Pearson v. Pearson

1 799 P.2d 710 (Utah 1990).
2008 UT 24
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Kelly F. Pearson, 	No. 20060563
Plaintiff and Respondent,
v.
Kimberlee Y. Pearson,
Defendant and Petitioner. F I L E D
Pete S. Thanos,
Intervenor and Petitioner. 	March 18, 2008
---
Third District, Salt Lake
The Honorable Tyrone E. Medley
No. 004907881
Attorneys: 	Paige Bigelow, Salt Lake City, for plaintiff
Steven H. Gunn, Kellie F. Williams, Jarrod H.
Jennings, Salt Lake City, for defendant and
intervenor
---
On Certiorari to the Utah Court of Appeals
DURRANT, Justice:
INTRODUCTION
¶1 	Petitioner Pete Thanos (“Thanos”) filed a motion to
intervene in the divorce proceedings of petitioner Kimberlee
Pearson (“Kimberlee”) and respondent Kelly Pearson (“Kelly”) in
order to challenge the paternity of the Pearsons’ son Z.P. 	The
district court granted the motion, but the Utah Court of Appeals
reversed, concluding that Thanos lacked standing based on our
decision in In re J.W.F. (Schoolcraft).1
¶2 	We granted certiorari on three questions. 	First,
whether the court of appeals erred in its interpretation and
application of the Schoolcraft analysis set forth by this court.
Second, whether the court of appeals inappropriately relied on
the district court commissioner’s recommendations. 	Third,

2 In re J.W.F, 799 P.2d 710, 713 (Utah 1990).
No. 20060563 	2
whether the court of appeals erred in denying the petition for
rehearing. 	We now affirm the court of appeals’ decision as to
all three issues before us.
BACKGROUND
¶3 	Z.P. was conceived and born into Kimberlee and Kelly
Pearson’s marriage as the result of an extramarital affair
between Kimberlee and Pete Thanos. 	Although both Kelly and
Thanos learned that Z.P. was the biological child of Thanos
during the pregnancy, Kelly agreed to stay with Kimberlee and
raise the child as his own. 	Kelly named Z.P. and was listed as
Z.P.’s father on the birth certificate. 	Thanos spent time with
Z.P. on two occasions during the first month of Z.P.’s life but
did not see the child again until Z.P. was thirteen months old.
Thanos claims that Kelly prevented him from seeing Z.P., but he
admits that he did not want to assume direct support of Z.P.
while he was married to another woman. 	Thus, Kelly assumed the
role of Z.P.’s father.
¶4 	Approximately nine months after Z.P.’s birth, Kimberlee
and Kelly separated but continued to share equal custody and
responsibility for Z.P. and their older son, N.P. 	After the
Pearsons’ separation and the death of Thanos’s wife, Thanos began
to see Z.P. and Kimberlee more frequently. 	When Z.P. was fifteen
months old, Kelly filed for divorce. 	After the divorce became
final, Thanos and Kimberlee married, and Kimberlee gave birth to
another child fathered by Thanos.
¶5 	One month after the Pearsons’ divorce proceedings were
initiated, Thanos filed a motion to intervene to establish his
paternity of Z.P. 	Thanos’s motion was initially heard by the
district court commissioner, who recommended that it be denied.
The commissioner found that given Thanos’s limited contact with
Z.P. during his first two years of life, Thanos’s intervention
would disrupt the father-son relationship between Kelly and Z.P.
The district judge signed an order to that effect in October
2001, “subject to the objections which are pending.”
¶6 	The district court considered Thanos’s objections to
the commissioner’s recommendation and concluded that the two-part
Schoolcraft test governed whether Thanos should be granted
standing to intervene. 	Under this test, courts assess the impact
of a challenge to paternity in light of two policy
considerations: (1) preserving the stability of the marriage and
(2) protecting children from disruptive and unnecessary attacks
on their paternity. 2 	The district court concluded that granting
intervention in this case would not violate the first part of the
Schoolcraft test because there was “no marriage to preserve.”

