Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, April 7, 2006

Case Law Development: Standing to Challenge Paternity in Divorce Action

The Utah Court of Appeals clarified the application of its two-factor test for standing to challenge paternity in a divorce action.  The court reversed a trial court's determination of paternity in the biological father of a child born to a married couple upon their divorce when the child was nearly 2 years old, even though the marital father had known about the uncertainty of his paternity when the child was born, he and mother had agreed to try to make their marriage work and that he would be treated as father, and the biological father had not attempted to support or substantially involve himself in the child's life for the first 16 months.

The court of appeals reversed, holding that the non-marital father should not have been given standing to intervene in the couple's divorce in order to contest paternity because allowing interventions in the circumstances of cases such as this would undermine marital stability by removing incentives for couples to attempt to preserve their marriages in the face of marital infidelitly and, more significantly, the intervention would be disruptive and was unnecessary.

The case provides a fascinating discussion of the competing rights of biological and marital fathers. Pearson v. Pearson, 2006 UT App 128, 2006 Utah App. LEXIS 130 (March 30, 2006)
Opinion on the web (last visited April 5, 2006 bgf)

The case involved a husband and wife who had two children.  The second child was, Mother believed, actually the child of another man.  During the pregnancy, she informed her Husband about Paramour and her belief regarding the child's paternity.  The couple stayed together in an attempt to make their marriage work. Father agreed to raise the child as his own, and Mother agreed to treat Father as the child's natural father.  Father's name was placed on the birth certificate and the couple continued their marriage and to raise the child for nine months.  After they separated, they continued to voluntarily share physical custody of the child on a fifty-fifty basis.  For the first 16 months of the child's life, Paramour did not provide any care or support for the child and only saw him about half a dozen times.  Father sued for divorce.  Paramour moved to intervene and Mother denied Father's paternity of the child in her answer and asked the trial court to declare that Father was not child's biological father.  Father opposed both motions. The court bifurcated the proceedings and granted the divorce, reserving custody issues.  Mother then married Paramour and had a child by him.   On the custody issue, the trial court concluded that Paramour did have standing to contest paternity, and found that he was the father, based on genetic testing, and ordered that he and Mother have joint custody of the child,  but providing a physical custody arrangement that alternated child's time between the two households.

The court of appeals reversed.  Utah caselaw provides that a decision to provide a person standing to challenge the presumption of legitimacy of a child born into a marriage must be based primarily on two policy considerations: "preserving the stability of the marriage and protecting children from disruptive and unnecessary attacks upon their paternity."   The court found that neither of these considerations supported the trial court's decision. 

While the trial court had concluded that allowing Paramour to intervene would not affect the stability of the marriage, as the marriage had already dissolved, the supreme court found that this prong of the test requires the court to "review the totality of the circumstances to determine whether a particular paternity challenge conflicts with the policy goal of preserving the stability of the marriage."  Viewed in that light, the court concluded that the couple in this case would have been less likely to attempt to preserve their marriage had they known that Paramour would have standing to challenge paternity.  "The question is not whether the [couple's] marriage ultimately failed, but rather whether the potential of a challenge to [child's] paternity would have undermined the ... marriage while it was still in existence. Under Father's version of events, the possibility of raising [child] as his own child without interference from [Paramour] was perhaps the central issue motivating him to make the marriage work."

On the second prong of the test, the court found that allowing Paramour to challenge paternity would be disruptive when he had been uninvolved with the child for the first 16 months and Father and Child had become bonded.  The court acknowledged that a mental health expert had testified that Paramour's presence in child's life was not harming child, but noted that that was a different question than whether allowing Paramour to challenge paternity would be disruptive.

Moreover, the court determined that the intervention was unnecessary.  "We presume that, like the disruption element, the necessity element must be analyzed primarily from the child's perspective...  we cannot see how [Paramour's] ability to challenge [child's] paternity remained necessary after he voluntarily absented himself from [child's] life. From [child's] perspective, he had a father in Father from his earliest ability to form paternal bonds....  at the time of the trial court's intervention order, [child] had a father and was not in need of a different one.

Since Paramour had no right to intervene, the court's paternity decision was invalid as was its custody determination.  The court noted in dicta that "Mother would also appear to be barred from challenging [child's] paternity on the facts and posture of this case. She too would lack standing [under the two-part test]... and her actions prior to the initiation of divorce proceedings might support a determination that her challenge was barred by equitable estoppel.... For the same reasons, Father would also appear to be barred from seeking to disestablish paternity of [child] should he ever choose to do so."

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