene in divorce cases and their interests are adjudicated in those proceedings. So, the inclusion of support enforcement agencies in this provision promotes finality and consistency in divorce decrees.

[10] 10 We note that section 602 is “[s]ubject to Part 3” and sections 607 and 609. As we explain here, part 3 and section 609 are related, in that section 609 cross-references the deadlines established in part 3 of this chapter.

[11] 11 Subsection 306(1) permits a signatory to a declaration or denial of paternity to rescind that declaration or denial within the earlier of “60 days after the effective date of the declaration or denial,” or “the date of notice of the first adjudicative proceeding [relating to the child] to which the signatory is a party.”

[12] As Mother points out, this provision is also found in Utah Code subsection 30-1-17.2(4).

[13] Under subsection 204(1)(d), a man is presumed to be the child’s father if

(d) after the birth of the child, he and the mother of the child married each other in apparent compliance with law, whether or not the marriage is, or could be declared, invalid, he voluntarily asserted his paternity of the child, and there is no other presumptive father of the child, and:

(i) the assertion is in a record filed with the Office of Vital Records;

(ii) he agreed to be and is named as the child’s father on the child’s birth certificate; or

(iii) he promised in a record to support the child as his own.

[14] We acknowledge the court of appeals’ concern that permitting alleged fathers to challenge paternity could “discourag[e] the presumed father from staying married to the mother and assuming parental responsibilities for the child.” R.P., 2014 UT App 38, ¶ 24. However, we note that any limitation that subsection 607(1) imposes also applies in cases where there is no longer a marriage to protect. Subsection 607(1) applies when a presumption of paternity arises under subsections 204(1)(a), (b), or (c). Significantly, only subsection 204(1)(a) is limited to a situation where the child is born into an intact marriage. Under subsection 204(1)(b), the marriage was terminated before the child was born. UTAH CODE § 78B-15-204(1)(b) (“[The presumed father] and the mother of the child were married to each other and the child is born within 300 days after the marriage is terminated . . . .”). And subsection 204(1)(c) also includes marriages that have ended. Id. § 78B-15-204(1)(c) (“[B]efore the birth of the child, [the presumed father] and the mother of the child married each other in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or within 300 days after its termination . . . .”).

[15] The Due Process Clause provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.” U.S. CONST. amend. V. This guarantee was extended to the states through the Fourteenth Amendment. Id. amend. XIV, § 1 (“No state shall . . . deprive any person of life, liberty, or property, without due process of law.”). The Equal Protection Clause states that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Id.

[16] The UUPA appears to address the viability of a claim by an unwed biological father not through its standing provision, but through subsection 104(3), which states that a “court shall, without adjudicating paternity, dismiss a petition that is filed under this chapter by an unmarried biological father if he is not entitled to consent to the adoption of the child under [s]ections 78B-6-121 and 78B-6-122.”

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2019 UT 74 – Mackley v. Openshaw – Utah Supreme Court – denial of paternity

This opinion is subject to revision before final publication in the Pacific Reporter
2019 UT 74 – Mackley v. Openshaw – IN THE SUPREME COURT OF THE STATE OF UTAH

ADAM MACKLEY, Appellant,
v.
ADRIENNE OPENSHAW, Appellee.
COLTON BARNEY, Appellee,
v.
ADAM MACKLEY and ADRIENNE BARNEY, [1] Appellant and Appellee.

No. 20170001

Heard February 22, 2019
Filed December 19, 2019

On Certification from the Court of Appeals

Fourth District, Provo
The Honorable Darold J. McDade
Nos. 114402136 and 134400322

Attorneys:
Julie J. Nelson, Eric G. Maxfield, Timothy M. Bagshaw, Salt Lake City, for appellant Adam Mackley
Lorie D. Fowlke, Provo, Sara Pfrommer, North Salt Lake,for appellee Adrienne Openshaw
Ron D. Wilkinson, Orem, for appellee Colton Barney

JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUDGE HARRIS joined.
Having recused himself, JUSTICE PEARCE does not participate herein;

COURT OF APPEALS JUDGE RYAN M. HARRIS sat.

JUSTICE PETERSEN, opinion of the Court:

INTRODUCTION

¶1 Adam Mackley conceived a child with Adrienne Openshaw (Mother) while she was married to Colton Barney (Husband). Before the child’s birth, Mackley filed a paternity petition in the district court. Genetic testing, conducted after the child’s birth, established that the child was Mackley’s biological daughter. Husband later signed a voluntary denial of paternity, renouncing his paternity of the child. Despite this, Mother subsequently moved to dismiss Mackley’s petition, arguing that he lacked standing under the Utah Uniform Parentage Act (UUPA) to challenge Husband’s presumed paternity. Husband simultaneously commenced a separate action, petitioning the district court to declare him to be the child’s legal father. After extensive litigation in both cases, the district court permitted Husband to rescind the denial on the basis of mutual and unilateral mistake of fact. The court later granted Husband’s petition for declaratory judgment, which ultimately resulted in the dismissal of Mackley’s petition.

¶2 We are asked to determine, among other issues, whether the district court erred (1) in allowing rescission of the denial and (2) in holding that Mackley lacked standing to challenge Husband’s presumed paternity of the child.[2]

¶3 We conclude that Husband should not have been permitted to rescind the denial because any mistake went to the legal consequences of signing the document, not the facts forming the basis of it. The issue of Mackley’s standing is therefore moot. We reverse and remand.

BACKGROUND

¶4 Mother and Husband married in August 2010. In early 2011, Mother had a sexual relationship with Mackley and became pregnant. Before learning of the pregnancy, Mother told Husband about her relationship with Mackley and the couple separated. Although Mother moved out of the marital home, the couple remained married. When Mother subsequently discovered that she was pregnant, she and Husband knew there was a possibility that Mackley was the child’s biological father. Despite this, the couple reconciled and worked to mend the marriage.

¶5 After learning of the pregnancy, Mackley began paying prenatal child support to Mother. And he filed a paternity petition in district court before the child was born. Mackley did not name or serve Husband as a party in that case.

¶6 In her answer, Mother asked the district court to dismiss Mackley’s petition, stating that she was “not sure who the father is and [did] not remember telling [Mackley] that [the child] was his.” Mother then asked the court to allow her and Husband to start their family, declaring that Husband “kn[ew] the whole situation and want[ed] to take full responsibility of the child regardless of DNA.” But she noted that Mackley could take the legal steps to get a paternity test if he wanted and that they would “go from there” if he elected to do so.

¶7 The child was born in October 2011. Although present at the birth, Husband was not listed on the child’s birth certificate.

¶8 After the child was born, Mackley requested that a paternity test be conducted. Mother submitted herself and the child to genetic testing. The test results established a 99.99 percent probability that the child is Mackley’s biological daughter.

