Cases in Controversy
| Publication year | 1996 |
| Pages | 21 |
| Citation | Vol. 3 No. 2 Pg. 21 |
The Race to Fatherhood: Concerns About Utah's Voluntary Declaration of Paternity Act
Len R. Eldridge, Judge.
A young man wanted to declare paternity of his son and undertake all the joys and responsibilities of fatherhood. But when he contacted the Utah Department of Health, he discovered that someone else had filed a Voluntary Declaration of Paternity concerning his son. The Department told him there was nothing he could do.
The young man was indeed the child's natural father, and the mother had acknowledged that fact to him and his family. But the young man and the mother had separated prior to the birth of their son, and the mother subsequently returned to live with her former boyfriend. After the child's birth, the former boyfriend and the mother signed the Voluntary Declaration of Paternity, representing that the boyfriend was the child's natural father.
Under the statute in force at that time, Utah Code section 78-45e-1 to-13, the fraudulently filed Voluntary Declaration of Paternity became an amendment to the child's birth certificate. Furthermore, pursuant to the statute, the declaration became a conclusive presumption of paternity twenty-four months later. Unfortunately, the young man came to me exactly two weeks too late.
Mr. Eldridge is a sole practitioner in Salt Lake City.
An Adoption Statute
Prior to 1975, a putative father's right to custody of his illegitimate child was superior to all others, except the child's mother. Moreover, when a putative father publicly acknowledged his paternity, the child was considered adopted by the father, and thereafter was considered legitimate from the time of its birth. See T.R.F. v. Felan, 760 P.2d 906, 910 (Utah Ct. App. 1988). In 1975, however, the Utah State Legislature enacted the Voluntary Declaration of Paternity Act (the "Act"), which effectively limited the time in which a putative father could assert his parental rights in cases in which the mother had relinquished her rights to the child. See UTAH CODE Ann. § 78-30-4(3) (repealed 1995).[1]
The Utah Supreme Court interpreted the Act as specifically designed to facilitate permanent and secure placement of illegitimate children whose unwed mothers wanted to give them up for adoption and whose unwed fathers took no steps to formally identify themselves and acknowledge paternity. See Swayne v. L.D.S. Soc. Servs., 795 P.2d 637, 641 (Utah 1990). In my client's situation, the District Court found that the boyfriend had in essence adopted the child by filing the first declaration. In applying the statute, the court ruled that because my client had failed to file and register his notice of claim of paternity first, he was barred from thereafter bringing or maintaining any action to establish paternity of his child.
A Historical Perspective
Utah's leading case on this matter is Swayne v. L.D.S. Social Services, 795 P.2d 637 (Utah 1990). In Swayne, an unwed father sued an adoption agency to obtain custody of his child, which had been given up for adoption by its unwed mother. The Utah Supreme Court found that the Act required the unwed mother's consent to the child's adoption, but did not require the unwed father's consent unless he had filed an acknowledgment of paternity with the Utah Department of Health. Id. at 640. The Court noted that it previously had held that "there are reasonable bases for the classifications in the statute [between unwed mothers and fathers and between fathers who file...
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