3 Pearson v. Pearson, 2006 UT App 128, ¶ 32, 134 P.3d 173.
4 Id. ¶ 33.
5 Id. ¶ 40.
6 Id.
7 Beddoes v. Giffin, 2007 UT 35, ¶ 4, 158 P.3d 1102.
3 	No. 20060563
¶7 	In order to evaluate the impact of the challenge under
the second part of the test, the district court appointed Dr.
Jill Sanders to conduct an independent Schoolcraft evaluation and
give expert testimony on whether allowing Thanos to intervene
would constitute a disruptive and unnecessary attack on Kelly’s
paternity of Z.P. 	Dr. Sanders concluded that the primary
disruption in Z.P.’s life had already taken place when his
parents separated and that Thanos’s presence in Z.P.’s life was
not disruptive but was in fact a necessary relationship that
needed to continue. 	Based substantially on Dr. Sanders’s
conclusions, the district court granted the motion to intervene.
Subsequently, the district court recognized Thanos as Z.P.’s
father and awarded joint legal custody of Z.P. to Thanos and
Kimberlee, allowing Kelly third-party visitation rights.
¶8 	Kelly appealed to the Utah Court of Appeals, which
concluded that “Thanos’s attack on Z.P.’s paternity [was] both
disruptive and unnecessary” because Z.P. had formed paternal
bonds with Kelly. 3 	In reaching this conclusion, the court of
appeals applied the Schoolcraft test and determined that “Thanos
lack[ed] standing to challenge Z.P.’s paternity and that the
district court erred by allowing him to intervene in the
Pearsons’ divorce action.” 4 	Because the court of appeals found
that Thanos lacked standing to challenge Kelly’s presumption of
paternity, it held that Kelly remained Z.P.’s legal father. 5 	The
court reversed the custody order “to the extent that it conflicts
with [Kelly’s] legal status as Z.P.’s parent or it was premised
on Thanos’s paternity.” 6 	We granted certiorari and have
jurisdiction pursuant to Utah Code section 78A-3-102(3)(a)
(2008).
STANDARD OF REVIEW
¶9 	On certiorari, we review the decision of the court of
appeals for correctness, granting the court of appeals no
deference. 7

8 Chief Justice Durham argues that we should not apply the
common law analysis from Schoolcraft, but rather we should
determine whether Thanos has standing by reference to the Uniform
Parentage Act and its predecessor, the Uniform Act on Paternity.
Infra ¶ 35. 	Because she concludes that the two acts are the same
for the purpose of this question, she relies on the Uniform
Parentage Act now in effect. 	Chief Justice Durham’s dissent is
problematic in that we were not asked and we did not consent to
undertake certiorari review of the application of the Uniform
Parentage Act to this case. 	Further, the parties neither argued
nor briefed the issue. 	While we decline, for these reasons, to
discuss the merits of the argument presented by Chief Justice
Durham, we note that the 1965 Uniform Act on Paternity was
effective at the time we issued our 1990 Schoolcraft case and
that Act was, as the Chief Justice notes in her dissent, not
substantively changed by the Uniform Parentage Act as to this
issue. 	Infra ¶ 35; Utah Code Ann. §§ 78B-15-101 to -902 (2008);
1965 Utah Laws 582-84.
9 In re J.W.F., 799 P.2d 710, 713 (Utah 1990).
No. 20060563 	4
ANALYSIS
¶10 	We now affirm the court of appeals as to all issues.
First, we hold that the court of appeals correctly applied the
Schoolcraft test and properly denied Thanos’s intervention. 8
Second, we hold that the court of appeals’ reliance on the
commissioner’s recommendation was not outcome determinative and
therefore not a basis for reversal. 	Third, we hold that the
court of appeals properly denied the petition for rehearing, as
its decision clearly precludes the district court from
considering Thanos’s biological paternity in determining custody.
We will discuss each issue in turn.
I. 	THE COURT OF APPEALS CORRECTLY APPLIED THE SCHOOLCRAFT TEST
¶11 	In Schoolcraft, we identified two policies that govern
whether an individual has standing to challenge a presumption of
paternity: (1) “preserving the stability of the marriage” and (2)
“protecting children from disruptive and unnecessary attacks upon
their paternity.” 9 	The policy of preserving the marriage extends
not only to the preservation of spousal unity, but also to the
preservation of parent-child relationships created by the
marriage. 	Further, when a marital father has assumed parental
responsibility for a child born into his marriage, and the father
has established a father-child relationship, any challenge to the
father’s paternity is disruptive and unnecessary. 	Accordingly,
we hold that granting Thanos standing to challenge Kelly’s
presumption of paternity would undermine the policies that the
Schoolcraft test protects.