¶9 Soon after, Mother and Mackley stipulated to temporary orders addressing, among other things, custody, parent-time, and child support. Mackley began to exercise parent-time in December 2011. But increasing conflicts between Mother and Mackley over parent-time and the child’s medical care soon strained the relationship.

¶10 As part of the original stipulated temporary orders, Mother had agreed to add Mackley as the father on the child’s birth certificate. After some delay, Mackley repeatedly threatened to initiate court proceedings against her if she did not comply with the order. Mother eventually agreed to complete the necessary paperwork. Mackley completed and signed the applicable portion of a Voluntary Declaration of Paternity (declaration).[3] See UTAH CODE § 78B-15-302. He gave it to Mother, who took it with her to the Utah County Health Department. Husband accompanied Mother to provide emotional support.

¶11 At the health department, Mother signed the relevant portion of the declaration, in which she affirmed that “[Mackley] is the biological father of th[e] child” and that she was voluntarily providing the information “to formally declare the paternity of their child without obtaining a court order.” In addition, Mother affirmed that she “ha[d] been provided verbal and written notice of the legal consequences of and the alternatives to signing [the declaration].”

¶12 When an employee of the health department discovered that Husband was married to Mother, he was asked to sign a portion of the form. Husband had been unaware that he would be asked to sign any documents, but he complied. He signed a section of the form labeled in all capital letters: “DENIAL OF PATERNITY BY PRESUMED FATHER.”[4] In doing so, Husband affirmed, under penalty of perjury, “I am recognized as the ‘presumed father’[5] under Utah Law; however . . . I am NOT THE BIOLOGICAL FATHER OF THE CHILD ON PAGE ONE OF THIS DOCUMENT.” (Emphasis in original.) Like Mother, Husband also affirmed that he had “been provided verbal and written notice of the legal consequences of and the alternatives to signing this form.” Mackley was not informed that Mother had signed the declaration or that Husband had signed the denial.

¶13 Several months later at a pretrial hearing, the district court questioned why Mackley had not joined Husband in the case. Citing court of appeals’ precedent, the district court reasoned that Husband, the child’s presumed father, was likely an indispensable party. The court then decided to continue the hearing to allow time for the parties to investigate that issue.

¶14 Mother subsequently moved to dismiss Mackley’s paternity petition, arguing that he lacked standing to challenge the child’s paternity under the UUPA[6] and that he had failed to join an indispensable party, Husband, the child’s presumed father. In the alternative, Mother asked the district court to determine that Mackley lacked standing to assert his paternity of the child under the common-law test adopted in In re J.W.F. (Schoolcraft), 799 P.2d 710 (Utah 1990).

¶15 That same week, Husband petitioned for declaratory judgment in a separate case, asking the district court to declare that he is the child’s legal father and that Mackley therefore has no parental rights. In addition, Husband requested that the district court order his name to be substituted for Mackley’s on the child’s birth certificate, which would require Mackley to withdraw the declaration.[7] Husband, Mother, and Mackley are all parties to Husband’s case. Neither Mother’s motion to dismiss nor Husband’s petition for declaratory judgment mentioned that she had signed the declaration or that Husband had signed the denial.

¶16 The district court held a hearing for both cases. Because Husband had never been joined as a party to Mackley’s case, the court stayed Mackley’s paternity petition, pending resolution of Husband’s petition for declaratory relief (the case to which Mother, Husband, and Mackley were all parties). The court then orally declared that Husband, as the presumed father, was the child’s legal father and stated that its ruling would have res judicata effect on Mackley’s case.

¶17 After that hearing, Mackley discovered, for the first time, that Husband had signed the denial, which had the legal effect of denying Husband’s presumed paternity of the child. Based on this discovery, Mackley moved the district court for relief from judgment under rule 60(b) of the Utah Rules of Civil Procedure, arguing, among other things, that the denial constituted newly discovered evidence.

¶18 Without addressing Mackley’s rule 60(b) motion, the district court entered findings of fact, conclusions of law, and an order of declaratory judgment in Husband’s case. The order recognized Husband as the child’s legal father, determined that Mackley had no parental rights, and ordered Husband’s name to be substituted for Mackley’s on the child’s birth certificate and other legal documents.

¶19 The district court subsequently dismissed Mackley’s paternity petition. In doing so, the court struck the temporary orders, determined that Mackley lacked standing to file a paternity petition, and concluded that Husband was a necessary party who the court had determined was the child’s legal father.

¶20 Mackley appealed the district court’s rulings. The court of appeals then ordered the district court to hear and rule on Mackley’s rule 60(b) motion. After conducting a hearing, the district court granted Mackley’s motion for relief from judgment, ruling that the denial constituted newly discovered evidence. The court thus vacated both its order granting declaratory judgment in favor of Husband and its dismissal of Mackley’s paternity petition.

¶21 Several days before the district court issued its written order, Husband moved to rescind the denial. He argued that it should be rescinded based on material mistakes of fact and duress. After an evidentiary hearing, the district court granted Husband’s motion to rescind on the basis of mutual and unilateral mistake of fact. In particular, the court found that none of the parties were aware that Husband would be required to sign the denial and all three parties believed “the purpose of signing the form was to add [Mackley] to the birth certificate” and that “[n]one of the parties anticipated that signing the form would legally terminate [Husband’s] parental rights as the presumed father.” In support, the district court noted that the form does not indicate that by signing it, the presumed father is terminating his rights to the child.

¶22 Mother and Husband then moved the district court to reinstate its order for declaratory judgment in Husband’s case and its order of dismissal in Mackley’s case. The court granted the motions.

¶23 Mackley filed two notices of appeal with the court of appeals. He first appealed the district court’s December 21, 2016 order of dismissal entered in his case. He then appealed two orders entered in Husband’s case: the district court’s March 15, 2016 order rescinding the denial and its October 22, 2016 order reinstating declaratory judgment. On its own motion, the court of appeals consolidated the cases. That court later certified the consolidated case to us to resolve unsettled questions of constitutional law.

¶24 We exercise jurisdiction pursuant to Utah Code section 78A-3-102(3)(b).

STANDARD OF REVIEW

¶25 “The issue of mistake of fact involves factual determinations and conclusions of law. We review factual determinations for clear error and conclusions of law for correctness.” Deep Creek Ranch, LLC v. Utah State Armory Bd., 2008 UT 3, ¶ 10, 178 P.3d 886.

ANALYSIS

  1. MOTION TO STRIKE

¶26 Before addressing the merits of Mackley’s arguments, we must resolve a motion to strike portions of Mackley’s replacement brief filed by Husband and joined by Mother. In support, Husband and Mother note that in his opening brief to the court of appeals, Mackley did not include Husband on the caption or service list. When Mother’s attorney asked why Husband’s attorney had not been served a copy of the brief, Mackley responded by emailing one to him. Mackley then moved to amend the caption page and certificate of service, which the court of appeals granted. Husband requested that the court of appeals vacate that order, arguing that Mackley’s briefing contained more than “technical” errors because Mackley had not attached the relevant order from Husband’s case. According to Husband, this failure meant that Husband was not a party to the appeal and that the requested amendments could not cure that defect. The court denied Husband’s request to vacate its prior order.

