Pearson v. Pearson

¶1dissenting:

¶2138 I respectfully dissent. The parties originally framed the issues in this case in common law terms, and the questions we accepted for review on certiorari were likewise tied to our common law in the area of paternity. In my consideration of these questions, however, I have become persuaded that the legislature has spoken extensively about these questions, first in the Uniform Act on Paternity in effect at the time of the underlying factual events, and then in the Uniform Parentage Act that became effective in 2005 prior to the issuance of the opinion of the court of appeals. Thus, I believe that it is proper for this court to revisit the common law analysis we undertook in the Schooleraft case, which was decided nearly twenty years ago. In the judicial analytic hierarchy, questions should be resolved with statutory answers prior to recourse to either common law solutions or constitutional review. Where the legislature has expressed public policy, particularly in the family law area, I believe that we should look first to that statutory policy, rather than relying on old common law precedent that predates the statutes, notwithstanding the parties' failure in this instance to frame the issues in statutory terms. Thus, rather than relying on School-craft, I undertake the following analysis based on the legislative scheme governing paternity in the state of Utah.

¶3139 As mentioned above, the Uniform Act on Paternity was in effect from 1965 until 2005, when the legislature passed the Uniform Parentage Act. Although there are many differences between their provisions, my analysis of the effect of the two statutes on the questions raised in this case persuades me that the result under either would be the same. For precedential purposes, therefore, it makes sense to me to apply the policy contained in the current statute, the Uniform Parentage Act (the Act), and to resolve this case pursuant to its provisions.

¶41 40 The Act defines a "[plresumed father" as "a man who, by operation of law under section 78B-15-204, is recognized as the father of a child until that status is rebutted or confirmed as set forth in this chapter." Utah Code Ann. § 78B-15-102(20) (2008). Section 78B-15-204 contains the following presumption of paternity: "(1) A man is presumed to be the father of a child if: (a) he and the mother of the child are married to each other and the child is born during the marriage. ..." Id. § 78B-15-201(1). Subsection (2) of the same section provides that "[al presumption of paternity established under this section may only be rebutted in accordance with section 78B-15-607." Id. § 78B-15-204(2).

¶5T41 The referenced section, section 78B-15-607, is contained in Part 6 of the Act, dealing with "Adjudication of Parentage." Section 602 of that part deals specifically with the question of standing, and says in part that "a proceeding to adjudicate parentage may be maintained by ... (8) a man whose paternity of the child is to be adjudicated...." Id. § 78B-15-602. Section 78B-15-607(3) provides that "[the presumption may be rebutted by: (a) genetic test results that exclude the presumed father." Id. § 78B-15-601(3).

¶6{42 Neither the original presumption nor the rebuttal thereof by genetic testing is the *361end of the matter under the Act, however. The next section, section 78B-15-608, gives the district court the specific authority to "disregard genetic test results that exclude the presumed ... father if the tribunal determines that: (a) the conduct of the mother or the presumed ... father estops that party from denying parentage; and (b) it would be inequitable to disrupt the father-child relationship between the child and the presumed ... father." Id. § 78B-15-608. In this case, the presumed father does not in fact deny parentage, so the predicate for the first finding exists, and the equitable assessment becomes relevant. The statute goes on to list a lengthy series of factors that the district court should consider in performing that assessment:

(2) In determining whether to deny a motion seeking an order to ... disregard genetic test results under this section, the tribunal shall consider the best interest of the child, including the following factors:

(a) the length of time between the proceeding to adjudicate parentage and the time that the presumed ... father was placed on notice that he might not be the genetic father;

(b) the length of time during which the presumed ... father has assumed the role of father of the child;

(c) the facts surrounding the presumed . father's discovery of his possible nonpaternity;

(d) the nature of the relationship between the child and the presumed ... father;

(e) the age of the child;

(£) the harm that may result to the child if presumed ... paternity is successfully disestablished;

(g) the nature of the relationship between the child and any alleged father;

(h) the extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child; and

(i) other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed ... father or the chance of other harm to the child.

(3) If the tribunal denies a motion seeking an order for genetic testing or disregards genetic test results that exclude the presumed ... father, it shall issue an order adjudicating the presumed ... father to be the father of the child.

¶7Id.

¶843 The statute also contemplates several procedural approaches relevant to this case. Section 78B-15-610(1) specifically provides that adjudication of parentage may take place in proceedings for divorce as well as "for adoption, termination of parental rights, child custody or visitation, child support, ... annulment, legal separation or separate maintenance, probate or administration of an estate, or other appropriate proceeding." Id. § 78B-15-610(1). And, section 78B-15-612(2) authorizes the district court to appoint a guardian ad litem to represent the child if it finds that "the interests of the child are not adequately represented." Id. § 78B-15-610(1).

¶91 44 From the foregoing provisions, I take several important policy directives from the legislature: (1) the historic common law presumption in favor of the legitimacy of children born within marriage has been preserved, but is no longer absolute; (2) putative biological fathers whose rights have not been terminated, legally waived, or cut off by an event such as adoption, have standing to seek to rebut the presumption of marital paternity by proof of genetic fatherhood;1 (3) district courts have broad equitable powers to resolve paternity questions, regardless of either the marital presumption or the genetic test results, based on the best interest of the child.2

¶10*362$45 Applying these policy directives to this case, I would abandon the Schoolcraft analysis and defer to the legislative scheme. Given the comprehensiveness of the legislative treatment, it does not make sense, notwithstanding the framing of this case by the parties, for us to continue to rely on outdated and arguably inapplicable precedent. I would thus reverse the opinion of the court of appeals and remand this case directly to the district court, with instructions to grant the appellant standing to intervene for purposes of an adjudication of parentage pursuant to the Act, to conduct a full hearing on the equitable factors the Act sets forth, and to consider whether the appointment of a guardian ad litem is appropriate.