10 Id.
11 715 P.2d 106 (Utah 1986).
12 Id. at 106.
13 Id.
14 518 P.2d 687 (Utah 1974).
15 Id. at 688.
16 See In re J.W.F., 799 P.2d at 712; Teece, 715 P.2d at
106; Lopes, 518 P.2d at 688.
5 	No. 20060563
A. 	The Policy of Preserving Marital Stability Extends to Parent-
Child Relationships Created by the Marriage
¶12 	In three previous cases, we have allowed challenges to
a marital father’s presumption of paternity but in circumstances
much different than the case at hand. 	In Schoolcraft, we allowed
a challenge to the presumption of paternity when the marital
father had been separated from the mother for seven months to a
year before she gave birth to a son, whom she soon abandoned.
The marital father in Schoolcraft had no knowledge of the child’s
existence until nine months after his birth and had never
developed a relationship with the child. 	When the marital father
sought to assert his paternity at the abandonment proceedings, we
allowed the guardian ad litem to challenge his presumption of
paternity in part because the child had “never had a relationship
with [the marital father].” 10
¶13 	In two other cases decided before Schoolcraft, we also
allowed challenges to the presumption of paternity. 	In Teece v.
Teece,11 we allowed such a challenge because the marital father
was in Canada at the time of conception, while his wife remained
in the United States. 12 	Further, the marital father refused to
accept responsibility for his wife’s child, and his wife filed
for divorce soon after the child’s birth. 13
¶14 	In Lopes v. Lopes, 14 we allowed a challenge to the
marital father’s presumption of paternity. 	In that case, the
marital father filed for divorce while his wife was pregnant with
the biological child of another man. 15
¶15 	In Schoolcraft, Teece, and Lopes, the marital father
and mother were separated or had filed for divorce prior to or
shortly after the birth of the child. 16 	Moreover, in each case,
there was no relationship between the child and the marital
father. 	Therefore, we allowed challenges to the presumption of
paternity.

17 Pearson v. Pearson, 2006 UT App 128, ¶ 15, 134 P.3d 173.
18 Id. ¶ 20.
19 Holder v. Holder, 340 P.2d 761, 763 (Utah 1959).
No. 20060563 	6
¶16 	The facts in this case are much different. 	Here, prior
to the birth of Z.P., Kimberlee agreed that Kelly would be Z.P.’s
father. 	After the birth, Kimberlee and Kelly remained married
and took steps towards solidifying their relationship. 	During
this period, Kelly accepted an equal share of the custody of and
responsibility for Z.P. 	Kelly and Z.P. developed a strong
father-son relationship that has continued following the
dissolution of the Pearsons’ marriage. The facts that Kimberlee
and Kelly were married at the time of Z.P.’s birth and that Kelly
assumed a paternal role following the birth distinguishes this
case from any other that we have previously examined.
¶17 	We agree with the court of appeals that preserving the
marriage does not “[lose] all relevance upon divorce.” 17 	“[T]he
Pearsons’ efforts to maintain their marriage after Z.P.’s birth
remain relevant to the Schoolcraft analysis, even post-
divorce.” 18 	Indeed, the policy of encouraging the marital father
to stay married to the child’s mother and to assume parental
responsibility for the child is not rendered irrelevant by the
fact that this particular marriage ended in divorce. 	The parent-
child relationships created by marriage last beyond the
dissolution of the individual marriage. 	Recognition and
protection of these relationships encourages the acceptance of
parental responsibility and the formation of relationships
between marital fathers and children who are born into their
marriage. 	We have previously emphasized the importance of
preserving family harmony between spouses as a policy
consideration for favoring legitimacy. 19 	Favoring legitimacy
also promotes family harmony between parents and children by
protecting and preserving these crucial relationships.
Therefore, we interpret the first part of the Schoolcraft test
broadly to encourage the development of these parent-child
relationships and to protect them once they have developed.
¶18 	Furthermore, a marital father should not be exposed to
attacks on his paternity after voluntarily assuming parental
responsibilities for a child conceived outside of the marriage.
When a marital father is committed to raising a child born into
the marriage and actively assumes the role of father following
the child’s birth, any challenge to paternity runs afoul of the
first part of the Schoolcraft test because it undermines the
preservation of marital stability.