¶27 After the court of appeals certified the consolidated case to us, we issued an order allowing the parties to submit replacement briefs. All of the parties did so.[8] Mackley’s replacement brief included Husband on the caption page and certificate of service. It also attached the relevant orders from Husband’s case as addenda. Husband and Mother acknowledge that Mackley corrected these procedural errors in his replacement brief, but they argue that doing so violated our replacement briefing order. That order stated that the parties could elect to submit replacement briefs “if the posture before the [s]upreme [c]ourt creates a material difference in the argument presented.” It went on to explain that the order should “not be construed to excuse compliance with otherwise-applicable principles or rules of appellate review (e.g., preservation in the trial court).”

¶28 We conclude that Husband and Mother have failed to demonstrate that they were prejudiced by any of Mackley’s alleged errors. After Mother’s counsel asked why Husband’s counsel had not been served a brief, Mackley emailed him a copy. Mackley then moved the court of appeals to amend the caption and service list on his original brief, which the court granted. After the case was certified to this court, Mackley attached the relevant orders from both cases as addenda to his replacement brief—orders that had been included in the notice of appeal that Mackley filed in Husband’s case.

¶29 Husband and Mother have not cited any rule or case law that these procedural errors require striking Mackley’s replacement brief. Indeed, the only case law they cite relates to reply, not replacement, briefs. Yet the parties have not explained how the issues presented in those cases are analogous to the one at hand. We conclude that any alleged procedural errors have been rectified and are thus harmless. Accordingly, we deny the motion to strike.

  1. VOLUNTARY DENIAL OF PATERNITY

¶30 Mackley contends that the district court erred in allowing Husband to rescind the denial under theories of mutual and unilateral mistake of fact. Specifically, he argues that the mistake cited by the district court was not a mistake of fact but rather a mistake regarding the legal consequences of signing the declaration and denial. We agree.

¶31 Relevant here, under the UUPA a presumed father may move to rescind a voluntary denial of paternity by filing a rescission document within sixty days after the effective date of the denial.

UTAH CODE § 78B-15-306(1)(a). “After the period for rescission under Section 78B-15-306 has expired,” as occurred here, “a signatory of a declaration of paternity or denial of paternity . . . may commence a proceeding to challenge the declaration or denial only on the basis of fraud, duress, or material mistake of fact.” Id. § 78B-15-307(1).

¶32 Husband moved to rescind the denial under theories of duress and material mistake of fact. Without addressing duress, the district court concluded that the denial should be rescinded due to mutual and unilateral mistakes of fact.

¶33 A party seeking to rescind an agreement based on a mutual mistake of fact must show, by clear and convincing evidence, that “both parties, at the time of contracting, share[d] a misconception about a basic assumption or vital fact upon which they based their bargain.” Bergmann v. Bergmann, 2018 UT App 130, ¶ 14, 428 P.3d 89 (emphasis added) (citation omitted) (internal quotation marks omitted); see also UTAH CODE § 78B-15-112 (“The standard of proof in a trial to determine paternity is ‘by clear and convincing evidence.’”); id. § 78B-15-307(2) (“A party challenging a declaration of paternity or denial of paternity has the burden of proof.”). A mutual mistake “can provide the basis for equitable rescission” of an agreement “even when the contract appears on its face to be a ‘complete and binding integrated agreement.’” Burningham v. Westgate Resorts, Ltd., 2013 UT App 244, ¶ 12, 317 P.3d 445 (citation omitted).

¶34 As to mutual mistake, in its order granting Husband’s motion to rescind the denial, the district court found that Mother, Husband, and Mackley were all unaware that Husband would be required to sign the denial. Furthermore, it found that they all shared the mistaken belief that the purpose of signing the declaration and denial was to add Mackley’s name to the child’s birth certificate, not declare Mackley’s paternity of the child and thereby terminate Husband’s legal rights as the presumed father. According to the court, the parties were mistaken about the legal consequences of signing the form because the form failed to clearly state them and because Husband’s mistaken belief that he was preserving his rights as the presumed father was reinforced by an employee of the health department. The court thus determined that none of the parties intended for the declaration and denial to have the effect that they did.

¶35 In addition, the district court noted that permitting Husband to terminate his fundamental rights to the child without that waiver being knowing and intentional would be inconsistent with Utah law. (Citing UTAH CODE § 78A-6-514(3).) The court then concluded that the circumstances surrounding the execution of the denial demonstrated that Husband had not knowingly and voluntarily waived his parental rights.

¶36 A party may also rescind an agreement based on unilateral mistake of fact. To do so, the rescinding party must establish four elements: (1) that the mistake is “of so grave a consequence” that it would be “unconscionable” to enforce the contract as it was made; (2) that the mistake was made as to a matter that “relate[s] to a material feature of the contract”; (3) that the mistake “occurred notwithstanding the exercise of ordinary diligence by the party making the mistake”; and (4) that rescission will not “serious[ly] prejudice” the other party other than “the loss of his bargain.” Briggs v. Liddell, 699 P.2d 770, 773 (Utah 1985); see also John Call Eng’g, Inc. v. Manti City Corp., 743 P.2d 1205, 1209–10 (Utah 1987).

¶37 As to unilateral mistake, the district court determined that despite exercising ordinary diligence of a person of his education and experience, Husband was mistaken as to the legal consequences of the denial. In so concluding, the court found that Husband was not provided any verbal or written notice that signing the denial would result in a relinquishment of his parental rights and that the advice given by the health department employee had misled him. Based on those circumstances, the court concluded that enforcing the denial would be unconscionable and that rescinding it would not result in prejudice to Mackley. Accordingly, the court granted Husband’s motion to rescind.

¶38 We hold that the district court erred in allowing Husband to rescind the denial because any mistake (mutual or unilateral) related to the legal consequences of signing the form, not to any underlying facts. The premise of both of these equitable rescission doctrines is that they relate to mistakes of fact, not law. And under Utah law, “each party has the burden to read and understand the terms of a contract before he or she affixes his or her signature to it. A party may not sign a contract and thereafter assert ignorance or failure to read the contract as a defense.” John Call Eng’g, Inc., 743 P.2d at 1208.

