David R. Hartwig, ESQ.
Attorney & Counselor At Law
Call Today! 801-833-0822

Paternity actions when a child is born to a mother who is married to someone else.

The Utah Court of Appeals has again addressed this issue, in a new case, Kielkowski v. Kielkowski http://scholar.google.com/scholar_case?case=14449128863980745795&hl=en&as_sdt=6&as_vis=1&oi=scholarr, or http://law.justia.com/cases/utah/court-of-appeals-published/2015/20130225-ca.html)


In this case Husband and Wife, being married, filed for divorce. Before filing for divorce, they separated. During the separation, Wife became pregnant. Husband was aware that the child was not his.


Husband and Wife obtained a default divorce, without using attorneys and relying on the Online Court Assistance Program. Husband, through the online source, indicated that no children had been born of the marriage. Wife accepted service of the divorce petition, but did not respond and the divorce was granted by default. The final divorce decree stated that no children were born of the marriage.


About six months later, Wife allowed Husband to visit some with the child, and Husband made some "child support" payments to wife. 


Wife remarried, and initiated adoption procedures for her new husband. As such, she denied Husband access to child.


That was about a year after the divorce, and Husband filed a petition to modify the decree asking the court to determine his rights and obligations for Child. Wife opposed it, claiming Husband's original petition (his claim under oath that no children had been born of the marriage) rebutted Husband's presumed paternity. At the trial court level, Wife won with her argument, and the trial court ruled that Husband's petition rebutted the presumption that he was the legal father, and denied Husband's petition to modify the decree.


Overall, the Court of Appeals disagreed, and remanded the case to the trial court with orders that the trial court should address the issue of parentage and to make any appropriate modification.


In doing so, the Court of Appeals once again addressed the issue of "adjudication of parentage", and essentially reiterated its prior rulings that "adjudication" for purposes of the Utah Uniform Parentage Act, occurs only when there is "an objective, impartial determination of the best interests of the child." 


This is an extremely important point, as in the case I was handling on this point (hearings in early 2015), the trial court was still maintaining that the mere entry of a default judgment equaled an "adjudication", over my arguments to the contrary.


As there was no "objective, impartial determination", and parentage had not been previously raised, the trial court did not "adjudicate" Husband's paternity, or address other issues related to Child.


Having so decided, the Court of Appeals reviewed the modification process, including the interrelated concept of res judicata. Noting that res judicata is always subservient to a child's best interests, it decided to allow Husband to proceed with his petition to modify the decree of divorce, and have the entire issue of paternity litigated at the trial court level. Paternity in general and Paternity in divorce

No Comments

Leave a comment
Comment Information


David R. Hartwig, Esq.
1817 S. Main Street
Ste 17
Salt Lake City, UT 84115

Phone: 801-833-0822
Phone: 801-486-1715
Salt Lake City Law Office Map