20 In re J.W.F., 799 P.2d at 713.
7 	No. 20060563
¶19 	After Kelly committed to raise Z.P. as his son, he
fulfilled that commitment by acting as a father to Z.P. during
the first years of his life. 	Moreover, the Pearsons continued to
raise Z.P. together after their separation, maintaining the same
parent-child relationships that existed during their marriage.
Because the Pearsons’ marriage was intact when Z.P. was born and
Kelly, as a marital father, voluntarily assumed parental
responsibility for Z.P., the presumption of paternity cannot be
challenged in this case.
B. 	When a Marital Father Has Voluntarily Assumed Parental
Responsibilities and Has Established a Father-Child Relationship,
Any Challenge to His Presumption of Paternity Is Disruptive and
Unnecessary
¶20 	In Schoolcraft, we held that granting the guardian ad
litem standing to challenge the presumption of paternity was not
disruptive to any father-child relationship because the child in
that case had no relationship with either his mother’s husband or
his biological father, and thus the child had “no expectations as
to who his father [was].” 20
¶21 	In Teece and Lopes, the children who were the subject
of the paternity challenge did not have relationships with the
fathers into whose marriages they were born. 	In Teece, the
marital father refused to accept responsibility for his wife’s
child and consequently did not develop a parental relationship
with the child. 	In Lopes, the child was not born at the time the
marital father initiated divorce proceedings and the presumption
of paternity was challenged, so no father-child relationship had
developed.
¶22 	In this case, Z.P. has established a relationship with
Kelly and recognizes him as his father. 	Kelly is listed as
Z.P.’s father on his birth certificate. 	Kimberlee treated Kelly
as Z.P.’s father for at least the first sixteen months of Z.P.’s
life, even after the couple had separated. 	Kelly developed a
strong father-son relationship with Z.P. during the marriage that
has continued beyond the Pearsons’ divorce.
¶23 	On the other hand, Thanos had very little contact with
Z.P. during the first years of his life and did not develop a
relationship with Z.P. until Kimberlee and Kelly had separated.
Z.P. views Thanos as an “additional caregiver,” while he
considers Kelly to be his father.
¶24 	In assessing the disruptiveness of a challenge to
Z.P.’s paternity, the district court relied heavily on the
findings of the custody evaluator, Dr. Sanders. 	Dr. Sanders’s

21 Pearson, 2006 UT App 128, ¶ 28.
22 Id. ¶ 24 n.6.
No. 20060563 	8
report stressed the importance of Z.P.’s relationship with both
Thanos and Kelly but never specifically concluded whether it
would be disruptive for Thanos to displace Kelly as Z.P.’s
recognized legal father. 	The district court erred when it used
Dr. Sanders’s finding that Thanos’s presence in Z.P.’s life was
not disruptive to support its conclusion that Thanos’s challenge
to Kelly’s paternity would not be disruptive. 	Thus, the district
court misapplied the Schoolcraft test to Dr. Sanders’s findings.
¶25 	While parties interested in the well-being of a child
may be entitled in certain cases to some third-party access, a
child can have only one legal father. 	As the court of appeals
recognized, “The entire motivation for Thanos’s attempt to
intervene was to establish that he, rather than [Kelly], was to
fulfill the paternal role in Z.P.’s life.” 21 	We agree with the
court of appeals that Dr. Sanders’s report was not “responsive”
to the question of whether a challenge to Z.P.’s paternity would
be disruptive and unnecessary. 22 	Although Thanos’s relationship
with Z.P. is beneficial, a challenge to Kelly’s paternity of Z.P.
is disruptive in light of Z.P.’s established expectation as to
the identity of his father.
¶26 	Because Kelly voluntarily assumed parental
responsibility for Z.P. during the course of Kimberlee and
Kelly’s marriage and established a father-son relationship with
Z.P., any challenge to Kelly’s paternity is disruptive and
unnecessary.
II. 	THE COURT OF APPEALS’ RELIANCE ON THE COMMISSIONER’S
RECOMMENDATION WAS INCONSEQUENTIAL BECAUSE IT WAS NOT OUTCOME
DETERMINATIVE
¶27 	The court of appeals’ decision referred to the
commissioner’s vacated recommendation several times. 	The
petitioners argue that those references to the recommendation
resulted in confusion when the matter was adjudicated in the
court of appeals and that the references were critical to the
court of appeals’ conclusions. 	But none of the court of appeals’
references to the commissioner’s October 2001 order were outcome
determinative, and therefore the references are not a basis for
reversal.
¶28 	The court of appeals’ decision mentioned the
commissioner’s factual finding that “Mr. Thanos was completely
absent from Z.P.’s first year of life, was absent for the first
half of his second year of life, and has had incidental contact