¶39 This analysis applies here even though a voluntary declaration of paternity is not a typical contract between two parties. Here, the legal consequences of Husband signing the denial arise both from the language on the form and from the Utah Code. The UUPA provides that once executed and filed, a declaration of paternity “is equivalent to a legal finding of paternity of a child and confers upon the declarant father all of the rights and duties of a parent.” UTAH CODE § 78B-15-305(1). While we agree that the form could be updated to clarify its contents and legal consequences to signatories,[9] Husband had a duty to read and understand the form he was signing. The form advises signatories that they should be “provided verbal and written notice of the legal consequences of and the alternatives to signing” the form. The court essentially found that Husband did not understand the legal consequences of the denial or its meaning under section 78B-15-305(1). But ignorance of controlling law and the legal effect of signing the form are not mistakes of fact. The sole mistake that seems factual is whether or not Husband actually did receive that verbal or written notice from the health department employee. But in signing the denial, Husband affirmed that he had. If he had not received the notice, Husband had the burden to inquire further or consult with legal counsel. He cannot claim ignorance as to the legal consequences of signing the denial. We therefore reverse Husband’s rescission of the denial and remand to the district court.

III. STANDING

¶40 Mackley contends that the district court erred when it denied him standing to challenge Husband’s presumed paternity under the UUPA and the common-law Schoolcraft test.[10] However, this issue is now moot. Because we conclude that the district court erred in allowing Husband to rescind the denial, it remains in effect and functions as the equivalent of “a legal finding of the nonpaternity of the presumed . . . father,” see UTAH CODE § 78B-15-305(3), and, correspondingly, “establish[es] [Mackley’s] paternity of the child” as the declarant father, see id. §§ 78B-15-301, -302(1)(f).

¶41 However, we note that even if we were to conclude that the denial was properly rescinded, Mackley would nevertheless have standing. In a companion case that also issues today, Castro v. Lemus, we hold that the UUPA grants standing to alleged fathers like Mackley. 2019 UT 71, ¶¶3, 12, 51, 61, — P.3d —.

CONCLUSION

¶42 We conclude that the district court erred in allowing Husband to rescind the denial under theories of mutual and unilateral mistake of fact. Husband’s denial thus remains in effect. Mackley’s argument regarding standing is moot, but we note that our holding in Castro v. Lemus, 2019 UT 71, — P.3d —, which also issues today, would confer standing upon him in the absence of the denial. Accordingly, we vacate the order allowing for rescission and remand to the district court for further proceedings consistent with this opinion.

Utah Family Law, LC | divorceutah.com | 801-466-9277

[1] We list both cases that the court of appeals consolidated so that all of the concerned parties are listed herein. We note that Adrienne Openshaw and Adrienne Barney are the same person.

[2] Alternatively, Mackley contends that an interpretation of the UUPA denying him standing violates his constitutional rights to due process and equal protection. These same or similar arguments were raised in several companion cases that we also issue today. See Castro v. Lemus, 2019 UT 71, ¶¶ 53, 57, — P.3d —; Hinkle v. Jacobsen, 2019 UT 72, ¶ 19, — P.3d —; Olguin v. Anderton, 2019 UT 73, ¶ 18, — P.3d —. In Castro, we hold that the UUPA grants standing to alleged fathers to rebut the presumption of paternity. 2019 UT 71, ¶¶ 3, 12, 51, 61. And because we adopt an interpretation of the UUPA that grants standing to alleged fathers, we need not address Mackley’s constitutional challenges to a statutory interpretation that does not.

[3] The UUPA provides that “The mother of a child and a man claiming to be the genetic father of the child may sign a declaration of paternity to establish the paternity of the child.” UTAH CODE § 78B-15-302(1). A man who establishes his paternity in this manner is called a “declarant father.” § 78B-15-102(8). The declaration of paternity must be signed, or otherwise authenticated, by both the mother and the declarant father. Id. § 78B-15-302(1)(b). And if the child has a presumed father, as here, the presumed father must sign, or otherwise authenticate, a denial of paternity in order for the declaration of paternity to be valid. Id. §§ 78B-15-302(3)(a), -303, -304. When both are required, a declaration of paternity and a denial of paternity must be contained in a single document, and neither is valid until both are signed and filed according to statute. Id. § 78B-15-304(1). Once filed, a valid declaration of paternity “is equivalent to a legal finding of paternity of a child and confers upon the declarant father all of the rights and duties of a parent.” Id. § 78B-15-305(1). The declaration of paternity then becomes an amendment to the child’s original birth certificate. See id. § 78B-15-302(7).

Here, there are some inconsistencies in the record regarding when the parties signed the declaration and denial. However, it is clear that Mother, Husband, and Mackley each signed the sections of the form relevant to him or her as prescribed by law.

[4] The form the parties signed cites to an obsolete section of the Utah Code. Utah Code section 78-45g-204 was renumbered as section 78B-15-204 in 2008. The parties signed the form in 2012, but the form still listed the old section number.

[5] The denial includes a definition of “presumed father.” It states that a man is presumed to be the father of a child if:

(a) he and the mother of the child are married to each other and the child is born during the marriage;

(b) he and the mother of the child were married to each other and the child is born within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce or after a decree of separation; [or]

(c) after the birth of the child, he and the mother of the child married each other.

[6] At the time Mother moved to dismiss Mackley’s petition for lack of standing, the court of appeals had yet to issue its decision in R.P. v. K.S.W., 2014 UT App 38, 320 P.3d 1084 (interpreting the UUPA to deny standing to alleged fathers when the child is born during a marriage and has a presumed father). Mother acknowledged that her interpretation of the UUPA was an issue of first impression but argued in favor of construing the statute to deny standing based on the policy considerations outlined in In re J.W.F. (Schoolcraft), 799 P.2d 710 (Utah 1990).

[7] See UTAH CODE § 78B-15-308(5) (“At the conclusion of a proceeding to rescind or challenge a declaration of paternity or denial of paternity, the tribunal shall order the Office of Vital Records to amend the birth record of the child, if appropriate.”).

[8] Mother filed a replacement brief, which Husband joined.

[9] Our holding should not be construed as approval of the form used in this case. Given the significant legal consequences to signatories of a declaration and denial of paternity, we are persuaded that efforts should be made to improve the clarity of the form. For instance, even though the definition of “presumed father” was not altered when the UUPA was renamed and renumbered, it is concerning that the form had not been updated to reflect the correct section of the statute.

[10] Mother and Husband argue that although the district court referenced Schoolcraft, it actually applied Utah Code section 78B-15-608, which they argue is modeled after the policy considerations set out in Schoolcraft. We are not persuaded. It is clear from the district court’s order that it was applying Schoolcraft, which has been preempted by the UUPA. Accordingly, we conclude that any reliance on the prior common-law test was erroneous.

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Do judges get angry at “dead beat dads” who aren’t biological fathers?

Do judges get angry at supposed “dead beat” dads who are not the biological father and refuse to pay child support for a kid that is not theirs?

Occasionally. There are some well-publicized instances of men who can prove they are not a child’s father who have still been adjudicated the father of the child or ordered to pay child support (often times it’s because the father did not respond to a legal action in which he was alleged to be the child’s father, and so the mother or the state that sued him obtained a judgment by default against him). Later on, these men prove by DNA testing that they are not the child’s father. Some judges nevertheless chastise such men if they refuse to pay child support as ordered. It’s rather silly, but it is “legal”.

