Tag: fraud

Artificial Fraudulence

Seth Godin stated it well when he wrote, “The ease with which someone can invent and spread lies [with advancing technology] is going to take most of us by surprise. It’s going to require an entirely new posture for understanding the world around us.”

This is especially true in family law.

We will soon reach the point (some are there already) in family law where a spouse or parent can create fake email, text, and audio and visual “records” of spousal and child abuse, substance abuse, infidelity, assets and debt, property damage, diminution and dissipation of assets, scientific data, etc. that is all but indistinguishable from the genuine article. The level and volume of fakery will be impossible for all but the wealthiest of litigants to discern (and even then, if a duped judge is too proud or to biased to acknowledge and remedy the fraud, all the proof in the world won’t protect the innocent). When truth is practicably impossible to verify in the legal process, truth becomes meaningless to the process.

I don’t know how best to address this problem (it may already be too late). Unless the profession takes immediate and wise action, the liars will make such a mockery of the legal process so fast and so pervasively that trust in the system will be irreparably destroyed (and with good reason). We may reach a point where society at large gives up on the notion of justice being a function of truth (reality).

One concern I have is members of the profession (both opposing counsel and judges) acting “offended” for outraged or “concerned” if somebody claims that deepfakes and other similar tactics are being engaged. I’m concerned that someone who may in the utmost sincerity raise legitimate concerns about the authenticity and veracity of certain evidence being ridiculed as paranoid, a vexatious litigator, unprofessional, etc. Not out of a genuine belief, but in the hopes that shaming or even persecuting the whistleblower will result in the claims being retracted so that the hard work of getting to the truth can be avoided and or so that the desired outcome is not impeded by the facts. When that happens, then who will judge the judges, and by what standard?

Utah Family Law, LC | | 801-466-9277

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

2023 UT 4








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


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



Having recused herself, JUSTICE POHLMAN did not participate;




¶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.


¶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.


¶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).


¶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.


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.


¶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.


¶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 | | 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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My spouse opens accounts in my name, forges my signature. How to stop it?

My spouse opens accounts in my name, steals checks, forges my signature. How do I get my spouse to stop?

Without telling me, my spouse opens store accounts in my name, steals my checks, forges my name on my checks and accounts. In our state, assets are divided 50/50 in a divorce, and that would be catastrophic financially for me. How do I get my spouse to stop?

This is a great question. The answer is not going to be very comforting.

Unless you are somehow able to prove to the court’s satisfaction that, in fact, your spouse opened accounts in your name without your knowledge or consent, if you cannot prove that your spouse forged your name on contracts or checks, then the poor judge can’t be expected to ignore the documents that show you—albeit falsely—have those accounts and debts and obligations. From the judge’s perspective, your spouse has very compelling evidence (even though but only you know it’s false and fraudulent). The judge needs proof that this evidence is fake before it can disregard that fake evidence.

Fortunately, it has been my experience that frequently a person in your position can often find the proverbial smoking gun that exposes your spouse’s fraud to the court’s knowledge. But if you believe you can prevail in a contest of “your word against mine,” you’re in for disappointment. Don’t leave it to chance.

Utah Family Law, LC | | 801-466-9277

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Proving Parental Alienation Is Only Half the Battle

Many parents in a child custody dispute being tried in court are the target of a parental alienation campaign. For some parents, the alienation started long before the court case. For other parents, it’s the court case that leads the other parent to commence the parental alienation campaign.

Historically, courts have not been receptive to claims of parental alienation.

Too often this stems from courts writing off parental alienation claims as self-serving and motivated by one spouse’s animus for another. And clearly, a certain degree of skepticism is a wise approach to parental alienation claims. A judge should neither be inclined to believe or disbelieve a claim on its face. It should be (but sadly always isn’t) the case that the substance of the evidence, not the seriousness of the allegation, decides the issue.

The good news is that as courts are becoming more aware of what parental alienation is they are becoming more willing keep an open mind as they consider a parent’s efforts to make a case for parental alienation.

The bad news is that proving parental alienation is only half the battle. Even courts that find parental alienation exists often feel they are ill-equipped to remedy the situation. This article by Dr. J Michael bone explains how this arises:

Parental Alienation in Court: Dealing with Judicial Anxiety, 8/31/2017
Dr. J Michael Bone, Parental Alienation Consultant

Utah Family Law, LC | | 801-466-9277

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What is the difference between a divorce and an annulment?

