Monday, April 16, 2012

Unwed Father’s Defective Paternity Action Cannot be Amended After Mother’s Relinquishment

DonJuan v. McDermott, 2011 UT 72, Utah Supreme Court November 22, 2011

DonJuan an unwed father of filed a paternity action in Utah prior to the birth of his child.  Father failed to include a sworn statement in compliance with Utah Code 78B-6-121(3) as required by 78B-6-120.   78B-6-120 also requires strict compliance with the requirements.  When DonJuan was made aware of the defect, he filed an amended petition.  The trial court dismissed the action.  DonJuan appealed.  The Court of Appeals certified the matter to the Supreme Court. 

The Supreme Court found that in spite of DonJuan’s near completion of all the statutory requirements (filed paternity action, filed with vital statistics, even filed in Georgia where the parties were living prior to the child’s birth), DonJuan failed to strictly comply, his pleadings did not include a sworn statement attesting to his ability and willingness and plans to have custody and provide for the minor child.  Because he failed to include such statements, his affidavit did not strictly comply and was properly dismissed.  PKPA and constitutional claims were not preserved in the trial court.

Full opinion available at:

1 comment:

Scott Wiser said...

An interesting case to reconcile with Thurnwald, which held, notwithstanding the plain language of the adoption statutes to the contrary, that URCP 6 trumped the filing deadlines in 78B-6-121. Perhaps if the due process argument had been preserved the Court would have entertained applying URCP 15 to adoption cases so long as they were brought within a reasonable period of time and the father otherwise complied with the rest of 78B-6-121 in time? I think Judge Thorne and Davis' criticism of the "affidavit requirement" in the Baby Girl and Doe cases is quite well-taken.


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