Judges are expected not to express their personal feelings and opinions on the issues in the cases they adjudicate, or if they do, to do so sparingly and for a legitimate purpose, not just to vent at the people whose words or actions they dislike.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Do-judges-get-angry-at-supposed-dead-beat-dads-who-are-not-the-biological-father-and-refuse-to-pay-child-support-for-a-kid-that-is-not-theirs/answer/Eric-Johnson-311

 

 

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Nebeker v. Orton – 2019 UT App 23 – child custody and parent-time

Nebeker v. Orton – 2019 UT App 23
THE UTAH COURT OF APPEALS

SHANE NEBEKER, Appellant,
v.
TRISHA ANN ORTON, Appellee.

Opinion No. 20170438-CA
Filed February 14, 2019

Sixth District Court, Richfield Department
The Honorable Marvin D. Bagley
No. 154600140

Jared L. Peterson, Attorney for Appellant
Benjamin Kearns, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in whichJUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

MORTENSEN, Judge:

¶1        Shane Nebeker (Father) and Trisha Ann Orton’s (Mother) extramarital relationship resulted in the birth of a son (Child). For the first eighteen months of Child’s life, Father saw him only a few times. Then, concerned about Mother’s illegal activities, Father took Child away from Mother without her consent. Sometime thereafter, Father and Mother worked out an extrajudicial, temporary custody arrangement that they perpetuated until a custody trial. After a bench trial, Mother was awarded primary physical custody of Child, and Father was awarded statutory minimum parent-time. Father appeals. We affirm in part—affirming the district court’s decision regarding primary custody—and reverse in part—reversing the district court’s decision related to Father’s parent-time.

BACKGROUND[1]

¶2        Father and Mother are parents of Child, born in December 2013. Mother and Father ended their relationship before Child was born, and they lived about 100 miles apart. During the first eighteen months of Child’s life, Father saw Child on two occasions shortly after his birth. Mother stated that Father “was more than welcome to come down any time he wanted to” visit Child, but Father repeatedly told Mother, “I refuse to have anything to do with you to see my child.” Mother did not allow Father to remove Child from her supervision because (1) Child was nursing and (2) Mother felt Child needed “to get to know” Father before he took him for a visit. Father admitted Mother told him he could visit Child at her residence, but Father said it would have been “uncomfortable” because there were “still feelings.”[2]

¶3        Father did not provide financial support to Child or Mother during the first eighteen months of Child’s life. The Office of Recovery Services opened a case, and the matter came before the district court in early May 2015, where Father’s support obligation was determined.

¶4        In late May 2015, Mother allowed Father to visit Child. Mother’s daughter (Daughter) picked up Child and took him to meet Father at a nearby restaurant. Daughter allowed Father to take Child for a few minutes to buy a toy. But Father then sent Daughter a text message informing her that he was not returning Child. Father characterized this action as “rescuing” Child from the dangerous situation created by Mother’s drug use. Father took Child to his house. Mother stated that the day Father took Child was the “darkest day of [her] life” and admitted that she “wasn’t probably in the best place in [her] life.” For the first week after Father took Child, Father allowed Mother to call and read Child a bedtime story, but after that week Father refused to answer the phone, and Mother “was not allowed to see [Child] for six months.” Mother did not report Father’s taking of Child to the police or any other authority.

¶5        Mother realized that she was “never going to get [her] baby back” unless she “got clean.” She testified that she “found a new way of life” in a treatment center and “never touched [drugs] again.”

¶6        In October 2015, Father filed a parentage petition in which he sought sole custody of Child and child support from Mother. Around January 2016, Mother and Father “agreed” to an ongoing extrajudicial temporary custody arrangement under which Child stayed ten out of every twenty-eight days with Mother and the balance of the days with Father.[3] Mother said that she felt “bullied” into accepting the temporary arrangement. Father stated that Child did well under the arrangement.

¶7        Ultimately, a two-day bench trial was held in October and November 2016. The district court made the following findings of fact: (1) Mother and Father began a relationship when they were teenagers; (2) each had been married or in relationships with other persons; (3) each had other children from prior marriages or relationships; (4) each had a history of using illegal drugs and violating the law; (5) Father was married and Mother was single at the time of trial; (6) Child had his own bed and bedroom in Father’s house; (7) Child had his own bed in Mother’s room at Mother’s house; (8) Father and Mother resided approximately 105 miles apart and had no plans to move closer to each other; (9) Mother had a good support system where she lived and believed she could avoid adverse influences she might encounter elsewhere; (10) Mother and Father each had family members to provide support and a positive influence on Child;

(11)      Father’s employment required him to be away from home for fourteen hours per day during scheduled work periods;

(12)      Mother worked six-and-one-half hours daily, Monday through Thursday; (13) Child had been residing with both parents pursuant to an informal, temporary parent-time schedule; (14) Child was well-adjusted and doing well under the informal agreement. The district court also found:

Both parties acknowledged past deficiencies in their parenting abilities. In essence both parties have had periods in their [lives] when they have been less than fit parents. However, at the present time both parties contribute financially to the welfare of [Child]; and both parties spend appropriate time with, and provide appropriate emotional support to [Child]. Essentially, both parents are fit parents. Both are very bonded with [Child].

¶8        In its analysis, the district court acknowledged that both parties had a history of drug problems, criminal activities, and extramarital sexual relations. “While Father cleaned his life up sooner than Mother, there is insufficient evidence for [the district court] to make a decision as to whether one of the parties’ past conduct was better or worse than the other.” Indeed, Father admitted having a history of criminal activity, including “a couple DUIs,” methamphetamine and marijuana use with Mother, and being incarcerated more than three times. Mother likewise admitted that she had a history of drug use and selling drugs, but she had been “over a year clean” at the time of the trial. Thus, the district court determined that “evidence relating to past conduct and moral standards is equally balanced between the parties.“

¶9        In determining which parent should have primary physical care of Child, the district court highlighted four factors. First, in analyzing which party was most likely to allow “frequent and continuing contact with the other parent,” the district court noted that the facts did not weigh in Father’s favor, particularly because Father “surreptitiously” and “underhandedly” took Child and did not allow Mother to contact Child for a significant period. At the same time, the court acknowledged that taking Child motivated Mother’s recovery from drug use. The district court found the evidence supported the conclusion that Child was “doing very well” in the care of both parents and that both parties were cooperating in providing the other “meaningful parent time.”

¶10 Second, the district court determined that Child had a greater bond with Mother:

While [Child] has recently spent considerable periods of time with Father, [Child] has overall lived more with Mother than Father. Prior to the time Father became concerned enough with Mother’s drug use that he took self-help action, Father was content to allow [Child] to live primarily with Mother. The [district court] considers such action (or non-action) on the part of Father to be a tacit acknowledgement that the best interests of [Child] were being best served by [Child] living primarily with Mother.

Thus, the district court determined that Mother had been the primary caregiver for Child.

