Utah Father’s Rights Case-William E. Bolden UPDATED

Another father has been Jenkins-ed.

“An attorney for an unmarried father asked the Utah Supreme Court on Monday to find unconstitutional a provision in the state’s adoption law that requires unwed biological fathers to file a sworn affidavit in addition to initiating a court paternity action and registering a paternity notice with the state.

Scott B. Wiser, attorney for William E. Bolden, said the affidavit is duplicative, redundant and unnecessary, and discriminates against unmarried fathers since unmarried mothers are not required to provide similar assurances about how they will care for and support a child.
But Larry Jenkins, an attorney representing the child’s adoptive parents, said a birth mother’s connection to her child is clear cut and the state has a legitimate interest in requiring unwed fathers to not only declare paternity but provide a sworn statement as to how they will fully meet parental responsibilities.

Bolden, who was then represented by a different attorney, filed a notice of paternity with the Utah Department of Health and a court paternity petition in mid-March 2011, about two weeks before his ex-girlfriend was expected to give birth to his son. But apparently his attorney failed to advise him of the need to also file the sworn affidavit.

“I was excited to have a son and was looking forward to it,” said Bolden, a former semi-pro football player. Bolden said he made clear to the birth mother and to LDS Family Services, which handled the placement, before and at the time of the baby’s birth that he opposed adoption.

The baby was born March 26, 2011. Bolden said the birth mother allowed him to visit his son before she was released from the hospital.

But she placed the infant for adoption three days later, after learning Bolden had not signed his paternity petition or filed a sworn affidavit, according to a court document.

Bolden subsequently sought to intervene in the adoption proceeding. Last summer, a 4th District Court judge ruled that, while Bolden had filed a notice and petition, he had not fully complied with Utah’s adoption statute because he had not also filed a sworn affidavit detailing his support and child care plans, and thus failed to protect his rights. Bolden appealed that decision.

In a court document, Wiser said the “ultimate question” in the case is “why does the law presume that unwed fathers who have formally identified themselves before their child’s birth are unwilling to assume parental responsibilities, while presuming that all unmarried mothers will fulfill theirs?”

“To presume that a parent will be more or less committed than another parent solely on the basis of gender is irrational under any standard of review,” Wiser said. “A mother is not required to provide a sworn affidavit showing she is capable of assuming legal custody of a child or to disclose what her childcare plans would be in order to assure the state and would-be adoptive parents that she has ‘at least thought through what [s]he would need to do to fulfill [her] parental responsibilities.’ ”

“That is the distinction that renders this requirement constitutional on its face,” Wiser said. “The bottom line is that there needs to be a limiting principle to the scope of the Legislature’s authority to regulate the conditions necessary for an unwed father to perfect his rights.”

The justices focused on the rational basis for requiring unwed fathers to submit a sworn affidavit, noting as Justice Thomas Lee put it, that the information it contains would be “terribly useful to a mother deciding whether to put a child up for adoption” to have a biological father affirm his parental interest and commitment to a child’s care.

“In any adoption case, the mother is voluntarily giving up [those] rights,” Lee said.

Jenkins told the justices an unwed father has no fundamental, legal rights unless he complies fully with the law.

In a court document, he noted that it is “commonplace” for unwed mothers to be lulled into parenting a child based on false promises made by the father.

“If a man is not willing to legally commit to the mother and her future children by marrying her prior to the child’s conception, it is not unduly harsh to require him to file a sworn affidavit making a legally binding commitment to his parental responsibilities prior to her placing the child for adoption,” he said.

“That didn’t happen here,” Jenkins said. “There are rational reasons, compelling reasons, why the Legislature would require an unmarried father to file an affidavit like this. It’s the only way to be sure someone is willing to step up.”

“Simply filing a paternity petition does not show that an unwed father is willing to assume the parental role and fulfill corresponding responsibilities because a paternity petition is not required to include a request for custody, child support, or payment of pregnancy related expenses or childbirth expenses,” Jenkins said in the court brief. “A paternity petition is also not required to set forth a plan for care of the child.”

