Riley Wright: Family Lawyer Herriman Utah

If you are considering starting a family through artificial reproductive techniques, speak to an experienced Herriman Utah family lawyer. The landmark case in Utah on the issue of paternity is the Kimberlee case. Kimberlee and Kelly Pearson were happily married until Kimberlee had an affair with Pete Thanos. As a result of the affair, Kimberlee conceived a child, Z.P. Instead of walking away, Kelly agreed to stay in the marriage and to parent the child. He named the child and signed his birth certificate. Pete had only limited contact with the child because Kelly assumed the role of the child’s father.

When the baby was about nine months old, the couple decided to walk away from the marriage, although Kelly did continue to act as a parent to Z.P. and N.P., his biological child with Kimberlee. With Kelly out of the picture, Pete spent time with Kimberlee and Z.P. Z.P. was fifteen months old when Kimberlee filed for divorce. Pete attempted to intervene in the matter, so that he could be adjudicated as Z.P.’s father. In light of Pete’s limited earlier contact with Z.P., the district court commissioner recommended that he not be permitted to intervene. The commissioner was concerned that allowing Pete to establish his paternity would interfere with the father-son relationship that existed between Kelly and Z.P. After a hearing, the district court adjudicated Pete as Z.P.’s father and awarded him joint legal custody with Kimberlee. Kelly was awarded visitation rights. The Utah Court of Appeals reversed the district court. The appellate court concluded that Pete did not have standing to contest Kelly’s presumption of paternity, so Kelly was still Z.P.’s legal father. Kelly’s paternity was established by his marriage to Kimberlee.

The Supreme Court of Utah affirmed the court of appeal’s decision. While the state supreme court acknowledged that it had permitted the marital presumption to be challenged in several cases, the court opined that the Pearsons’ situation was different because the couple was still married when the child was born. Moreover, Kimberlee had allowed Kelly to establish a parent-child relationship with Z.P. The extramarital affair and the pregnancy did not end the marriage. Before the baby was born, the couple decided to stay married and to let Kelly act as a father to the child. When the child was born, the couple’s commitment to their marriage did not waver. Thus, the marriage remained intact and entitled to be legally protected from a third party seeking to challenge the paternity of the woman’s husband. Since the marital relationship includes the man, the woman, and the child, it warrants protection even after one party files for divorce. Moreover, the court needed to bar a challenge to Kelly’s paternity in order to protect the relationship he had established with the child because that relationship survived the divorce. As a matter of fairness, a man who commits to parent an extramarital child should not have his paternity attacked after he has become attached to the child.

When the couple decided to end the marriage, there appeared to be no good reason to prevent a challenge to the husband’s paternity. Another man’s claim of paternity would not cause tension in the marriage because the marriage was already over. However, instead of just focusing on the marital relationship, the court emphasized the existence of an intact marital unit. That unit included the child. The court decided to expand the purpose of preserving intact marriages broadly to include preserving established parent-child relationships. In this case, the parent-child relationship survived the divorce because Kelly maintained a relationship with the child after the divorce. Thus, it was necessary to prevent Pete from rebutting Kelly’s paternity in order to preserve that relationship. Courts have also taken that approach to promote the best interests of the child.

Under this doctrine, a person will be permitted to challenge the husband’s paternity only if doing so will promote the best interests of the child. Currently, the main way to rebut the husband’s paternity is to present DNA evidence that the husband is not the child’s biological father. This DNA evidence may be obtained through blood tests of cheek swabs. DNA tests are inexpensive and accessible, so it is relatively easy to determine if the woman’s husband is not the child’s biological father. Nonetheless, courts have held that, if the presumption of paternity applies, blood test results do not matter until the presumption has been rebutted. In some cases, in order to protect the best interests of the child, courts have the authority to practice judicial ignorance. If the court decides the child will be hurt by the discovery that the woman’s husband is not the child’s biological father, the court has the power to refuse to order blood tests. Hence, the blood test evidence is deemed inadmissible even if blood tests have been conducted. In making that decision, the court will consider several factors including the relationship between the child and the woman’s husband, the availability of another male figure who is willing to assume the paternal role, and the child’s relationship with that man.

Non-marital child inheritance

Initially, the establishment of paternity that entitled the non-marital child to lifetime support did not extend to inheritance rights. In some circumstances, the obligation of paternal support ceased at the death of the nonmarital child’s legal father. This was the case even if the non-marital child was a minor and/or disabled. Inheritance was the last right that was denied to non-marital children. Finally, the U.S. Supreme Court had to step in and clarify the actions that states were required to take to ensure that non-marital children were not denied the equal protection of the law. The Supreme Court acknowledged that it was important for the state to reward people for getting married before having children. Nonetheless, the Court felt that the legislature could fulfill its objectives without enacting statutes that punished non-marital children for existing.

