UNWED FATHERS: Preventing Your Newborn from Being Adopted in Utah.

Erik L. Smith

 

 

UNWED FATHERS: Preventing Your Newborn from Being Adopted in Utah.


By


Erik L. Smith1


A. INTRO

In 2004, I told unwed fathers how to prevent their infant children from being adopted without their consent generally.2 Because many unwed mothers are going to Utah to thwart unwed fathers, you need to know how to prevent your child from being adopted in Utah. This article applies to any unwed biological father who has reason to suspect that his child will be surrendered for adoption in Utah before the child is six months old. If the pregnant mother has hinted about going to Utah, then you should follow Utah law.

This article does not apply to fathers of children over six months old.3 (Contact an attorney licensed in Utah for advice on how to fulfill those requirements.) You must follow Utah law even if you helped parent the child.4 Do not wait until you are refused visitation to assert your rights.5 If the mother is married or another man is the acknowledged or legally recognized father, other laws may apply.6



B. DEFINITIONS

The following definitions apply:

  • Unwed father: Any biological father not married to the mother.7


  • Home state: The state where the child was conceived, or where the mother last resided.8

 

  • Qualifying communication: A communication from the mother, her family, or her agents mentioning the mother’s intention to reside in, or travel to, Utah during the pregnancy or soon after the child’s birth, or to have the child adopted in Utah.


C. QUALIFYING CIRCUMSTANCES

You must comply with Utah law once you have reason to know about any of the following circumstances:

  • the child or mother resides, or resided temporarily or permanently, in Utah;

  • the mother intends to give birth, or gave birth, in Utah;

  • the mother intends or intended to have the child adopted either in Utah or under Utah law (e.g. surrendered the child to an adoption agency from Utah).9


Those events are “qualifying circumstances” because they qualify as notice to you that Utah law applies to you.10 Once you have reason to know about a qualifying circumstance, you must follow Utah law to secure your right to be heard in an adoption proceeding. If you do not fulfill the Utah statutory requirements you lose your right to contest the adoption.11 Nothing excuses you from that duty, including someone lying to you or saying something to refute the qualifying circumstance.12 If it turns out later that you lacked reason to know of a qualifying circumstance before the mother consented to adoption, you must have followed the laws of the home state.13 But your ignorance will be almost impossible to prove—especially since agency lawyers probably encourage mothers to give fathers qualifying communications before the birth so that the father cannot rely on the home state laws.

What constitutes a qualifying communication?

A qualifying communication is any communication you receive after the child is conceived and before the mother consents to, or surrenders the child for, adoption, or implies that she will surrender the child for adoption in Utah or under Utah law.14 Thus, if you receive any message from the mother, her family, or her agents mentioning the mother’s intention to live in, or travel to, Utah during the pregnancy or after the birth, you must follow Utah law in case your child is surrendered for adoption there.15 You must also follow Utah law if you have reason to believe that the mother intends to, or is arranging, an adoption in Utah even though she is not in Utah.16 For example, the adoption agency travels to the mother, gets her consent to adoption, and then returns to Utah with the child. In addition, a paternity judgment from a state other than Utah will not necessarily entitle you to notice of an adoption proceeding in Utah.17 Accordingly, putative father registration in the home state will likely be ineffective in Utah.

However unfair those laws may be, you avoid being victimized by following Utah law when needed because otherwise you will not get formal notice of an adoption petition. Here are examples of qualifying communications:

Qualifying communications

  • The pregnant mother told the father by phone: “I am in Utah. You will not father this child. You will pay child support until the child is in college.”18 (That the mother had a history of lying to the father was irrelevant.)19

 

  • The pregnant mother told the father she had moved to Utah. (That held even though the mother later told the father she had not moved to Utah and she had gotten a restraining order prohibiting the father from contacting her.)20


  • The unwed father visited the child in Utah before the mother consented to adoption by the maternal grandparents.21


  • Eight days before the mother relinquished the child, the father learned that the child had been born in Utah.22


Deadline for complying with the statutory requirements

You have 20 days from the date you have reason to know of a qualifying circumstance to fulfill Utah’s statutory requirements.23 Alternatively, you have until the date the mother consents to, or relinquishes the child for, adoption—if that date is later than the 20 days.24 Because you may not know the child’s birthdate, assume the deadline is the earlier of those two possible dates. Mathematically, the 20-day deadline does not apply if you discovered the need to follow Utah law more than 20 days before the birth because the mother’s consent or relinquishment would be later than 20 days. (The mother cannot legally consent or relinquish until at least one day after the birth.) If you miss the 20 day period, you must hope that the mother has not consented to adoption or relinquished the child yet.