Utah adoption law provision discriminates against men, attorney claims

[The Salt Lake Tribune 6/4/13 by Brooke Adams]

See our other Father’s Rights’ cases here.

REFORM Puzzle Piece

Update:”A sharply divided Utah Supreme Court ruled Tuesday that in order to establish paternity, unwed biological fathers must file a sworn affidavit saying they are able and willing to support their child.

If the father fails to meet this requirement of the Utah Adoption Act — along with other provisions, including registering a paternity notice with the state — he cannot object to an adoption, the court said.

The decision was a defeat for William E. Bolden, an unmarried father who contested the adoption of J.S., whom his ex-girlfriend placed for adoption in 2011. Bolden had fulfilled the other requirements to claim paternity of the child, but failed to file the affidavit.

Scott Wiser, one of Bolden’s attorneys, said an appeal to the U.S. Supreme Court might be an option.

Bolden, 30, a South Ogden resident who works in construction, said the ruling was disappointing but that he hasn’t given up hope.

“It’s been a really rough struggle so far and today was a big letdown,” he said.

Bolden, who also has a daughter, said he has not had contact with his son since soon after the child’s birth in March 2011, but has been sending him birthday and Christmas presents through attorneys. He doesn’t know if the child gets them, he said.

In the majority opinion, Justice Thomas Lee wrote that the affidavit requirement protects “the best interests of children by giving voice in their adoption to those who have established a demonstrated commitment to their well-being.”

The opinion rejects the argument that the affidavit discriminates against unmarried fathers because unmarried mothers are not required to provide similar assurances about how they will care for and support a child. It says a father’s role is inherently different because his connection to his child might be unknown or indeterminate.

“The affidavit is defensible as an attempt to put unwed parents on equal footing,” Lee wrote in the opinion. “Mothers express their commitment to their offspring through the voluntary decision to carry a child to term — a decision that commits them to the statutory responsibility of caring and providing for the child as a legal parent.”

Chief Justice Matthew Durrant and Utah Court of Appeals Judge Gregory Orme — sitting in for Justice Christine Durham, who had recused herself from the case — concurred that Bolden was barred from intervening in the adoption because he failed to preserve his legal rights.

But Justices Ronald Nehring and Jill Parrish each wrote a dissenting opinion, arguing the affidavit requirement unconstitutionally discriminates against unwed fathers on the basis of gender.

Nehring called it “repugnant to the principle of equal protections enshrined in both the United States Constitution and the Utah Constitution.”

“The affidavit requirement reflects a negative stereotype that is commonly wielded against unwed fathers: that they are uninterested in their offspring and ill-suited or incompetent caregivers,” Nehring wrote.

He added: “Indeed, this stereotype is precisely the flip side of the same generalization that has long been applied to women — i.e., that they are naturally well-suited for the responsibilities of childcare and the home.”

According to court documents, Bolden — who was then represented by a different attorney — filed a notice of paternity with the Utah Department of Health and a court paternity petition in mid-March 2011, about two weeks before the expected birth of his child. But his then-attorney failed to advise him of the need to also file the sworn affidavit, he says.

Bolden said he made it clear to his ex-girlfriend and LDS Family Services, which handled the placement, that he opposed an adoption. However, three days after the child was born, after learning Bolden had not signed his paternity petition or filed the sworn affidavit, the birth mother decided to place the child for adoption, court documents say.

The adoptive parents, called John and Jane Doe in court documents, knew Bolden’s identity and that he had made some effort to establish parental rights, the documents say. But they asserted Bolden had no rights because he did not comply with the affidavit requirement and notified him of their intent to adopt without his consent.” 

Utah Supreme Court upholds adoption law requiring affidavits from unwed father
 [Salt Lake City Tribune 11/4/14 by Pamela Manson]