The Sworn Affidavit Requirement

I have previously posted on certain steps an unmarried biological father must take in order to preserve his parental rights with respect to his child. I have posted on this subject in general terms on May 9th, 2014 and in more specific terms on October 1st, 2014.

To recap those posts, in general terms an unmarried biological father must act early and often in attempting to secure a relationship with his child. He must demonstrate a forward looking commitment to providing for and raising the child. This process must begin even before the child is born.

So, for example, an unmarried father must offer to pay for the costs and expenses of childbirth, as his means will allow. He must file a parentage case in the appropriate district court. He must file a notice of commencement of the parentage case with the putative father registry at the Utah Department of Health.

In addition, he must file a sworn affidavit in the parentage case stating that he is willing and able to assume full custody of the child, setting forth in detail his plans to care for the child, and agreeing to a court order of child support and the payment of expenses associated with the pregnancy and the child’s birth. Utah Code Section 78B-6-121(3).

It is this sworn affidavit requirement that is the subject of this post.

It is perhaps well known that Utah law favors adoption and imposes some fairly stringent requirements for an unmarried biological father to preserve his provisional parental rights. Some people have complained that the sworn affidavit requirement is unnecessary and unfair since it does not apply to the mother as well.

The requirements that the father file a parentage case and then file notice of that case with the State Department of Health are apparently not as controversial as the affidavit requirement, even though they do not apply to the mother as well. This is because those steps seem to be a reasonable means of identifying the biological father, whereas the biological mother’s identity is quite obvious. Therefore those requirements do not seem to be discriminatory, but can be justified on the grounds of the need to identify the child’s father.

But the affidavit requirement on its face appears to discriminate on the basis of sex. There is no corresponding requirement for a mother to file a sworn affidavit stating she is willing to assume full custody of the child and setting forth in detail her plans to care for the child. She may choose whether to keep the child or give the child up for adoption, subject to the biological father’s rights if he preserves them. So the law appears facially discriminatory.

In the recent case of In re Adoption of J.S., 2014 UT 51, the Utah Supreme Court ruled that the requirement on the part of the biological father to file a sworn affidavit in order to preserve his parental rights is constitutional.

The biological father in that case, apparently on the misadvice of his attorney, had failed to file the sworn affidavit. The Court noted that although this bad legal advice was regrettable, for better or worse, under our legal system it is no excuse for not following the law. The unmarried father had filed a parentage case and a notice of commencement as required by statute. In fact, he seems to have met all the other requirements to secure his rights to a relationship with the child. The only thing me missed was filing the sworn affidavit. When he attempted to block the adoption of the child, the lower court ruled that he had forfeited his right to consent to the adoption due to his failure to file the sworn affidavit.

The biological father then filed an appeal, contesting the constitutionality of the affidavit requirement based on due process and equal protection grounds under both the Utah and United States’ constitutions.

The Utah Supreme Court, in a three-to-two opinion, held that the affidavit requirement is constitutional. At issue were the constitutional principles of equal protection of the law and due process of law.

The Court held that the appellant father had not properly raised or briefed the procedural due process issue. With respect to substantive due process, which comes into play when fundamental constitutional rights are at stake, the Court went into a lengthy explanation of the history of the subject of substantive due process since the time of the Lochner era, so called after the famous case of Lochner v. New York, 198 U.S. 45 (1905).

The heyday of substantive due process took place during the early twentieth century, when the U.S. Supreme Court would regularly strike down economic regulatory laws duly passed by Congress based on its belief that they violated fundamental economic rights, such as the freedom to contract. This was the so-called Progressive Era, in which Congress began to widely enact social legislation such as child labor laws, minimum wage laws, and other economic regulatory laws.

This era of substantive due process reached a climax of sorts during the Great Depression when the Supreme Court would often block FDR’s legislative programs aimed at lifting the country out of the depression (whether or not these legislative programs successfully attained their objective is an academic debate for a different forum and another day). FDR threatened to pack the court with justices favorable to his legislative proposals, which led to a constitutional showdown. Since the time of Progressive Era, as pointed out by the Utah Supreme Court in its opinion, the Lochner line of cases has been widely discredited.

