Here’s a fairly recent UT opinion that lies right at the intersection of two lines of conversation here. You could think of this as one more UT unmarried father case. (There have been a whole series of those discussed here over the years. One was the topic of yesterday’s post.) But it is also a case about the marital presumption–something we’ve all been discussing fairly recently.
It is somewhat surprising to me that I have come across several marital presumption cases in the last months. I don’t know if this is chance (that I ran into them), chance (that the topic came up in different states) or some sort of meaningful pattern. Whatever it is, I can assure you that I’ve put up posts on all I have come across–I am not selecting to make a particular point.
That said, there’s nothing terribly surprising about the UT decision. UT has a strong preference for having children raised by married couples. (Perhaps it is worth noting that until recently that necessarily meant different-sex couples, but UT is one of those states where the restriction on access to marriage has been successfully challenged in federal court. It will be interesting to see what becomes of that challenge (it will be heard on April 10 by the US Court of Appeals for the 8th Circuit) and whether, if it succeeds it will have any effect on the preference for married couples.)
The same preference motivates the application of the marital presumption you see here and so it is not at all surprising that the genetically related man loses out to the husband.
The facts are a bit complicated. DRW and KSW were married. KSW had an affair with RP and became pregnant in 2010. KSW told RP and also told RP that she intended to remain married to DRW.
At least RP and KSW agreed that RP was the genetic father of the child. RP sued to establish paternity (which is to say, legal status as a parent). For reasons unclear, he sued only KSW (the wife) and not DRW (the husband.) This case settled in 2011.
When the child was 1 RP sought increased parenting time–which is what was in the agreement. (By this time it is clear that he had an actual social relationship with the child in addition to the genetic relationship.) In response KSW moved to set aside the agreement and dismiss RP’s original suit to establish paternity. She asserted both that he should have sued the husband and that the UT version of the marital presumption meant that he had no standing to bring the action anyway.
The court here (a mid-level appellate court) eventually agreed. After a review of the development of UT law it concludes that, as KSW contends, RP has no standing to challenge DRW’s legal status as a parent under UT law. DRW’s unassailable legal status as a parent arises from his marriage to KSW.
As I say, the result here isn’t really surprising, although there are two things to say about it. First, RP, unlike the other genetic fathers in the cases recently discussed, did have a social/psychological relationship with the child. This is potentially very important but, as the case was actually litigated, it makes not difference. The court notes that RP did not raise any constitutional challenge to this application of the statute. The combination of genetic connection and established social relationship to the child might have given this argument some traction. (Of course, it didn’t help Michael H in the US Supreme Court opinion that bears his name.)
Second, the opinion here offers some clear policy justifications for its decision (which is really one of statutory interpretation.) This is all about protecting marriage and to maximize the chances of children being raised within a marriage. There are a number of places where the court explains there, and I’ll just quote one (from paragraph 25):
[C]onferring standing to challenge the child’s paternity only on the presumed father and the mother, so long as they are committed to remaining married, protects the marriage, the child, and the child’s relationship with the presumed father from disruptive attacks by third parties. Interpreting section 607 in this way thus advances a goal of preserving the marriage not only for the sake of the child whose paternity could be challenged, but also for the sake of any other children of the marriage. Under this construction of section 607, the presumed father or the mother can, as a practical matter, determine whether to allow an alleged father to be adjudicated as the child’s parent and to have a role in the child’s life. But if both the presumed father and the mother decide that the involvement of an alleged father would be detrimental to the child or to the stability of the marriage, the statute prevents the alleged father from challenging that decision.
It’s hard to imagine a clearly statement that this is all about power, and about vesting the power to decide what to do with the married couple as long as the couple stands together.