Computing the target deadline (assuming the mother consents one day after the birth):

 

  • If you first learn of a qualifying circumstance on July 5, and the child is born on July 20, your deadline for fulfilling the statutory requirements is July 25. The court clerk and the vital records office must receive your documents by July 25. The date you mail the documents does not control.25


  • If you receive a qualifying communication on July 5, and the child is born on July 24, the target deadline is July 25.

 

  • If you receive a qualifying communication on July 1, and the child is born July 5, your deadline is July 20. (The “20 days” ends more than one day after the birth.)

 

  • If the child was conceived in Utah, or you knew about any of the qualifying circumstances, more than 20 days before the birth, then your presumed deadline is the day after the child’s birth.

 

You will not be excused from complying with the deadline should the child be born early. Early labor can be induced. So act during the pregnancy, if possible.

D. FULFILLING THE STATUTORY REQUIREMENTS


Utah law requires you to do the following:

  • Offer to pay, and pay, pregnancy and birth related expenses during the pregnancy. If the mother prevented you from doing that, or she refused your support offers, you must describe that circumstance in the sworn affidavit mentioned below.26


  • File a paternity claim with an attached sworn affidavit of commitment in a Utah district court;


  • File a Notice of Commencement of Paternity Action and a copy of the paternity claim with the registrar of vital statistics in the Utah Department of Health;


If the 20-day exception does not apply to you, then you must do all of the above things before the mother consents to, or relinquishes the child for, adoption-- whichever is earlier.27 Because the mother cannot consent or relinquish until 24 hours after the birth,28 you have at least one business day after the birth to fulfill the requirements.29

Paternity claim and affidavit


Because the paternity claim must be filed as a lawsuit in a Utah district court,30 you should hire an attorney to help you. The commitment affidavit must be included with that filing (presumably attached to the paternity claim document). Great care must be taken in writing the affidavit. Your affidavit must be signed before a notary public. Notaries can be found at banks or law offices. A valid affidavit must identify you, state that you are a competent adult, that you have first- hand knowledge of the statements you are making, and the statements are true to the best of your recollection and knowledge. In addition, the affidavit must:

  • State that you are fully able and willing to have full custody of the child;

  • Describe your plans for care of the child;

  • State that you agree to a court order of child support;

  • State that you agree to the payment of expenses incurred in connection with the mother's pregnancy and the child's birth;


  • Describe how you helped pay pregnancy and birth related expenses in accordance with your financial ability or describe how you were prevented from helping pay those expenses.31


A sample affidavit is included later in this article. You will not be entitled to notice of the adoption if you do not follow those requirements.

In the adoption hearing in court, you will need to show that you offered to pay, and paid, a fair and reasonable amount of the expenses incurred in connection with the mother's pregnancy and the child's birth, in line with your financial ability. The support requirement will be waived only if you lacked actual knowledge of the pregnancy, the mother refused your financial offers, or the person or agency having lawful custody of the child prevented you from paying those expenses.32 Your commitment affidavit should describe those circumstances.

Willing and able to have full custody

To fulfill this requirement, your affidavit can simply state: "I am willing and able to have full custody of the child."

Describing your plans for care of the child

You must describe how you will financially care for the child and provide some glimpse into how you will meet daily care-giving responsibilities.33 Therefore, you must identify your job, state your annual or monthly income, and describe who will care for the child while you are working to earn that income.

Agree to court ordered child support

Your affidavit can simply state: "I agree to a court order of child support."

Agree to pay pregnancy and birth-related expenses

Your affidavit can simply state: "I also agree to the payment of expenses incurred in connection with the mother's pregnancy and the child's birth."



Describing how you paid pregnancy and birth-related expenses


Describe briefly how much you paid to the mother or her agents and how you paid it. If you were prevented from paying birth or pregnancy-related expenses, briefly described how you tried to pay them and how you were prevented from paying them.