Many couples may wonder if they can seek an annulment rather than going through the divorce process.

So what is the difference between an annulment and a divorce?

The primary difference between a divorce and an annulment is that a divorce formally ends a marriage. An annulment on the other hand, declares a marriage as “invalid,” null and void.

A Utah court may order a marriage annulled only in a limited number of circumstances:

30-1-17.1.  Annulment – Grounds for.

A marriage may be annulled for any of the following causes existing at the time of the marriage:

(1) When the marriage is prohibited or void under Title 30, Chapter 1, Marriage.

(2) Upon grounds existing at common law.

Marriages prohibited by law are fairly rare occurrences, but if you want to see if perhaps your marriage is one of them, see Utah Code § 30-1-1 and § 30-1-2[1]

So what are the “common law” grounds for annulment?

It’s really hard to say! I have researched this subject many times, and I can’t find an article or treatise that comes right out and states, “here’s what the common law grounds for annulment are or were historically.” Here is the best I can find:

In no particular order (and without claiming this is an exhaustive list):

  • Fraud[2]
  • Unlawful Marriages (incestuous, bigamous)
  • Duress; Undue Influence
  • Physical or Mental Incapacity (impotence, incapable of contracting for want of understanding, temporary insanity, intoxication that so greatly impaired the mental abilities of a party as to render that party incapable of assenting to the marriage)

Interesting tidbit from 4 Am. Jur. 2d Annulment of Marriage § 3 (Grounds for annulment of marriage, generally): “While it is the function of the legislature, and not of the judiciary, to establish new grounds for the annulment of marriages,[3] the fact that a statute enumerates certain grounds for annulling a marriage has been held not to necessarily imply that no others exist.[4]

Bottom line: few people wanting to end a marriage qualify for an annulment. For most people, divorce is their only option to bring about an end to their marriage by court action.

Utah Family Law, LC | | 801-466-9277

[1] 30-1-2.  Marriages prohibited and void:

The following marriages are prohibited and declared void:

(1) when there is a husband or wife living, from whom the person marrying has not been divorced;

(2) when the male or female is under 18 years of age unless consent is obtained as provided in Section 30-1-9;

(3) when the male or female is under 14 years of age or, beginning May 3, 1999, when the male or female is under 16 years of age at the time the parties attempt to enter into the marriage; however, exceptions may be made for a person 15 years of age, under conditions set in accordance with Section 30-1-9;

(4) between a divorced person and any person other than the one from whom the divorce was secured until the divorce decree becomes absolute, and, if an appeal is taken, until after the affirmance of the decree; and

(5) between persons of the same sex.

Utah Code § 30-1-1.  Incestuous marriages void:

(1) The following marriages are incestuous and void from the beginning, whether the relationship is legitimate or illegitimate:

(a) marriages between parents and children;

(b) marriages between ancestors and descendants of every degree;

(c) marriages between brothers and sisters of the half as well as the whole blood;

(d) marriages between uncles and nieces or aunts and nephews;

(e) marriages between first cousins, except as provided in Subsection (2); or

(f) marriages between any persons related to each other within and not including the fifth degree of consanguinity computed according to the rules of the civil law, except as provided in Subsection (2).

(2) First cousins may marry under the following circumstances:

(a) both parties are 65 years of age or older; or

(b) if both parties are 55 years of age or older, upon a finding by the district court, located in the district in which either party resides, that either party is unable to reproduce.

[2] Haacke v. Glenn, 814 P.2d 1157 (Court of Appeals of Utah 1991):

Under common law, a marriage could be annulled for a fraud going to the essence of the marriage. Wolfe v. Wolfe, 62 Ill.App.3d 498, 19 Ill.Dec. 306, 309, 378 N.E.2d 1181, 1184 (1978); Avnery v. Avnery, 50 A.D.2d 806, 375 N.Y.S.2d 888, 890 (1975); Douglass v. Douglass, 148 Cal.App.2d 867, 307 P.2d 674, 675 (1957); Bing Gee v. Chan Lai Yung Gee, 89 Cal.App.2d 877, 202 P.2d 360, 364 (1949). The fraud must be such that directly affects the marriage relationship rather than “merely such fraud as would be sufficient to rescind an ordinary civil contract.” Bing Gee, 202 P.2d at 364. The misrepresentation must go to present and not future facts. Wolfe, 19 Ill.Dec. at 310, 378 N.E.2d at 1185. Further, the fraud must be material to such a degree that, had the deceived party known of the fraud, he or she would not have consented to the marriage. Avnery, 375 N.Y.S.2d at 890. “The test in all cases is whether the false representations or concealment were such as to defeat the essential purpose of the injured spouse inherent in the contracting of a marriage.” Douglass, 307 P.2d at 675.