Along these lines, Utah’s Supreme Court held that it was reluctant to create a new fundamental right because of the history of substantive due process and out of an abundance of judicial caution. The Court stated that fundamental rights need to be deeply rooted in the tradition and history of our country. It held that, in accordance with legal precedent, the unmarried father’s right to a relationship with his child is an inchoate right, or a provisional right that needs to be perfected by following the statutory procedures set forth by the Utah State Legislature.

Although the father had asserted his fundamental right to have a relationship with his child (a right that has existed from time beyond remembering and that no one doubts), the Utah Supreme Court opined that this was too general and abstract a formulation. The Court held that what the father was really asserting was his right to have a relationship with the child without complying with the sworn affidavit requirement as set forth by the Utah Legislature. When formulated this way, the Court easily found that no such right exists in the history and tradition of our country.

The Court held that the father should not be heard to complain of being deprived of procedural due process when it was his own failure to file the sworn affidavit that resulted in his lost opportunity to consent to the adoption of his child.

The Court held that the sworn affidavit requirement indeed discriminates on the basis of sex and, therefore, must be subjected to a higher degree of judicial scrutiny than a non-discriminatory law. Pursuant to precedent from the United States Supreme Court, the Court held that the law must be subjected to an intermediate level of judicial scrutiny.

In constitutional law lingo, intermediate scrutiny means that the reviewing Court must determine if the law is substantially related to an important government objective. Other levels of scrutiny are rational basis scrutiny and strict scrutiny. A generally applicable law that does not discriminate on the basis of race or sex or that does not impinge upon a fundamental right, is subject to rational basis scrutiny, meaning that it will be upheld if it is rationally related to a legitimate government objective. This is the lowest level of scrutiny. Laws that discriminate on the basis of race, or that infringe on fundament rights, are subject to strict scrutiny, meaning that they must be narrowly tailored to further a compelling government objective. This is the highest level of judicial scrutiny. Laws that discriminate based on sex are subject to intermediate scrutiny.

The first part of this intermediate scrutiny inquiry is to determine if there is an important governmental objective. The Court found that the government’s stated objective of protecting children by facilitating the adoption process is indeed an important objective. It found, moreover, that the affidavit requirement substantially advances that objective and is, therefore, constitutional.

The Court opined that the sworn affidavit requirement is the unmarried father’s rough equivalent of the mother’s decision to carry the child to term, rather than choosing an abortion, for example. Both actions are an objective manifestation of the respective parents’ commitment to the ongoing welfare of the child.

The Court seems to have set aside prior state court precedent that subjected similar laws to a higher level of scrutiny. In Wells v. Children’s Aid Soc’y of Utah, 681 P.2d 199 (Utah 1984), for example, the Court held that the state’s requirement for an unwed father to file an acknowledgment of paternity as a prerequisite to preserve his provisional rights as a parent was subject to strict judicial scrutiny, meaning that it could be upheld only if the proponent of the law showed that there was a compelling state interest to be achieved and that the means adopted by the law were narrowly tailored to meet that objective. The Wells court held that the law at issue infringed on a fundamental right, but still upheld the law on the basis that it met this very strict standard of heightened scrutiny.

The reasoning of Thurnwald v. A.E., 2007 UT 38 seems to be overruled at this point as well. That Court in that case reiterated the tandard of strict scrutiny in identifying a potential constitutional problem with the Adoption Act’s requirement for the unmarried father to file a paternity petition within twenty-four hours of the birth of a child. The Court in that case noted that it would be “impossible for unwed fathers of children born on weekends or holidays to preserve their rights postbirth.” But the Court in Thurnwald went on to interpret Utah Rule of Civil Procedure 6 (providing a “minimum period of twenty-four hours after the child’s birth to file a paternity claim”) in a manner that avoided the potential constitutional problem.  (The Court did so presumably by interpreting the rule to allow filing the next business day if the deadline occurred on a weekend). Thus, the Thurnwald Court applied the doctrine of constitutional avoidance to uphold the law (meaning, avoiding ruling on a constitutional issue if the matter can be resolved in its entirety by some other means, such as statutory interpretation).

The majority in In Re Adoption of J.S. seem to opine that because the unsworn affidavit requirement in Utah’s Adoption Act is not simple and straightforward, that it is a reasonable means of ensuring an unmarried father’s forward looking commitment to his child and is therefore defensible.

I should emphasize that the majority did not express an opinion as to the wisdom of the law, but merely ruled on the constitutionality of the law, which it upheld.