¶11      Third, “Mother’s work schedule is also more conducive to her having primary physical care of [Child].” The court reasoned that Mother could “devote more time to [Child’s] needs than Father” because she “works fewer hours, travels less time to and from work, and has a more consistent work schedule than Father.”

¶12      Fourth, the court cited the distance separating the parties as a motivating factor in its determination. “If the parties were living in the same community, or within a reasonably close distance from each other, the [district court] would likely have found a joint physical custody arrangement to be in [Child’s] best interests.” Indeed, both parties acknowledged at trial that once Child begins school, one parent must necessarily have primary custody. As Father noted, “Obviously when school starts, I think that’s why we’re here today. . . . I don’t think we could possibly do a two week on or a one week on schedule when he’s going to school.”

¶13 Having weighed these factors, the court determined that it was in Child’s best interests to award the parties joint legal custody, with Mother having primary physical custody. The district court further specified that “Father be allowed to exercise liberal and meaningful parent time with [Child]. At a minimum Father should be entitled to the aggregate amount of parent time provided by Utah Code Ann. § 30-3-35; with adjustments being made to that schedule to ensure Father’s parent time is exercised, as much as is reasonably possible, at times Father is off work.” Father appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 The first issue is whether the district court’s factual findings were properly supported by the evidence. “A challenge to the sufficiency of the evidence concerns the [district] court’s findings of fact. Those findings will not be disturbed unless they are clearly erroneous.” Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (cleaned up). And a “court’s factual determinations are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if this court has a definite and firm conviction that a mistake has been made.” Id. (cleaned up).

¶15      The second issue is whether the district court erred when it departed from the informal custody arrangement and awarded primary physical custody to Mother and only the statutory minimum parent-time to Father. “We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 24, 414 P.3d 933 (cleaned up). We will not disturb the district court’s judgment “unless we determine the [district] court has exceeded the scope of permitted discretion or has acted contrary to law.” Davis v. Davis, 2001 UT App 225, ¶ 6, 29 P.3d 676 (cleaned up). Further, “[i]t has long been the law in this state that conclusions of law must be predicated upon and find support in the findings of fact and that the judgment or decree must follow the conclusions of law.” Gillmor v. Wright, 850 P.2d 431, 436 (Utah 1993).

ANALYSIS

I. The Evidence Supported the District Court’s Factual Findings

¶16 Father’s first argument is that the evidence does not support the court’s factual findings. The factual findings of the district court “will not be disturbed unless they are clearly erroneous” by being “in conflict with the clear weight of the evidence.” Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (cleaned up). But “the existence of conflicting evidence is not sufficient to set aside a [district] court’s finding.” Bond v. Bond, 2018 UT App 38, ¶ 6, 420 P.3d 53 (cleaned up). Rather, “to successfully challenge a [district] court’s factual finding on appeal, the appellant must overcome the healthy dose of deference owed to factual findings by identifying and dealing with the supportive evidence and demonstrating the legal problem in that evidence, generally through marshaling the evidence.” Taft v. Taft, 2016 UT App 135, ¶ 19, 379 P.3d 890 (cleaned up). “The pill that is hard for many appellants to swallow is that if there is evidence supporting a finding, absent a legal problem—a ‘fatal flaw’—with that evidence, the finding will stand, even though there is ample record evidence that would have supported contrary findings.” Kimball, 2009 UT App 233, ¶ 20 n.5. Thus, “a party challenging a factual finding or sufficiency of the evidence to support a verdict will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal.” State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645.

¶17 Here, Father has not addressed many of the district “court’s findings and makes no attempt to marshal the evidence in support of them. He clearly views the evidence as compelling a different outcome, but it is not within our purview to engage in a reweighing of the evidence, and [Father] has not demonstrated that the evidence underlying the [district] court’s findings is insufficient.” See Shuman v. Shuman, 2017 UT App 192, ¶ 9, 406 P.3d 258 (cleaned up). We illustrate a portion of the absence of marshaling as follows.

A. Child’s Best Interests

¶18 Father disagrees that Mother is more likely than he is to act in Child’s best interests. The court found that Father “underhandedly” and “surreptitiously” took Child and “kept Child from Mother for some time.” Father responded that he allowed phone contact between Mother and Child, and noted that Mother never filed a police report against him after he took Child, implying that she tacitly supported Father’s decision to take Child. But Father fails to address why Mother would have been reluctant to call police. Mother had warrants out for her arrest. If she had filed a report, she likely would have lost custody of Child because she would have been arrested. By taking Child and withholding him from Mother, Father placed Mother in a no-win situation.

¶19 In contrast to Father’s actions, the record indicates that Mother was willing to let Father visit Child. Shortly after Child was born and before paternity had been established, Mother allowed Father to visit Child. Father admitted that Mother told him he could come visit Child at her parents’ house, but Father declined because there were “still feelings” and he was “uncomfortable” with such an arrangement. After paternity was established and Father agreed to pay child support, Mother allowed him to spend time with Child at a restaurant—a decision that led to her losing physical possession of Child. Furthermore, unlike Father, Mother never attempted to regain exclusive possession of Child through surreptitious means.

¶20      The district court also found that Father’s “non-action” in allowing Child to remain with Mother for the first eighteen months of his life was a “tacit acknowledgment” that Child’s best interests were served by remaining primarily with Mother. The court also noted that, although there was some dispute in the evidence at trial, Father told Mother shortly after taking Child that this arrangement was temporary and “she would get [Child] back after she cleaned up her drug use.”

¶21 From this evidence the court concluded that “the parties have recognized it is in the best interest of [Child] that [Mother] continue” to be his primary caregiver. As we noted in Shuman, Father “views the evidence as compelling a different outcome”— that his efforts to gain custody of Child demonstrate he was not content with allowing Child to live primarily with Mother—“but it is not within our purview to engage in a reweighing of the evidence.” 2017 UT App 192, ¶ 9 (cleaned up). Thus, the district court’s determination that Child’s best interests were served by awarding Mother primary custody was sufficiently supported by the evidence and was not clearly erroneous.[4]

B. Primary Caretaker Assessment

¶22 Father next argues that the district court’s finding that Mother was the primary caretaker for the majority of Child’s life is “contrary to the law and evidence.” But Child lived exclusively with Mother for the first eighteen months of his life. In contrast, the parties shared custody from January 2016 until trial in late 2016. Father had sole custody for only about seven months— from May 2015 when he took child until January 2016 when the parties agreed to a temporary custody arrangement.

¶23 Father responds that “[i]t is not who the child has lived with the majority of his life, but who the child has lived with once a party initiates legal action.” Father cites Davis v. Davis, 749 P.2d 647 (Utah 1988), in support of this proposition. We find Father’s reading of Davis selective and inaccurate. In Davis, the parties in a divorce proceeding agreed that the father would have custody of a minor child so the child could stay in the family home. Id. at 648. About one month later, the divorce decree was set aside on the grounds that the mother was emotionally unstable at the time of the original proceeding and did not realize the consequences of her actions. Id. In the renewed divorce proceedings, the court awarded custody of the child to the father. Id. Our supreme court upheld the decision, noting that the father had been the child’s “primary caregiver for over a year and had provided a very stable environment.” Id. From this holding, Father argues that because he had primary custody of Child during the pendency of this matter, “[t]he District Court erred in disregarding this information in favor of the care provided by [Mother].”