Children, including non-marital children, were unable to control their parents’ actions, so the law should not disadvantage them because of those parental actions. Further, the Court noted that non-marital children were powerless to force their parents to satisfy the conditions set forth in the statute. As a result, it would be unfair if non-marital children were unable to take steps to inherit from their fathers because their parents failed to marry and/or their fathers refused to acknowledge them.

The Supreme Court thought that it was important to give a man the right to present evidence showing that he was not the father of a non-marital child. The establishment of a father-child relationship places numerous legal obligations on a man. As a result, the man should be afforded the opportunity to challenge false claims of paternity.

Since the legal status of non-marital children is different from that of marital children, their rights with regard to inheritance may be different as long as they are given an opportunity to inherit from their fathers.

Children of Passion

When courts adjudicate paternity in cases dealing with children of passion, they focus upon the needs of the children instead of the actions of the men. A fornicating man runs the risk of conceiving a child when he uses sexual intercourse to donate his sperm to a woman who is not his wife because no form of birth control is one hundred percent effective when it comes to preventing pregnancy. Therefore, the man who chooses not to remain celibate should have to live with the consequences of his actions. One of those consequences is being financially responsible for his biological children who are conceived by nature. The sperm donor who conceives using scientific methods does not have to deal with that consequence.

Children of passion may be created without discussion or conversation. Hormones go wild, and overactive libidos turn adults into teenagers. The end result is the unplanned conception of children. The women who choose not to exercise the abortion or adoption option no longer have to bear the financial burden of raising their children alone. A married woman can usually rely on her husband for financial support even if the child resembles the mailman or the pool boy. If the woman is unmarried, the father is on the hook for at least eighteen years of child support. These men have the right to walk away from the women and the children, but they might as well leave their checkbooks behind because the children need food, clothing, and shelter. Courts are going to take steps to make sure that the men involved in the situations help to provide those necessities. Ironically, children of science are not treated with the same care. Children of science are often conceived after much discussion and planning. Unlike the women who give birth to children of passion, the mothers of children of science must make arrangements to ensure that they have legal fathers before those children are even conceived. If the women fail to take the necessary steps, they are solely responsible for financially supporting the children of science.

Artificial Insemination

To start the reproductive process, the semen or sperm of a male donor is the prerequisite. In truth, the male progenitor is not “donating” his semen or sperm for he is generally paid by the attending physician or by the sperm bank or by the parties themselves seeking artificial conception. It is the physician who generally selects the donor and maintains the secrecy of the donor’s identity.

Donor insemination is also sought by unmarried women without male partners; they frequently plan to rear offspring alone or in a same-sex family. The legal rights of the donor of semen or sperm have generally not included any relationship with the conceived child (unless the donor is the husband of the woman whose egg was so fertilized). The male donor might well enter into a contract with the married couple, allowing him to have some rearing rights and duties in the offspring. Such agreements have been recognized where the recipient of the sperm is unmarried, perhaps to ensure a male-rearing parent for the offspring. Where the recipient of the sperm is married, such a rearing right would seriously interfere with normal family upbringing.

In the creation of the new family by artificial conception and in accord with modern genetics, there is ever present the issue of legal liability upon the various participants in the new reproductive process.

In this remarkable drama of new reproductive technologies, the dramatis personae, or list of characters, is ever growing as the mystery of the brave new world unfolds. It is already possible for a child to have five different “parents”: (1) the woman who donated the egg; (2) the man who donated the sperm; (3) the woman to whose uterus the fertilized embryo is transferred so that she can carry it to birth; and (4) and (5) the man and woman who will receive and presumably raise the child. In addition to these five persons, there are the adoptive parents; the equitable or foster parents, and the attending physician, along with other personnel, including a sperm bank that participated in the fertilization. To complicate the process are the twin concepts of secrecy and anonymity, which permeate the entire process.

It should be noted that section 5 of the Uniform Parentage Act exempts the donor from any legal relationship to the child of a married woman. The donor of the semen or sperm is absolved from any legal rights or obligations with respect to the child conceived. The Uniform Parentage Act was promulgated in 1973 to establish the rights of illegitimate and legitimate children on equal terms and also to identify the person against whom these rights may be asserted. The act defines the parent- child relationship in terms of a relationship that disregards the parents’ marital status, although it provides for rebuttable presumptions of parentage. The act sets forth the procedures for bringing a parentage suit under sections 6-24. Under section 5 of the act, the husband “is treated in law as if he were the natural father of a child conceived” if the husband and wife had consented in writing to have the wife artificially inseminated by a donor and if the insemination is performed by a licensed physician. This consent form must be filed with the State Department of Health and kept in a sealed file. The sperm donor who donates for a married woman other than his wife is deemed not to be the natural father of the child so conceived. Utah has its own version of this Act.

If you are involved in paternity litigation, consult with an experienced Herriman Utah Family Lawyer.

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