Le Knapp: Paternity Cases

Under Utah law, if the child is born during the marriage of the parents, paternity is automatically established. The legal father is the husband and the husband’s name will appear on the birth certificate of the child as the father’s name. However, under Utah law, a child will have no father if the child is born to an unmarried couple and paternity must be established for the father’s name to appear on the child’s birth certificate. To know how you can establish paternity of your child, speak to an experienced Utah paternity attorney.

When the law makes a presumption, the court assumes that the presumed fact is true until it is presented with evidence to the contrary. Legal presumptions are based upon inferences that the law makes. For instance, children are presumed to be their parents’ intestate heirs because the court infers that parents would want their children to have most of their property. If you are fighting a paternity case in Utah consult an experienced Utah paternity attorney.

The issue of paternity comes up in a divorce proceedings where the spouses are fighting on the issue of child support. Often the husband will claim that he is not the father of the child to avoid paying child support. In such cases, a paternity lawsuit can help determine the biological father of the child.

Presumptions

The law presumes that a man is the father of all children his wife conceives during their marriage. Sometimes a man will assume the paternity of a child born to his wife and “hold himself out” as the child’s father, even if he knows himself not to be the father or if his paternity is uncertain. If there is a subsequent divorce, he may raise the question of paternity for the first time in the divorce proceeding. In most cases, a man who assumes paternity (either by signing the birth certificate or giving the appearance to the community that he is the child’s father) cannot later deny that he is the child’s father. This is often true even if he learns for the first time during the divorce proceeding that he is not or may not be the father of the children.

In past years, an unmarried mother would often look to AFDC for support of her child(ren) without attempting to identify and pursue the child’s father for support. Today, however, all jurisdictions are obligated to assist single mothers in taking an active role in establishing paternity; they risk losing benefits if they refuse to participate. It is not unusual, for example, for a hospital with an active maternity ward to offer assistance with establishing paternity to an unmarried woman who does not identify the father of her child.

In recent years, an ever-increasing number of children have been born without a father who acknowledges his fatherhood. The number of out-of-wedlock births has skyrocketed, and there has also been a dramatic increase in the number of cases involving husbands or wives who claim that a child conceived within a marriage was fathered by another man. One of the many consequences of this is that such children do not obtain their legal right of the care and support of two parents.

