Call me today for a 15 minute consultation
David R. Hartwig, Esq.
Family Law & Divorce
Attorney & Counselor at Law
Veteran Military Discount

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

On Behalf of | Aug 31, 2016 | Paternity

The Utah Court of Appeals has again addressed this issue, in a new case, Kielkowski v. Kielkowski, or


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

I am David R. Hartwig, Esq., a Salt Lake City attorney with extensive experience helping parents resolve simple or high-conflict custody issues reaching arrangements that work for children and parents. Child custody involves parent-time and visitation schedules, and can affect support. I help in all of these areas, providing comprehensive service clients need to achieve their custody goals.

Factors In Child Custody Decisions

As an experienced Utah child custody lawyer, I understand that custody cases may become a contentious issue even years after an order is finalized. The trend in Utah toward joint custody often creates messy, unworkable situations, which ultimately lead to enforcement issues when parents do not abide by their custody orders.

The best interests of the child must be considered, including:

• Whether joint legal or physical custody will benefit the child’s physical, psychological and emotional needs, or the child’s development

• The parents’ ability to give first priority to the child’s welfare, and reach shared decisions in the child’s best interest

• Whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent

• Whether both parents participated in raising the child before the divorce

• The distance between the parents’ homes

• The parents’ maturity and their willingness and ability to protect the child from conflict that may arise between the parents

• The parents’ ability to cooperate with each other and make decisions jointly

• Any history of, or potential for, child abuse, spouse abuse, or kidnapping

• Any other factors the court finds relevant

Despite the complicated and sensitive nature of custody matters, I have helped many clients successfully establish custody orders.

Get Help With Your Child Custody Issue

If you have a child custody issue, please contact me, David R. Hartwig, Esq. I am an experienced Salt Lake City custody lawyer dedicated to helping clients resolve complex custody issues and implement necessary custody orders. For high-conflict cases, I am also one of the few Utah child custody modification attorneys trained as a Special Master for ongoing dispute resolution.

FindLaw Network

Practice Areas