23 Id. ¶ 25 (internal quotation marks omitted).
24 Id. ¶ 26 (internal quotation marks omitted).
25 Id. (internal quotation marks omitted).
9 	No. 20060563
during the second half of the second year of Z.P.’s life.” 23 	It
also referred to the commissioner’s finding “that [Kelly] was the
psychological father of Z.P., that Z.P. had become closely bonded
with [Kelly], and that those bonds were critical.” 24 	Although
the district court did not specifically cite these facts when it
granted Thanos’s motion to intervene, the facts were undisputed
by the parties and were mentioned in Dr. Sanders’s report, which
the district court relied on in its findings of fact. 	The
district court found that Thanos “had ongoing contact with the
child commencing February 2001,” implying that contact was
limited prior to that date. 	The district court also found that
Kelly “has functioned as Z.P.’s father since his birth,” and that
maintaining Z.P.’s relationship with Kelly was necessary to
“protect Z.P. from additional disruption.” 	Although the court of
appeals quoted the commissioner’s recommendation rather than the
findings of fact from the district court, the commissioner’s
findings do not vary significantly from the actual findings of
the district court. 	Because the court of appeals relied on the
factual findings of the district court, these references to the
commissioner’s recommendation by the court of appeals are not
significant.
¶29 	The court of appeals’ decision also cites the
commissioner’s conclusion that allowing Thanos “to establish his
paternity of Z.P. and to be introduced at this point as a father
figure in Z.P.’s life would be immediately disruptive.” 25 	We
have held that as a matter of law, when a marital father has
voluntarily assumed parental responsibilities and has established
a father-child relationship, any challenge to the presumption of
paternity is disruptive and unnecessary. 	Therefore, the court of
appeals applied the correct test to the underlying factual
findings and arrived at the proper legal conclusion.
¶30 	Accordingly, the court of appeals’ reliance on the
commissioner’s recommendation was inconsequential because it did
not rely on the conclusions reached by the commissioner, but
rather applied the Schoolcraft test to the factual findings of
the district court and independently arrived at the same legal
conclusion that the commissioner recommended.
III. 	THE COURT OF APPEALS CORRECTLY DENIED THANOS’S PETITION FOR
REHEARING
¶31 	The petitioners argue that the court of appeals’
opinion was ambiguous in holding that “aspects” of the final

26 Id. ¶ 38.
27 Hutchinson v. Hutchinson, 649 P.2d 38, 41 (Utah 1982).
28 See In re Cooper, 410 P.2d 475, 475 (Utah 1966).
29 Wilson v. Family Servs. Div., 554 P.2d 227, 231 (Utah
1976).
No. 20060563 	10
custody order that “rely, explicitly or implicitly, on Thanos’s
paternity of Z.P.” must be “revisited as appropriate.” 26 	This
statement clearly precludes any consideration of biology in
fashioning a custody award in this case. 	Kelly is the legal
father of Z.P. 	Therefore, consideration of Thanos’s biological
paternity of Z.P. is irrelevant to awarding custody. 	While we
have used kinship to determine custody rights in cases involving
nonparents and included it in a list of factors to consider when
determining the best interests of the child, 27 we have only
applied it to weigh competing claims of nonparents or when the
presumption of paternity has been rebutted. 28 	In considering the
importance of kinship, we have held that “the parents of a child
are the only ones with a direct and vested right to [the child’s]
custody,” but that other kin “have some inchoate right or
interest in the custody and welfare of children who become
parentless.” 29 	In this case, Thanos lacks standing to challenge
Kelly’s presumption of paternity. 	Therefore, Kelly is entitled
to all of the rights as Z.P.’s legal father, and Thanos’s
biological paternity of Z.P. would only be taken into
consideration if Z.P. becomes parentless.
CONCLUSION
¶32 	We hold that the court of appeals correctly applied the
Schoolcraft test to Thanos’s challenge to Kelly’s presumption of
paternity. 	Such a challenge to the presumption of paternity of a
marital father undermines the policy of preserving the stability
of marriage when it interferes with parent-child relationships
established during the marriage. 	We also hold that such a
challenge is disruptive and unnecessary where a committed and
caring marital father has established a relationship with a child
born into his marriage. 	Finally, we hold that the court of
appeals’ reliance on the commissioner’s recommendation is not a
basis for reversal and that the court of appeals properly denied
the petition for rehearing. 	We therefore affirm the court of
appeals’ decision in every respect.
---
¶33 	Justice Parrish and Judge McVey concur in Justice
Durrant’s opinion.

