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:
Start preparing for the showdown now. Don’t wait for trouble to find you.
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.
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.
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).
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.
How can a mother leave the father of her baby and get full custody, when she does not trust him to look after the baby by himself? The mother (or any parent in such a situation) would need to prove, by a preponderance of evidence, to the court that the father (or other parent) is sufficiently unfit to be entrusted with the child. Simply telling the court “I don’t trust the other parent” is not enough, not even close to enough to persuade the court.
The mother would need to provide the court independently verifiable facts that show the father is either unable or unwilling to provide adequate care and attention and supervision of the child. A court cannot award a parent sole legal and/or sole physical custody of a child without first finding there is sufficient evidence to justify such an award (or at least cannot do its job properly without first finding there is sufficient evidence to justify such an award).
Utah Family Law, LC | divorceutah.com | 801-466-9277
I’ll answer as if this question were asked in the belief that the affair will have a profound effect upon child custody, child support, and/or alimony.
If you’ve had an extramarital affair, it generally won’t do your divorce case any favors, won’t win you any sympathizers.
But will it generally result in you being “punished” by the divorce court? The answer to that question is, in my experience as a divorce lawyer: probably not (unless your affair could be shown to have done your spouse and kids egregious financial, physical, or emotional harm) and/or you were a serial, unrepentant adulterer/adulteress).
Child custody: in the jurisdiction where I practice divorce law (Utah), it has been my experience that extramarital affairs are rarely seen as rendering a parent “unfit” to exercise sole or joint custody of his/her children.
While the court is required to consider “the past conduct and demonstrated moral character of the parent” (Utah Code § 30-3-10(2)(d)) in making its child custody evaluation and award, usually the court will reason that an adulterous parent is not inherently any worse as a parent than one who is not.
If the affair cause the parent to spend excessive time away from the children, caused the parent to neglect the children, or if the children’s knowledge of the affair caused the children serious psychological or emotional harm and/or the children distrust or hate a parent because of the affair, then it’s not really the affair that is the problem itself, but the effects of the extramarital affair.
Child support: I have never seen an extramarital affair cited as a reason for awarding more or less child support had the child support payor not committed adultery.
Alimony: in Utah (where I practice divorce law), adultery can affect the alimony award, but will not automatically have an effect on the alimony award. Here is what the Utah Code contains:
(b) The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony.
(c) “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:
(i) engaging in sexual relations with an individual other than the party’s spouse[.]
(See Utah Code § 30-3-5(9)(c))
What does this mean? The Utah Supreme Court construed that section of the Utah Code in the case of Gardner v. Gardner (2019 UT 61, 452 P.3d 1134 (Supreme Court of Utah 2019)):
¶ 26 As with harm in a negligence case, a “great number of events” may have contributed to a divorce. In fact, we have previously recognized “that it is seldom, perhaps never, that there is any wholly guilty or wholly innocent party to a divorce action.” So in almost all divorce cases, it could be argued that each spouse contributed in some way to the breakup of the marriage. But some causes are clearly more substantial, or significant, than others. So even though it may be impossible to state with certainty a sole, or even the first, cause leading to the breakup of the marriage, it will certainly be possible in many cases for a court to determine the significant or important causes of the divorce.
¶ 27 Accordingly, we conclude that “substantially contributed” to the breakup of the marriage is conduct that was a significant or an important cause of the divorce. Under this definition, conduct need not be the sole, or even the most important, cause for it to substantially contribute to a divorce. So when an important or significant cause falls into a category of conduct specifically identified in section 30-3-5(8), courts are authorized to consider it in an alimony determination, even if the at-fault party can point to other potential causes of the divorce.
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¶ 53 Section 30-3-5(8)(a) requires district courts to consider the financial situations of both spouses as part of its alimony determination. Additionally, section 30-3-5(8)(e) urges district courts to “look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (8)(a),” and section 30-3-5(8)(f) provides that the “court may … attempt to equalize the parties’ respective standards of living.” Together these provisions codify the default rules that an alimony award should be crafted to “provide support for the [receiving spouse] as nearly as possible at the standard of living [he or] she enjoyed during marriage,” and, “to the extent possible,” to “equalize the parties’ respective standards of living.”
¶ 54 As we have explained, these default rules tend to further the court’s aim of achieving “a fair, just, and equitable result between the parties” because they typically put the parties in the best possible position to “reconstruct their [separate] lives on a happy and useful basis.” So the economic factors, and the general aim of placing the parties in the same position they enjoyed during the marriage, stand as an important starting point in any alimony determination.
¶ 55 But section 30-3-5(8) also provides courts the flexibility and discretion to depart from these default rules in certain situations where fairness demands. For example, in addition to the economic factors listed in section 30-3-5(8)(a), section 30-3-5(8)(b) also authorizes courts to consider “the fault of the parties in determining whether to award alimony and the terms of the alimony.” So the statute expressly provides district courts with the discretion to consider fault in determining whether to award alimony, as well as in determining the terms—the amount and length—of the alimony award.
¶ 56 Section 30–3–5 also provides guidance for how a court may adjust the amount and length of an alimony award in the event the court determines that one spouse’s fault necessitates a departure from the default economic alimony factors. For example, although section 30-3-5(8)(e) urges district courts as “a general rule,” to “look to the standard of living, existing at the time of separation,” it also instructs courts to “consider all relevant facts and equitable principles,” and grants courts “discretion” to “base alimony on the standard of living that existed at the time of trial.” When section 30-3-5(8)(e) is read together with section 30-3-5(8)(b)’s fault provision, it is clear that where a court determines that one spouse’s fault would make it inequitable to maintain both parties at the standard of living enjoyed during the marriage, the court has the discretion to lower the award to an amount sufficient to sustain the at-fault spouse at a reasonable standard of living post-marriage, rather than the standard of living the couple enjoyed during the marriage.
¶ 57 Similarly, section 30-3-5(8)(f) authorizes courts to depart from default alimony awards where fault contributed to the break-up of the marriage. It instructs courts to “attempt to equalize the parties’ respective standards of living.” But it also notes that courts should do so only “under appropriate circumstances.” So once again, when this provision is read together with section 30-3-5(8)(b)’s fault provision, it is clear that courts need not attempt to equalize the parties’ respective standards of living where one spouse’s fault would make equalization inappropriate.
¶ 58 Therefore, under the plain language of section 30-3-5(8), courts have discretion to depart from the default economic rules where one party’s fault makes it appropriate to do so. Because the district court determined that Ms. Gardner’s conduct qualified as fault under the statute, the court was authorized to depart from the default alimony rules by reducing Ms. Gardner’s alimony award by some amount.
Utah Family Law, LC | divorceutah.com | 801-466-9277