Utah adoption law provision discriminates against men, attorney claims

Utah Supreme Court » He says requiring sworn affidavit of support and child care plans from unwed fathers is unconstitutional.

By Brooke Adams

June 4, 2013 / The Salt Lake Tribune

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.’ "