¶24 As Mother points out in her brief, this “position is contrary to Utah law and basic logic.” Such an approach might require a court to award primary caretaker status to the parent who filed for custody after only recently gaining possession of a child over the interests of the parent who had a previous, but much longer, possession. Father’s position is also contrary to Davis. Directly following the statement that the current custody arrangement should be given special weight, the Davis court warned, “Of course, if the primary caregiver gained that status wrongfully, courts should be careful not to reward such conduct by giving the wrongdoer a consequential advantage in evaluating the custody question.” Id. at 648–49. We find Father’s reliance on Davis misplaced precisely because, as the district court noted, he gained primary caregiver status wrongfully when he “surreptitiously” and “underhandedly” took possession of Child through “self-help.” Therefore, the district court’s finding was not clearly erroneous.

C. Work Schedule Analysis

¶25 Father also challenges the district court’s finding that Mother’s work schedule was more conducive to her having primary physical custody. Father argues that the district court’s decision “[e]ssentially . . . came down to its finding that [Mother’s] work schedule, a schedule where she worked more days, but fewer hours in a two-week period than [Father] served [Child’s] best interest.” Father’s characterization of the district court’s analysis of the parties’ work schedules is flawed in three respects.

¶26 First, Father fails to acknowledge that the work schedule was one of three factors the district court highlighted in Mother’s favor. The court also determined that Mother was more likely to allow “frequent and continuing contact with the other parent” and that Mother had a greater bond with Child.

¶27      Second, Father asserts that in Fullmer v. Fullmer, 761 P.2d 942 (Utah Ct. App. 1988), this court held that it is an abuse of discretion to base a custody award on the parties’ work schedules. But Father misreads that case. Fullmer stated that the “[district] court abused its discretion by relying on [a minor child’s] placement in full-time day care to change [the child’s] custody placement” because “more and more children are raised by single parents who must work.” Id. at 948. In the present case, the district court did not punish Father for working. Rather, it stated that Mother’s work schedule was more conducive to devoting more time to Child.

¶28      Third, Father ignores the totality of the evidence. Father’s job as a supervisor at a coal mine required that he work variable twelve-hour shifts fourteen days out of every four weeks. In addition, Father has a nearly one-hour commute each way to work. He admits that the length of his commute requires him to rely on his extended family and his spouse to address emergencies involving Child that might arise while he is working. In contrast, Mother works Monday through Thursday from 10:30 a.m. to 5:00 p.m. at a convenience store close to home. Her employment affords her the flexibility to leave during her shift if the need arises. Therefore, Father has not shown that the district court’s finding that Mother can devote more time to Child’s needs than Father was clearly erroneous.

¶29      By failing to marshal the evidence in favor of the district court’s findings, Father has not met his burden of persuasion. Accordingly, we do not conclude that the findings are clearly erroneous and instead conclude that, although we might subjectively view the import of the evidence differently from the district court, we cannot say that the conclusions are against the great weight of evidence nor are we convinced that a mistake has been made.

II. The District Court Erred in Awarding Father Minimum

Parent-Time

A. Deviation from the Informal Custody Arrangement

¶30 Father next argues that the district court erred by failing to identify a compelling reason to deviate from the informal custody arrangement—under which Child was thriving, happy, and well-adjusted—and awarding primary physical custody to Mother and parent-time to Father.[5] “The importance of the myriad of factors used in determining a child’s best interests ranges from the possibly relevant to the critically important. At the critically important end of the spectrum, when the child is thriving, happy, and well-adjusted, lies continuity of placement.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. “A very short custody arrangement of a few months, even if nurturing to some extent, is not entitled to as much weight as a similar arrangement of substantial duration. Of course, a lengthy custody arrangement in which a child has thrived ought rarely, if at all, to be disturbed, and then only if the circumstances are compelling.” Elmer v. Elmer, 776 P.2d 599, 604 (Utah 1989) (cleaned up). In Davis v. Davis, 749 P.2d 647, (Utah 1988), a custody arrangement that had been in place for just over a year was held sufficient to establish continuity. Id. at 648.

¶31 In the present case, we note that the informal custody arrangement was temporary and had been in place for about ten months—from January 2016 until the district court’s decision in November 2016—falling between the lengths of duration established in our case law. But the length of the informal custody arrangement is not the dispositive factor here. Rather, the district court recognized that the agreement could not continue because Child would be starting school the following year. And Father admits that “when [Child] turns five and begins kindergarten, the Court really does have to pick one parent for [Child] to reside with, at least Monday through Friday.” Mother also acknowledges that where Child attends school is an issue that must be addressed. Thus, the district court acted within its discretion and supported its decision with adequate findings when it departed from the informal custody arrangement. An imminent change in circumstance, namely Child’s starting school, required a change in the custody arrangement. Father fails to address this significant undisputed fact.

¶32 The district court acknowledged that joint physical custody would be in Child’s best interests if the parties lived in the same community, but the parties’ distance from each other precluded such an arrangement. Prompted by this reality, the district court weighed the factors, see supra ¶¶ 9–11, and concluded that Child’s best interests were served by awarding Mother primary physical custody. It noted that (1) Mother had been the primary caregiver for the majority of Child’s life, (2) Mother was more likely to allow “frequent and continuing contact with the other parent,” and (3) Mother’s work schedule was more conducive to having primary physical care of Child. As this court noted in Kimball v. Kimball, 2009 UT App 233, 217 P.3d 733, “if there is evidence supporting a finding, absent a legal problem—a ‘fatal flaw’—with that evidence, the finding will stand, even though there is ample record evidence that would have supported contrary findings.” Id. ¶ 20 n.5.

¶33 Thus, we conclude that the district court did not exceed its discretion in relying on evidence of changed circumstances in departing from the informal custody arrangement and awarding Mother primary physical custody of Child.

B. The Award of Parent-Time to Father

¶34 Father argues that the district court erred in awarding him minimum parent-time, asserting that he showed by a preponderance of the evidence that he should be awarded parent-time in excess of the minimum guidelines in Utah Code sections 30-3-35 and 30-3-35.5. We agree that the district court’s award of only minimum parent-time was not supported by its findings.

