Utah Supreme Court: Biological Father Loses Paternity Over Missing Affidavit

Salt Lake City criminal lawyer

Earlier this week, the Utah Supreme Court ruled that unmarried biological fathers who want to prevent adoption and establish paternity must file a sworn affidavit.  The ruling was a crushing blow to 30-year-old South Ogden resident William Bolden, who lost paternity of his biological son for failing to file the affidavit in time.

Judge's hand holding wooden hammer

South Ogden Father Loses Child Custody to Adoptive Parents

In March of 2011, William Bolden’s son was born and quickly placed for adoption by his biological mother, Bolden’s ex-girlfriend.  Bolden, who opposed the adoption, tried and failed to establish his paternity — but his legal problems actually began well before the child was born.

Two weeks prior to the child’s birth, Bolden attempted to secure child custody in advance by filing a petition for paternity with Utah’s courts.  However, the petition was unsuccessful because it was unverified and lacked a signature.  In response, Bolden corrected the error and filed a signed and verified petition one week before the child’s birth — but once again, there was a problem.  Despite correcting the petition, Bolden had failed to additionally file a sworn affidavit, a requirement of Utah law under Section 78B-6-121.

Under this part of the law (which in turn is part of the extensive Utah Adoption Act), unmarried biological fathers seeking paternity of their own children must file a sworn affidavit with “the court that is presiding over the paternity proceeding.”  This affidavit must outline three points:

  • A statement that the father is “fully able and willing to have full custody of the child.”
  • A detailed care plan for the child going forward.
  • An agreement to pay court-ordered child support, as well as any “expenses incurred in connection with the mother’s pregnancy and the child’s birth.”

Bolden did eventually file the mandatory affidavit — but by then it was too late.  The child had already been born, and the proceedings with anonymous adoptive parents referred to only as “John and Jane Doe” were already underway.

“It’s been a really rough struggle so far and today was a big letdown,” said Bolden after the court delivered the verdict.

The court itself seems to have felt some ambivalence about the verdict as well, with a split opinion among the judges.  Justice Thomas Lee wrote that, in the opinion of the court, Bolden did not “preserve his legal rights as a father by filing a paternity affidavit within the time prescribed.”  Chief Justice Matthew Durrant fully concurred with the opinion, while Judge Gregory Orme concurred only with certain portions of the opinion.   Justice Jill Parrish and Associate Chief Justice Ronald Nehring dissented, with Justice Nehring in particular describing the ruling as “repugnant.”

But despite the initial disappointment, Bolden’s legal team has hinted that the case may not be settled just yet, with attorney Scott Wiser referring to a possible appeal to the U.S. Supreme Court.

So why is the sworn affidavit so important in the first place?

Lawyer

Why Do Unwed Bio-Fathers Need Sworn Affidavits to Get Paternity?

As explained by Justice Lee, the affidavit is intended to protect children’s best interests by “giving voice in their adoption to those who have established a demonstrated commitment to their well-being.”

Then why aren’t biological mothers expected to furnish the same documentation?  It’s a good question, and again, Justice Lee has an answer: “Mothers express their commitment to their offspring through the voluntary decision to carry a child to term — a decision that commits them to the statutory responsibility of caring and providing for the child as a legal parent.”

But while protecting the best interests of children is obviously of the utmost importance, Bolden’s case demonstrates that the law can inadvertently punish good parents who are willing and able.

“The law’s purpose,” says Wiser, “is to weed out deadbeat dads who just aren’t interested, aren’t doing anything.  We don’t want to screw over dads who are willing to step up to the plate, take responsibility, just because of gotcha tactics.  And that’s unfortunately what this case is.  It’s a pure technicality.”

It remains to be seen whether Bolden and his legal team will definitely take the verdict to the U.S. Supreme Court, but one thing is certain: as this case goes to show, the importance of filing complete, accurate, and timely legal documents cannot be emphasized enough.  No matter how loving and supportive a biological father may be, all it takes to undo an entire paternity case is a late, botched, or missing form.  In the words of attorney Wiser, “I think a poor child is losing here and most importantly, it’s a child who is never going to have a relationship with a dad who was committed and wanted to be involved in his son’s life and wanted to support him.”

If you need help establishing your rights as a parent, or if you are trying to adopt a child into your family, experienced Utah adoption lawyer Darwin Overson can help. For a free and private case evaluation, call (801) 758-2287 today.