More on UT and Unmarried Fathers–This Time With The Marital Presumption, Too

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.




9 responses to “More on UT and Unmarried Fathers–This Time With The Marital Presumption, Too

  1. I represented the child (as appointed minor’s counsel) in Michael H. from the trial court through the Supreme Court. Today California has two marital presumptions with different standing requirements depending on the couple’s status at conception. The fact that H & W divorce doesn’t affect standing. In addition, the former “conclusive” marital presumption has a two-year statute of limitations. Last year we passed a bill empowering courts to recognize more than two parents — the position I took all those years ago.

    My daughter was 5 at oral argument. As she walked out of the Supreme Court, she asked her father, “Why can’t the little girl have two daddies?” Today she is a 30-year-old lawyer and my associate and the Cal. Legislature finally agreed with her 5-year-old perspective.

    • Michael H is such a difficult case for me. The Court’s unwillingness to contemplate matters from the child’s point of view is frustrating. I always wonder what became of Victoria–who clearly did believe that she had two fathers.

      I followed the CA bill that allowed three parents. It makes perfect sense to me and, in some cases, seems the only reasonable solution. I also recently wrote (a couple weeks back) about a CA case where the couple wasn’t married at conception, so I’ve run into that strand of law. But CA is probably one of the states that is more likely to be flexible in this area.

      • For Justice Scalia it was a vehicle for addressing constitutional construction and a tribute to a platonic ideal of the nuclear family that was utterly divorced from the reality of this family. The Brennan plurality found that kids in Victoria’s shoes can have independent substantive due process interests in preserving relationships. But as a result of Justice Stevens’ error in assuming Cal. law had a vehicle for nonparent visitation absent a divorce between the legal parents. But there was no such path and the Supreme Court denied reconsideration. Of course, by then the family lived in New York, and it appears Victoria’s early childhood memories faded away.

  2. i believed we discussed it here but can’t find it- do you mind linking to the post about Michael H?

    • I think I’ve mention Michael H from time to time. Here are a few of the places it came up.

      I’m not sure if there is one place on the blog where you can find a full discussion of the case. From the point of view of con law (the issue not reached in the new UT opinion) it’s an important opinion. It does not bode well for the constitutional claims of RP. But then, times change and so does law–even con law.

      • Leslie Ellen Shear

        Several years ago I sought cert. in case that failed to apply the marital presumption in a gender-neutral way. Bio-Dad’s wife had received infant into marital family and raised him as her own with the older children of the marriage. Bio mom changed her mind and years of litigation ensued. Cal appellate court panel that had construed Cal-UPA in a gender-neutral way for my Lesbian parentage case that ended up in the Cal Supremes was unwilling to apply that same standard to the marital presumption.

  3. Why did the court disregard the previous settlement? is it because they regarded him as a non-parent? Does this mean that voluntary custoddy and visitation agreements are only valid if they are between 2 equal parents? if so, thats exactly the opposite of the manzanares case.

    • Part of the problem is that the first action didn’t include the husband. It clearly should have as, whether one likes the result here or not, the husband has some interest in the matter. Since the husband wasn’t included, it was not hard for the court to declare the settlement invalid. Then they went on to the standing question and found no standing.

      I think it would have been hard for the wife to attack the agreement but for the original omission of the husband. That made the settlement vulnerable. (But this is just my take on it and I would defer to someone who knew more about UT law.)

      • Wouldn’t the husband have been a part of overturning the original presumption in the first place? Was his name removed from the birth certificate?

        BTW, my husband had to overturn the marital presumption here in Wisconsin but that was with the mother’s and husband’s consent as they had not had an actual relationship in over 10 years. When I was a baby, my mother was divorcing my sister’s father and I had to have a GAL represent me in the divorce. My father is still not on my birth certificate tho because the law back then was that they had to be married. They did get married later on and I would like to amend my BC, but with all the problems adoptees have with amended BC’s, I’m not sure I want to bother.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s