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WHEN IS A FATHER REALLY DAD?

Posted by: In: Newsletter Archive 25 Mar 2015 Comments: 0

BY LORIE D. FOWLKE

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

Most of assume that parenthood generally comes when a man and woman get together and create a baby. However there are exceptions from a legal point of view. The most common exception many people are aware of are when an unwed mother decides to place her child for adoption. In that situation the unwed father has no input to that decision in Utah unless he takes certain specific steps outlined in the Utah Code. Those type of cases have been litigated extensively in this state and, for the most part, held to be constitutional.

What is a different situation is when the alleged biological father creates an infant with a mother who is married to someone else. In centuries past, there was a legal doctrine called “Lord Mansfield rule,” which provided that any child born while mother was married was presumed to be the child of mother’s husband. The reasons for this were multiple and included the impact on the child of “bastardizing” the child.

This was the rule almost forever, until science progressed to the point where genetic testing could identify someone else as the biological father when such a claim was raised. The law has generally followed the science and allowed unwed father’s to make such claims and become a part of their child’s life, if they take responsibility for that child and take the appropriate legal actions. However that has changed with the enaction of the Uniform Utah Parentage Act a few years ago, when the mother of the child is married.

If an unwed man has an affair with a married woman and a child results, things are not only very complicated personally but also legally. The parentage act presumes that this child is the legal child of the husband. Unwed alleged father does not have the right to even make a claim for parenthood unless the mother or the husband raise the issue with the courts and ask the court for the genetic testing. If the husband and mother decide to divorce that may change things. However, if husband elects to acknowledge the child as his own, alleged unwed father has very few legal options. One way he could rebut this presumption would be to present evidence that the mother and her husband had not been together for 300 days before or after the child was born. The statute does say that estoppel can apply; however that part of the statute has not been analyzed by the appellate courts yet so we are not sure what that means.

The important point to remember is that if a man has an affair with a married woman in Utah, the child will be presumed to be the husband’s and options are extremely limited. The exceptions are unless the husband does NOT want to be involved with the child, or the mother asks the court to have alleged father to be declared the father. If the marriage dissolves this is not unlikely; however, if the husband and mother elect to overcome whatever issues led to the affair and keep the marriage intact, it is most likely the court will determine the child belongs to husband and will not even consider genetic test results.

The moral of the story is that having an affair with a married woman is bad news for more than one reason. Proceed with caution.

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