(CN) - Utah does not discriminate against fathers in requiring unmarried men to file a separate child-support affidavit to claim paternity rights, the divided Utah Supreme Court ruled.
A paramour of William Bolden's became pregnant with his child in 2010, and two weeks before the baby boy's birth on March 26, 2011, Bolden petitioned a court in Provo, Utah, to adjudicate paternity and establish custody, parent time, and child support.
Though Bolden filed a notice one week later in Utah's putative-father registry that he had commenced paternity proceedings, he did not file a required affidavit asserting his willingness to assume child custody and submit to a child-support order. He also did not disclose his child care plans.
Bolden says his attorney failed to tell him that state law required such an affidavit.
Bolden had also offered - both before and after the birth of J.S. on March 26, 2011 - to pay pregnancy-related medical costs, but the mother insisted that her insurance would cover them.
The mother let Bolden visit J.S. in the hospital twice. Three days after giving birth, she gave the child up to prospective adoptive parents, John and Jane Doe.
This couple told Bolden they planned to adopt J.S. without his consent, asserting that his lack of affidavit forfeited his rights.
Bolden then filed the required affidavit and moved to intervene to prevent the adoption and assert his parental rights.
After the Does opposed Bolden's motion, he acquired new counsel and challenged the constitutionality of the law's affidavit requirement.
Bolden later moved to dismiss the adoption petition on constitutional grounds, arguing that he was the undisputed father of J.S., did not consent to the adoption, and had strictly and timely complied with most of the statutory requirements.
The district court rejected Bolden's claims, finding that he had no right to contest the adoption because he had not filed the affidavit.
The Utah Supreme Court tossed Bolden's appeal aside Tuesday, 3-2, calling the affidavit "a simple, straightforward hurdle - one that countless unwed fathers have cleared."
"Bolden does not claim that the Adoption Act infringes his procedural due process right to notice and an opportunity to be heard; nor could he, as his failure to file the affidavit is a result of his own procedural misstep (allegedly in accordance with the misadvice of counsel) and not some procedural defect in the law," Justice Thomas Lee wrote for the majority (parentheses in original). "And Bolden fails to establish an infringement of a fundamental right of substantive due process, as he fails to present evidence that the right he asserts (to preserve his rights as an unwed father without filing an affidavit) is a matter deeply rooted in established history and tradition."
Larry Jenkins, an attorney for the child's adoptive parents, told Deseret News: "The family's grateful that the court ruled as it did. Hopefully, things can finally come to a conclusion."
But Chief Justice Ronald Nehring and Justice Jill Parrish dissented, saying they would have struck down the affidavit requirement.
"The affidavit requirement goes one step too far by requiring unwed fathers, but not unwed mothers, to make forward-looking commitments to child rearing," Nehrig wrote. "In so doing, the affidavit requirement tips the balance against the unwed father by requiring him to demonstrate more than the unwed mother demonstrates by the sheer fact of her biology."
Scott Wiser, one of Bolden's attorneys, told Deseret that an appeal to the U.S. Supreme Court is possible. Regardless of the outcome, however, "I think a poor child is losing here and most importantly, it's a child who is never going to have a relationship with a dad who was committed and wanted to be involved in his son's life and wanted to support him," Wiser said.
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