BLANK

Tag: paternity

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.

Tags: , , , , , , , , , , , , , , , , , , , ,

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  

Tags: , , , , , , , ,

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  

Tags: , , , , , , , , ,

How does someone take custody of a child after winning custody?

When someone wins custody of a child, does the child come to the courthouse to be taken by whoever is awarded custody or do they go to the home of the child to take them? How does this usually go? 

Thank you for asking this question. It is a basic question that many parents have and yet very few are willing to ask for fear of looking ignorant. Questions and asked our questions unanswered, and you’ve asked a very basic but very important question that deserves to be answered clearly and fully. 

  1. A court can issue an order that the parties meet at the courthouse with the child and physically transfer custody of the child from one party to the next at the courthouse.
  2. Rarely is it necessary for a court to issue an order that the parties meet at the courthouse with the child and physically transfer custody of the child from one party to the next. For example, if there is a dispute between two opposing parties (Party A vs. Party B) over custody of a child, and if the child is already in the custody of Party A when the court awards custody, then there will be no need for an order directing one party to turn the child over to the other party. 
  3. In most child custody cases long before the child custody award is made, a temporary order (or order pendente lite) has been issued by the court awarding custody to one of the parties. After all, the child needs to be cared for and have a place to live while the litigation is pending, which is why these temporary custody orders are made. So if the party to whom temporary custody was awarded wins permanent custody, there will be no need for any kind of transfer of custody of the child from one party to the other.

But if the party who was awarded temporary custody of the child is not awarded permanent custody of the child after the trial, usually what happens is the losing party will comply with the court’s order to turn custody over of the child to the prevailing party. Fortunately, in most custody disputes, the losing party is gracious in defeat and — even though perhaps heartbroken or bitterly angry over the outcome — will comply voluntarily with the court orders and in turn the child over to the prevailing party without incident. The way that works is the court may (and often will): 

  • order the losing party (in whose physical custody of the child was before trial) to have the child ready for the prevailing party to pick up the child at the losing party’s house at a set date and time.  
  • order the losing party to bring the child to the prevailing party’s house at a set date and time. 
  • order that the child be brought to a third party’s home (a relative or mutual family friend) or workplace (often a social worker) to spare the losing party from breaking down in grief or anger in front of the child or to help generally ease the transition from the losing party to the prevailing party. 

If the court is concerned that a verbal and/or physical altercation might arise if custody is exchanged at the losing party’s house or if the losing party were ordered to bring the child to the prevailing party’s house, the court may order the parties to exchange custody of the child at a police station, so that the police can keep the peace and make an arrest if either or both parties become unruly. 

If the court is concerned that the losing party might try to abscond with the child before the prevailing party can take custody of the child, then the court may order the police or the deputy sheriff to accompany the losing party to the losing party’s home to ensure that the child is not kidnapped or concealed or absconded with before the prevailing party can take custody of the child. 

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

https://www.quora.com/When-someone-wins-custody-of-a-child-does-the-child-come-to-the-courthouse-to-be-taken-by-whoever-is-awarded-custody-or-do-they-go-to-the-home-of-the-child-to-take-them-How-does-this-usually-go/answer/Eric-Johnson-311

Tags: , , , , , , , ,

The biological father of my child filed to establish paternity. He’s unfit and I haven’t been served yet. How can I handle this?

The biological father of my child filed to establish paternity. He’s unfit and I haven’t been served yet. How can I handle this? 

My answer applies to both mothers and fathers in this situation: 

  1. Start preparing for the showdown now. Don’t wait for trouble to find you. 
  2. Don’t try to handle this without a good lawyer (not just any lawyer, not an “affordable” lawyer, but a good lawyer, a lawyer who is skilled in the area of child custody litigation, of good character (someone who is honest and trustworthy), and diligent (works hard to get the job done right and without wasting your time and money)). If you fail to comply with the law and court rules and lose as a result, saying “I had no lawyer” is no excuse and “I had a bad lawyer” is almost never a winning argument. 
  3. The best way to win your case is with independently verifiable proof. The next best way to win is with highly persuasive evidence. The difference between proof and evidence. Proof is objective, absolute. Not in doubt. Evidence weighs on the balance of probabilities. Sometimes the evidence can be of such a nature that it is highly persuasive and convincing, but it always leaves the door open. 
  4. The riskiest way to win your case is on a “your word against mine” basis (and I would be dishonest if I did not mention that in my experience most courts tend to find the testimony of mothers far more credible than the testimony of fathers—it’s not fair, it’s sexist, but it happens nevertheless, and more often than not, in my experience). 
  5. Understand and accept that this process can take a long time and cost a lot of money and take a terrible toll on you emotionally and psychologically. Budget accordingly. Stay grounded. Watch you drug and alcohol intake. See a therapist and/or a minister for help with coping skills and a check on whether your emotions are clouding your judgment. Get some exercise, even it’s just a brisk walk each day. Don’t be afraid to lean on willing friends and family for moral support. 

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

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , ,

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.

Tags: , , , , , , , , , ,

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.”

Tags: , , , , , , , , , , , , , , , , , , , , ,

Can I use Ancestry.com to prove or disprove paternity?

Question: Can I use Ancestry.com to order child support?

Answer: I think you’re asking whether you can use a commercial DNA testing service to prove in court that you are or are not the biological father of a child for the purposes of deciding the child support issue, the answer is:

Yes, if the mother and the court agree to accept the test results as accurate. This is unlikely, but possible.

No, if the mother and the court agree to accept the test results as accurate, in which case the court will order you and the child to submit to DNA testing approved by the court.

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

https://www.quora.com/Can-I-use-Ancestry-com-to-order-child-support/answer/Eric-Johnson-311

Tags: , , ,
Click to listen highlighted text!