SIGN ALL DOCUMENTS.


E. CONTACT INFORMATION


DISTRICT COURTS


You can find contact information for some Utah district courts at: http://www.utcourts.gov/courts/dist/. (Last visited December 27, 2011.)


The address for the District Court for Salt Lake County is:


Clerk of Court

Salt Lake City District Court

450 South State Street

P. O. Box 1860

Salt Lake City, Utah 84114-1860

(801) 238-7334

 

OFFICE OF VITAL RECORDS


Mailing Address:


Office of Vital Records and Statistics
P.O. Box 141012
Salt Lake City UT 84114-1012


Street Address:


288 N, 1460 W
Marth Hughes Cannon Health Building
Salt Lake City UT 84114-1012


General telephone: (801) 538-6105, 6380, 6363.



Sample documents

Paternity Claim


If at all possible, retain an attorney to draft and file the paternity claim and the notice of filing of paternity claim. If you cannot retain an attorney see www.utcourts.gov under the link: OCAP: Document preparation for writing your own paternity petition. Remember, you will need to pay a filing fee and perhaps a DNA testing fee at the time of filing with the court.34 As of December 27, 2011 the fees were $360.00 for filing the paternity petition, excluding fees for requesting DNA testing and for filing online. Best is to call the clerk of court immediately to confirm the fee amount and how to pay it. If you cannot afford the fees, ask the clerk of court if you can waive the fees and how to do that.

Unless you can file documents in person, you will probably lack time to file the paternity petition and the notice of filing with the Vital Records office through the mail. Consulting an attorney will be the safest thing to do. On the other hand, flying round trip to Utah to file the documents yourself may cost less than the lawyer’s retainer.

Child Care Affidavit


See sample below.


Notice of Commencment of Paternity Action


Obtain a form from: [xxx]


Letter to Clerk (re Paternity Claim filing)


See sample below.


Letter to Clerk (re Notice of Paternity Claim filing)


See sample below.


STATE OF OHIO )

)

MONTGOMERY COUNTY )


AFFIDAVIT OF UNWED FATHER ERIK L. SMITH


Before me, the undersigned notary, on this day personally appeared Erik L. Smith, the affiant, a person whose identity is known to me. After I administered an oath to affiant, affiant testified:


1. "My name is Erik L. Smith. I am competent to make this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct.


2. I am the biological father of the child due to be born to Mary Jones on or about November 1, 2013.


3. I offered to pay, and paid, pregnancy and birth-related expenses for Miss Jones. Specifically, during the pregnancy, I sent Miss Jones two checks for $200 for pre-natal care visits and support. Those checks have not been cashed.


4. I also sent a third check for $200 for pregnancy expenses to Miss Jones parents, requesting they forward the money on to Miss Jones, as she had moved and I lacked her current address. That third check has not been cashed.


5. I also tried to learn Miss Jones' new address from her parents, but her parents refused me to give me any information and threatened me with a restraining order.


6. I am willing and able to have full custody of the child.


7. I am employed with ABC Construction Company and earn $1200-1400 per month. I work 40 hours per week. I will care for the child myself when I am not working. During my work hours my mother and sister will care for the child as they live only one mile away from me and are willing and able to care for the child.


8. Daycare is also available in my neighborhood for a reasonable cost if needed.


9. I agree to a court order of child support.


10. I also agree to the payment of expenses incurred in connection with the mother's pregnancy and the child's birth."

____________________________

Erik L. Smith

SWORN TO and SUBSCRIBED before me by Erik L. Smith on October 29, 2011.

______________________________

Notary Public in and for

the State of Ohio

Erik L. Smith

123 Perry Street

Dayton, Ohio 45420

(614)439-1539

edenstore@msn.com


January 2, 2012


RE: Paternity Claim filing

Clerk of District Court

Salt Lake County

[address]


Dear Clerk:


Enclosed are one original, and three copies of, paternity claim, with child care affidavit attached, a check for the filing fee, and an SASE. Please file the paternity claim and attached affidavit in the Court. Please file-stamp the copies of the paternity claim and return them to me in the SASE provided so that I can file notice with the Office of Vital Records.


Do not hesitate to call me if you have questions.