As to the form the fraud takes, it may “consist of an affirmative false representation or the withholding of the truth when it should be disclosed.” Costello v. Porzelt, 116 N.J.Super. 380, 282 A.2d 432, 434 (1971).

In determining fraud, courts have adopted a subjective standard and have considered the facts of the particular marriage. Wolfe, 19 Ill.Dec. at 311, 378 N.E.2d at 1186 (where husband concealed his prior marital history from Roman Catholic wife); Costello, 282 A.2d 432 (where husband omitted to tell wife of his heroin addiction); *1159 Lamberti v. Lamberti, 77 Cal.Rptr. 430, 432, 272 Cal.App.2d 482 (1969) (where husband’s secret intent in marrying was to acquire an advantageous alien status and where he falsely promised to go through a subsequent religious ceremony); Parks v. Parks, 418 S.W.2d 726 (Ky.1967) (where wife falsely represented at time of marriage that she was pregnant); Kober v. Kober, 16 N.Y.2d 191, 211 N.E.2d 817, 264 N.Y.S.2d 364 (1965) (where husband failed to disclose his extreme anti-Semitism to wife); Handley v. Handley, 179 Cal.App.2d 742, 3 Cal.Rptr. 910 (1960) (where wife secretly intended not to live with husband and not to adopt his name); Osborne v. Osborne, 134 A.2d 438 (D.C.1957) (where husband secretly intended not to live with his wife); Rathburn v. Rathburn, 138 Cal.App.2d 568, 292 P.2d 274, 277 (1956) (where wife secretly intended not to consummate the marriage); Vileta v. Vileta,53 Cal.App.2d 794, 128 P.2d 376, 377 (1942) (where wife did not disclose her infertility); Rubman v. Rubman, 140 Misc. 658, 251 N.Y.S. 474 (1931) (where husband falsely told wife he loved her and did not disclose that real reason for marriage was to avoid deportation). See also Leventhal v. Liberman, 262 N.Y. 209, 186 N.E. 675 (1933) (where husband did not disclose he had tuberculosis and was a narcotics addict).

[3] Patey v. Peaslee, 99 N.H. 335, 111 A.2d 194, 47 A.L.R.2d 1388 (1955).

[4] Browning v. Browning, 89 Kan. 98, 130 P. 852 (1913).

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Defending Yourself Against a Protective Order

My friend is a good man. His wife is crazy. She put a protection order against him, to help manipulate the court proceedings. What should he do?

Defend himself with all he has because:

  • (regardless of how much the legal system will deny it) the prevailing presumption is that a man accused of domestic violence is guilty;
  • the unwritten, unseen even unwitting policies of the system are set up to ensure that presumption is affirmed; and
  • many (not all) courts grant protective orders routinely, without really making a considered determination of whether the standard of proof has been met to merit one.


One, no judge wants to deny a request for protective order, then have the woman wind up hospitalized or dead, and then be blamed for “failing to protect” the victim. So to ensure that never happens judges often grant any request for a protective order. That way they can never be blamed for “failing” to protect victims. The fact that “generous” issuance of protective orders victimizes innocent men just doesn’t get enough attention to give some judges pause.

Two, the job of a judge is very demanding, very difficult, and often thankless. These are the reasons why judges can become jaded and apathetic, especially on the subject of domestic violence.