¶35 “[T]he parent-time schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be presumed to be in the best interests of the child . . . .” Utah Code Ann. § 30-3-34(2) (LexisNexis Supp. 2018).[6] But these parent-time schedules are subject to adjustment. See id. The schedules represent the minimum parent-time to which the noncustodial parent is entitled unless one of the parents can establish, by a preponderance of the evidence, that more or less time should be awarded based upon a number of criteria. See id. Criteria relevant to the case at hand include, amongst a lengthy list, (1) the distance between the residences of the custodial and noncustodial parents, (2) shared interests between the child and the noncustodial parent, (3) involvement of the noncustodial parent in the child’s community activities, and (4) “any other criteria the court determines relevant to the best interests of the child.” Id. § 30-3-34(2)(b), (h), (i), (o). Regardless of whether the court awards minimum parent-time or awards more or less than the statutory minimum, the statute requires the court to “enter the reasons underlying its order.” Id. § 30-3-34(3).

¶36 Without specifically referencing the statutory criteria, Father contends that the following evidence supported awarding him parent-time in excess of the statutory minimum: (1) Mother’s testimony that Child should have equal time with both parents; (2) neither distance nor finances made “frequent and meaningful” visitation prohibitive; (3) travel between the parents’ residences was not harmful to Child; (4) Child shared a strong bond with Father and Father’s wife and other children; and (5) Child thrived by following the routine in Father’s household.

¶37      “It has long been the law in this state that conclusions of law must be predicated upon and find support in the findings of fact and that the judgment or decree must follow the conclusions of law. When there is variance, the judgment must be corrected to conform with the findings of fact.” Gillmor v. Wright, 850 P.2d 431, 436 (Utah 1993). Such correction is appropriate in this case.

¶38 In the very sentence stating that it found Child’s best interests were served by awarding primary physical custody to Mother, the district court also stated that it “would likely have found a joint physical custody arrangement to be in [Child’s] best interests” if the parties lived reasonably close to each other. The district court reasonably concluded that the distance separating the parties’ residences justified something less than equal parent-time, especially once Child starts attending school. After all, Mother and Father agree that a 100-mile commute to school is unworkable. But this distance does not prevent other possible accommodations that could be accomplished without undue disruption to Child’s school schedule, such as awarding Father additional weekend time or more parent-time over the summer vacation, fall break, spring break, and holidays.

¶39      The district court made no attempt to explain, as required by the statute, its reason for awarding minimum parent-time. See Utah Code Ann. § 30-3-34(3). Given the district court’s findings that (1) Child was “well adjusted and doing very well pursuant” to the informal custody arrangement, (2) “[b]oth parents deeply love and are committed to [Child],” (3) “both parents are extremely motivated to be awarded physical custody of [Child],” (4)            both parties offer financial and emotional support to Child, (5)        “both parties spend appropriate time with” Child, (6) both parents are “fit” and “very bonded” with Child, and (7) the parties agree that Child needs a “relationship” and “substantial time with” the other parent, we would have expected that the court attempt to increase Father’s parent-time over the statutory minimum. Indeed, we are hard-pressed to understand the process by which the court awarded Father minimum parent-time when—in its own words—Father should be “allowed to exercise liberal and meaningful parent time” and where Mother argued at trial that both parents should have equal time with Child. In reality, the record reflects that Mother was arguing that she should have enhanced parent-time, likely believing that Father would prevail as the primary caretaker. Both through the presentation of evidence and in argument, Mother supported the notion that in this case enhanced parent-time should be awarded to the non-primary caregiver. Accordingly, awarding Father the statutory minimum parent-time while simultaneously concluding that the evidence supports awarding Father “liberal and meaningful” parent-time presents a conclusion that does not follow from the findings stated.

¶40      On this single issue we determine that the district court’s conclusion is not supported by its findings, and therefore the court exceeded its discretion when it minimized Father’s parent-time. Thus, we reverse on this issue because of inadequate findings and remand for additional findings and, if necessary, a reevaluation of what additional parent-time should be awarded.

CONCLUSION

¶41 We conclude that the evidence supports the district court’s findings leading it to determine that Child’s best interests were served by awarding primary physical custody to Mother. We further conclude that the district court made adequate findings supported by the record to depart from the informal custody arrangement, but we conclude that the court’s findings are inadequate to justify an award of only minimum parent-time to Father. Accordingly, we remand this matter for further proceedings.

Utah Family Law, LC | divorceutah.com | 801-466-9277

——————

[1] “On appeal from a bench trial, we view the evidence in a light most favorable to the [district] court’s findings, and therefore recite the facts consistent with that standard.” Lake Philgas Service v. Valley Bank & Trust Co., 845 P.2d 951, 953 n.1 (Utah Ct. App. 1993).

[2] Shortly after Child was born, Father reunited with his ex-wife. They had married for the first time in 2006, separated, divorced, and then remarried in June 2016.

[3] The temporary arrangement began about ten months prior to the November 2016 trial. A temporary order allowing Mother parent-time was in place from late December 2015 through early January 2016.

[4] The court concluded that Mother would be more likely than Father to allow contact because Father resorted to self-help to take possession of Child and then kept Child from Mother for some time. Father did not deny taking and keeping Child. But he asserted Mother stopped calling Child and never filed a police report. Father further argued that the district court ignored (1) Mother withholding Child from Father prior to the self-help incident and (2) Father’s willingness to allow additional contact under the informal custody arrangement. Although Father presented evidence that would have supported a contrary finding, we will not disturb the district court’s finding that Mother was more likely to allow frequent and continuing contact for the simple reason that this finding was also supported by the evidence.

[5] Father contends that Hudema v. Carpenter, 1999 UT App 290, 989 P.2d 491, stands for the proposition that the court must have a compelling reason to disrupt a stable custody situation. We disagree and find Father’s reliance on Hudema misplaced. In that decision, a panel of this court noted, “[N]ot all continuity [of custody arrangements] is alike. A heavy emphasis on preserving stability presupposes that the prior arrangement is not only satisfactory, but will in fact continue.” Id. ¶ 27. In Hudema, the mother had sole physical custody pursuant to a court order. Id. ¶ 3. While the district court was considering a petition to modify custody, the mother moved to another state. Id. ¶¶ 3–4. The district court determined that the custody arrangement could not continue due to changed circumstances. Id. ¶ 6. Accordingly, this court in Pingree v. Pingree, 2015 UT App 302, 365 P.3d 713, clarified that Hudema does not stand “for the proposition that a court must find compelling circumstances before ordering a change in custody when the child thrives under the current arrangement” but for the proposition that “[a] modification is premised on a finding of changed circumstances.” Id. ¶ 13. The present case is not presented in that context.

[6] We cite to the current version of this section because the recent amendments do not affect our analysis or the issue as presented by the parties.

 

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2019 Utah Legislative Session – parentage, child custody factors

Welcome back to our feature on new laws from the 2019 Utah Legislative Session. There were a lot of changes in family law in 2019. The legislature amended section 78B-15-610 of the Utah Code, which applies in parentage actions (which is the new name for what used to be called paternity actions) was amended to provide that a court may follow the standards and criteria in Utah Code’s divorce statutes in determining issues related to custody or parent-time in a parentage action.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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