11 	No. 20060563
¶34 	Having disqualified himself, Associate Chief Justice
Wilkins does not participate herein; District Judge Samuel D.
McVey sat.
---
NEHRING, Justice, concurring:
¶35 	I concur in the opinion of Justice Durrant. 	I write
separately to make clear that we do not today decide that the
Uniform Parentage Act, Utah Code Ann. § 78B-15-101 to -902
(2008), is irrelevant to this case. 	The parties elected to
adjudicate Mr. Thanos’s claim to standing under the common law,
and I am content with a ruling that confines itself to an
application of the common law standards announced in Schoolcraft.
In re J.W.F. (Schoolcraft), 799 P.2d 710 (Utah 1990). 	Like the
Chief Justice, I believe that the Act and Schoolcraft occupy much
of the same legal terrain. 	I believe it unwise, however, to
examine in this case whether they can occupy their common space
in harmony. 	The Chief Justice says that they cannot, that their
respective policy aims and rationales conflict, and that we
should defer to the legislative pronouncements on parentage as
expressed in the Act. 	She may be right on both counts. 	It is
with some regret, then, that I conclude that we should not, as
the court of last resort, be the first forum to consider whether
the Act and not Schoolcraft controls the fate of Mr. Thanos’s
quest for standing.
¶36 	We have, in my judgment, raised dramatically the bar
that a person in Mr. Thanos’s position must surmount to gain
standing by expanding the range of activities that potentially
subvert the Schoolcraft policy of “preserving the stability of
the marriage.” 	Id. at 713. 	Were the Act not part of Utah law, I
would not be troubled by our heightened sensitivity to the
importance of this goal. 	With the Act in place, however, we are
in this case endorsing a significant development in the common
law that may endure only long enough for litigants to properly
stage a showdown between the common law and statutory approaches
to determining standing in parentage cases.
¶37 	While I express no opinion concerning whether the
preclusive effect of this ruling would prohibit Mr. Thanos from
being one of those litigants, I note that Z.P. might have
standing as a litigant. 	This is because the Act both grants
standing to a child in parentage adjudications and binds him or
her by a determination of parentage made in a divorce action only
if the issue of paternity is adjudicated under the provisions of
the Act. 	Utah Code Ann. § 78B-15-623. 	Thus, for better or for
worse, we may not have seen the last of this matter.
---

No. 20060563 	12
DURHAM, Chief Justice, dissenting:
¶38 	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 Schoolcraft 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 Schoolcraft, I undertake the following
analysis based on the legislative scheme governing paternity in
the state of Utah.
¶39 	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.
¶40 	The Act defines a “[p]resumed 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 “[a]
presumption of paternity established under this section may only
be rebutted in accordance with section 78B-15-607.” 	Id. § 78B-
15-204(2).
¶41 	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

13 	No. 20060563	13
question of standing, and says in part that “a proceeding to
adjudicate parentage may be maintained by . . . (3) a man whose
paternity of the child is to be adjudicated . . . .” 	Id. § 78B-
15-602. 	Section 78B-15-607(3) provides that “[t]he presumption
may be rebutted by: 	(a) genetic test results that exclude the
presumed father.” 	Id. § 78B-15-601(3).
¶42 	Neither the original presumption nor the rebuttal
thereof by genetic testing is the end 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;

No. 20060563 	14	14
(f) 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.
Id.
¶43 	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) .
¶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

1 I note that the Act’s approach to this problem obviates
constitutional difficulties that may arise when biological
fathers are denied an opportunity to be heard on paternity
questions.
2 These equitable powers may apply both to the adjudication
of parentage question and to other issues like visitation, in my
view.
15 	No. 20060563	15
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
¶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.
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