The tragic results are often:

  • the accused’s reputation is irreparably damaged; and
  • he proceeds at a permanent disadvantage and under a cloud of public shame and loathing, if the “victim” follows the protective order request with a complaint for divorce (and that’s usually exactly what happens)

Your friend needs to:

  • Hire the best lawyer he can find to help defend him. If he tries to defend himself, the legal system can chew him up (strip him of his money, job, home, family, and good name) and spit him out.
  • You may assert, “But if he gets a lawyer, won’t that make him look guilty?” NO!
    • Indeed, I’d contend that not getting a lawyer makes him look like someone who’s so poor and stupid that he’s the kind of arrogant lout who probably beats his wife. Lawyer up.
    • There is plenty of empirical and anecdotal evidence that people who represent themselves in legal proceedings without an attorney get treated worse by the courts than people who hire lawyers. It’s not fair, but it’s reality. Lawyer up. Pay for a good lawyer. You simply can’t afford not to.
    • Although you may believe otherwise, you have no idea how the legal system works, and you will almost surely make numerous serious and irreparable mistakes if you try to navigate the system on your own.
    • Lawyer up. Do it as fast as you can. The legal system does not work the way you think it does. If you believe that all you have to do is go into court and tell your side of the story for a fair shake, you’re mistaken.
    • Don’t get me wrong: there are some judges out there who will care, who do understand the law, and you are not afraid of holding protective order applicants to the proper standards of evidence and burdens of proof. But why leave it to chance?
    • DO NOT speak to the police (without counsel). The police can lie to you and try to misreport or misconstrue your words. They are allowed to do that in the course of their investigations. They will avail themselves of this tool. So if they tell you that “you are not a suspect,” or “we just want to get your side of the story,” or even “this will go a lot easier for you if you cooperate,” they almost never mean a word of it.

When the police want to talk to you in this setting, it’s usually because they want to bury you, not vindicate you. You can’t afford to take the risk.

If you are approached by Child Protective Services, the Division of Family Services, or whatever such an organization is called in your jurisdiction, do not agree to speak with them without your lawyer present, and without you recording the interview from start to finish. You may ask why I do not advise you simply to refuse to speak with these agencies. The reason for this is a little unclear in many people’s minds: while you have a constitutional right to remain silent if you are questioned by the police, in most jurisdictions (although you’ll want to confirm this in your own jurisdiction) you do not have such a right if you are questioned by officials of child welfare agencies. In the course of my career and my dealings with child welfare agencies in the protective order context, this loophole is often exploited, and here’s how:

1) the child welfare agency official invokes the right to question you;

2) (and if you refuse to answer those questions, then the child welfare agency official will report this to the court, and your refusal to answer questions may, and likely will, be construed as evidence of guilt. The problem is that if you speak with the child welfare agency officials, they will frequently misstate and misinterpret your answers. This is why they rarely, if ever, make an audio recording of your interview: that way it becomes a matter of your word against theirs, and since they work for the state, the court typically places more stock in the word of a government agency than in the word of the accused);

3) then the child welfare agency official goes to the police and tells the police a slanted version of what you just told the child welfare agency officials (because you had to answer their questions), and on the basis of what you said to the child welfare agency officials, the police charge you with a crime.

Now you see how important it is for you not to speak with the child welfare agency official before you have lawyered up, submitted to questioning only with your lawyer present, and have made it clear that you will be making an audio recording of the entire interview with the child welfare agency officials.

The majority of the public believes (although this belief is slowly giving way in the face of some highly public rail-roadings) that whenever there is an allegation of domestic violence, it must be true, and it must’ve been the man who was the aggressor. With these stereotypes in mind, many people are falsely/wrongfull charged and convicted. If you don’t know how to defend yourself properly, and if you do not actually defend yourself properly, you will likely be failed and victimized by a system that does not care about you or the truth.

If you are innocent:

  • lawyer up now, now, now;
  • don’t speak to anyone without consulting with a lawyer first. Don’t speak to anyone without your lawyer’s advice, without your lawyer present, and without making a recording of the interview;
  • passionately profess your innocence. Vehemently deny wrongdoing;
  • gather every scrap of exculpatory evidence that you can possibly find. You’re going to need it. All of it. You need so much exculpatory evidence that you can win six ways from Sunday. The playing field is not level. Do everything you can to ensure that you have control over your fate. Do not entrust your fate to the legal system.
  • Prepare and file with the court–with the assistance of a very good lawyer–as soon as you possibly can a document asserting your innocence and the categorical denial of all wrongdoing. Do not wait until you appear in court to state your case.
  • Do not merely defend yourself. Go on the offensive. Don’t simply oppose the request for protective order and ask that it be denied. If your jurisdiction allows, moved to have the protective order action vacated as frivolous and without merit.
  • Make sure your lawyer 1) informs the court of the applicable legal and evidentiary standards and 2) holds the court to them. Don’t allow your judge to issue a protective order against you carelessly or out of bias.

Utah Family Law, LC | | 801-466-9277

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