Yours truly,




Erik L. Smith



Erik L. Smith

123 Perry Street

Dayton, Ohio 45420

(614)439-1539

edenstore@msn.com



January 2, 2012

Office of Vital Records and Statistics RE: Notice of Paternity Claim filing

288 North, 1460 West Case No. [write case number from filed claim]

P.O. Box 141012
Salt Lake City UT 84114-1012



Dear Office of Vital Statistics:


Enclosed are one original, and two copies of, a Notice of Commencement of Paternity Action, and an attached copy of the claim that was filed in the district court. An SASE is also enclosed. Please enter the Notice of Commencement of Paternity Action in the registry. Please file-stamp the copies and return them to me in the SASE provided. Thank you very much.


Do not hesitate to call me if you have questions.


Yours truly,



Erik L. Smith


[Enclose a copy of the file-stamped paternity claim that you filed in district court.]

1 Erik L. Smith can be reached at edenstore@msn.com. Other articles by Mr. Smith include: Jurisdiction in Contested Adoptions, 21 Probate Law Journal of Ohio 1 (Sep/Oct 2010); Putative Father Registry Deadlines and the Servicemembers Civil Relief Act, 60 A. F. L. Rev. 175 (2007); Understanding the Legal System, From Calling to Courtroom, Midwivestrial, June 2004.



2 http://adoption.about.com/cs/adoptionrights/a/unwedfath.htm.)



3 Utah Code 78B-6-121(1) and (2) applies to those fathers.



4 In re Adoption of T.B., 2010 UT App. 10 (Because the unwed father had not followed the statutory requirements, he could not stop the adoption despite having visited the child regularly during the child’s first five months of life.)



5 Id.



6 Utah Code 78B-15-401(3).



7 If you are listed on the birth certificate, or you and the mother have formally acknowledged your paternity, consult a Utah attorney to see if other laws apply to you.



8 See, e.g., In re Adoption of I.K., 2009 UT 70, P8.



9 Utah Code 78B-6-122(1)(a).



10 Utah Code 78B-6-122(1)(a); O’Dea v. Olea, 2009 UT 46, P26.



11 Utah Code 78B-6-121(3).



12 Utah Code 78B-6-102(6)(d)-(f); 78B-6-106(1).



13 In re Adoption of I.K., 2009 UT 70, P10.



14 Utah Code 78B-6-122(1).



15 Utah Code 78B-6-122.



16 Utah Code 78B-6-122(1)(a)(iv)(B).



17 Utah Code 78B-6-122.5. (Thus the attorney for an unwed father should challenge the validity of this law in his first pleading, e.g. the motion to intervene.)



18 O’Dea v. Olea, 2009 UT 46, P6.



19 Id., O’Dea P42-47.



20 H.U.F. v. W.P.W., 2009 UT 10, P36-38.



21 In re T.B., 2010 UT 42.



22 Rowe v. Baird, 2009 UT App. 24.



23 Utah Code 78B-6-122(1)(c)(ii)(B).



24 Id.



25 Wells v. Children’s Aid Society of Utah, 681 P.2d199, 207 (Utah 1984) (Father’s notice of paternity claim was untimely where he mailed it one day before the birth, but Vital Statistics received it six days after the birth.)



26 Utah Code 78B-6-121(3); 78B-15-401(2).



27 Utah Code 78B-6-121(3).



28 Utah Code 78B-6-125(1).



29 Thurnwald v. A.E., 2007 UT 38, P27.



30 Utah Code 78B-6-121(3)(a).



31 Utah Code 78B-6-121(3).



32 Utah Code Ann. 78B-6-121(3)(d).



33 E.G. v. C.C.D., 2010 UT App. 114, P8.



34 See Utah Code 78A-2-501 and 78A-2-301 and call the court clerk for current fees.



15

About the Author

Erik L. Smith is a certified paralegal in Columbus, Ohio and an independent legal researcher for family law and personal injury attorneys. He has appeared on NPR, CNN, and PBS regarding adoption law and has published several of his articles on the internet and in hard copy publications such as Ohio Lawyer, Air Force Law Review, Probate Law Journal of Ohio, Adoption Today, and Midwifery Today.

Footnotes
Copyright © Erik L. Smith.