In earlier years, when the social welfare system borne by the state and federal governments was not as overburdened as it is today. Attempts were made to establish paternity – i.e., to identify the father of the child – but few were successful. One of the major reasons for this was that the available biological tests were not very sophisticated. Their primary ability was to establish that a “putative” father – a man claiming or claimed to be the father – was not, in fact, the father. The method involved blood tests of the mother, father, and child. If the child had a blood type that could not have been inherited from that father, paternity was denied. If the child had the blood type of the mother or of neither parent, the test was unable to assist in establishing paternity.
The General Rule
The general rule is that a man is presumed (that is, the law says he is unless he can prove otherwise) to be the father of a child under one or more of the following circumstances:
• he was married to the mother at the time of the child’s birth or conception;
• he married or attempted to lawfully marry the mother at the time of the child’s birth or conception, but the marriage was annulled or declared invalid (e.g., one parent was not yet legally divorced from a former spouse);
• he voluntarily assumed custody of the child (with or without the mother) and held the child out to the public as belonging to him;
• under state law, he voluntarily acknowledged paternity or parental responsibility, without objection of the mother;
• with the consent of the mother, his name appears on the birth certificate of the child.
Historically, a determination of paternity of an unmarried man was considered to be a criminal proceeding that would be brought under laws that made “desertion” of a child (or a wife) a criminal offense.
If you are a man facing a paternity lawsuit, consult with an experienced Utah paternity attorney.
Establishing Paternity
Paternity can be established in a number of ways. The first is by agreement of the parties that a particular man is the father of the child in question. The procedures vary by state, but if the parents are unmarried, they can register their voluntary acknowledgment of paternity in the appropriate court or on the birth certificate of the child. If the mother was married to another man at the time of the conception or birth of the child, both her husband and the putative or alleged father, as well as the mother, may be required to agree voluntarily to paternity.
Voluntary Declaration
Under Utah paternity laws, it is possible to establish paternity by signing a voluntary declaration of paternity. This is generally done at hospital at the time the child is born. It can also be done later by collecting the form from the Vital Records and Statistics Office. Local health departments will also provide this form. Both parents must sign the form and must be witnessed by two adults who are not related to the father and mother. If the father is a minor at that time, the form must be also be signed by his parent or guardian. The completed form must be submitted to the Viral Records and Statistics Office.
Once a parent has signed the voluntary declaration form, he or she can still cancel the declaration. It can be done within 60 days or before a child support order is passed. To cancel a voluntary declaration of paternity, an application must be made to the Vital Records and Statistics office. The Office will notify the other parent. Once the declaration is cancelled, the father’s name will be expunged from the birth certificate.
Paternity lawsuit
The alternative method of establishing paternity, if the necessary parties will not agree, is through a lawsuit. The first question that normally arises when a woman considers bringing a lawsuit to establish the paternity of her child is where to bring the suit, particularly if the putative father lives in another state. Under Utah law, the lawsuit must be filed in the district or juvenile court where the child lives. It does not matter that the mother or father lives in another state.
In some cases, the woman does not know who the father of the child is but knows of more than one possible candidate. In such an instance, she can sue all putative fathers in the same lawsuit. The court will order, as in any case of contested paternity, that all defendants submit to whatever tests of paternity that the state requires and will use in court. If after testing it is determined that a man could not be the father of the child, he will automatically be dismissed from the case.
In virtually all cases, the mother will be required to testify about whether the putative father had sexual access to her during the likely time that the child was conceived. The putative father will be required to testify in court. The putative father can exercise his fifth amendment privilege and decline to testify stating that by doing so he would end up incriminating himself. The absence of a putative father does not affect the proceedings. A paternity decision can be passed in his absence and he has to abide by it.
If you are filing a lawsuit to determine the paternity of your child, speak to an experienced Utah paternity attorney.
Administrative proceeding by the Office of Recovery Services.
Under Utah law, the Office of Recovery Services can also initiate a paternity action through an administrative proceeding in cases where the child is receiving public assistance. The ORS initiates this proceeding when either parent applies for assistance to the ORS for assistance to obtain or update a child support order. The ORS will require both parents to appear and submit themselves to a DNA test. Paternity orders passed by the ORS have the same effect as a court order. If you have received any notice from the ORS asking you to submit yourself to a DNA test to determine paternity, talk to an experienced Utah paternity attorney to know what to expect.
Effects of Paternity Rulings
So what happens if the court does, in fact, find that a particular man is the father of a child? First, the determination is valid for all purposes and includes having a new birth certificate issued for the child, if necessary. It entitles the child to the financial support of its father as though it had been born within a marriage or had been formally acknowledged by agreement. The laws are intended to provide the same level of support to children born out of wedlock as are available to children born within a marriage.
A finding of paternity also means that the father is entitled to child custody or visitation, even if the mother is living with or married to another man. A determination of custody or visitation is always made by the court on the basis of what it considers to be in the best interest of the child. In order for a man who is found to be the father of a child to obtain rights of custody or visitation, he must initiate a separate proceeding (although often in the same court). Except in extreme situations, the court will usually allow at least limited visitation for a man who is ordered to pay support.
Another effect of a paternity proceeding concerns cases in which the mother of the child dies, abandons a child, places it up for adoption, or has the child involuntarily removed from her custody because of abuse, neglect, or inability to care for it. In such a case, a biological father who is unmarried to the mother has a right of custody if he has acknowledged paternity or if it has been established through a paternity proceeding. Unless paternity has already been determined, however, a man who did not previously establish his paternity will probably lose any right to custody.
Yet another effect of paternity proceedings concerns a child’s right to inherit from its biological father, whether a trust or will is left. If the father dies intestate, i.e., leaves no will, a child fathered out of wedlock can claim a right to his estate only if his father either voluntarily acknowledged paternity during his lifetime or was determined to be the father during a paternity proceeding.
The determination of paternity has proven to be an increasingly important means of securing child support. Once paternity is established, however, collection of support is still a major hurdle.
If you are planning on filing a paternity lawsuit in Utah, consult with an experienced paternity lawyer. The lawyer can review your circumstances and advise you on your options.

Paternity Lawyer in Utah Free Consultation

When you need legal help from a paternity attorney in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. Whether it is Child Support, Child Custody, Parent time, visitation, and more. We want to help you.