So, to summarize, gender discriminatory laws under Utah’s Adoption Act will be subjected to an intermediate level of judicial scrutiny, as long as the Court finds that they do not infringe on a fundamental right. In other words, if the law is substantially related to an important government objective, it will be upheld.

In this respect would be difficult to argue that facilitating the adoption process is not an important government objective, as the “child’s best interest” is a universally respected standard. But whether or not the law is substantially related to this important objective is a question on which reasonable minds can differ.

The dissenting opinions in this case are noteworthy, in my opinion. Justice Nehring wrote a lengthy dissent and Justice Parrish wrote a more concise dissent.

Justice Nerhring states that he would find the sworn affidavit requirement unconstitutional under both a due process analysis as well as an equal protection analysis. He found the majority’s formulation of the constitutional right asserted by the unwed father to be unduly narrow. The majority stated that the right at issue was the unmarried father’s provisional right to assert his relationship with his child without filing a sworn affidavit. Justice Nehring, on the other hand, found that the right as formulated by the father himself was more persuasive; namely, his right to form a relationship with his child (presumably without undue or unreasonable obstacles imposed by the State).

Because a time-honored fundamental right was at stake (that of an unmarried father’s provisional right to form a relationship with his child), Justice Nehring opined that the Court should apply strict scrutiny to the statute at hand. Under such an analysis, he would find that the state law is not narrowly tailored to achieve a compelling government objective.

Moreover, Justice Nehring opined that he would strike down the law on both procedural due process and substantive due process grounds. At the heart of procedural due process is the principle of notice and an appropriate opportunity to be heard before one can be deprived of life, liberty, or property. Because the father’s provisional right to a relationship with his child is so important, Justice Nehring found that his opportunity to be heard was not sufficient. The father was denied a hearing simply because he failed to file a sworn affidavit.

Justice Nehring was also unpersuaded that the law could pass muster on equal protection grounds. He noted that, to its credit, the majority had recognized that the sworn affidavit requirement for an unmarried biological father is discriminatory because it does not apply to the mother as well. But he took issue with the majority’s attempt to roughly equate the sworn affidavit requirement with the mother’s decision to carry the child to term. He opined that the mother’s decision to carry the child to term does not automatically show her forward looking commitment to having custody of and providing for the child, since the mother may be planning to give the child up for adoption.

Justice Nehring also opined that he would find the law does not pass intermediate scrutiny because it is not substantially related to an important government objective. He expressed concern that the law is redundant because by filing a parentage case seeking custody of the child along with a notice of commencement, the father is already objectively demonstrating his commitment to assuming the duties and responsibilities of full-time parenthood.

Justice Nehring expressed his skepticism about the legislative purpose behind the sworn affidavit requirement. He stated his concern that it perpetuates outmoded stereotypes that fathers are suitable caregivers for infant children.

Justice Nehring took issue with the majority’s discussion of the history of substantive due process, which he felt was overly academic and unnecessary to deciding the case at hand. (He may be right about that, but I still find such historical discussions to be interesting and enlightening).

Justice Parrish agreed with Justice Nehring’s conclusions, but regretted the tenor of his dissent. He said he would strike the law on the basis that it does not pass intermediate scrutiny because it is does not substantially further the government’s stated objective.

He stated his belief that the majority actually applied a rational basis standard of scrutiny under the guise of applying intermediate scrutiny. He expressed his concern that the majority had in fact created two classes of intermediate scrutiny, one of which is less rigorous when the law at issue does not result in “official action that close[s] a door or den[ies] opportunity to women (or men)”, which the law at hand did not do.

I think the majority opinion and the dissenting opinions are each thoughtful and worth reading. I wonder if the reader sometimes feels afflicted, as I do, with the troublesome malady of seeing both sides of an issue.

After reading the majority opinion, I felt sure that they were right on the money. But after reading the dissenting opinions, I found myself second guessing that conclusion.

Specifically, I asked myself the following questions:

1. Although the sworn affidavit requirement is not in itself onerous, does it really further the government’s stated objective of facilitating the adoption process by ensuring that the unwed father demonstrates a forward looking commitment to raising the child before being allowed to consent to the adoption?
2. Is the sworn affidavit requirement redundant, as Justice Nehring implies, because the requirements of filing a paternity suit and a notice of commencement serve the same objective?
3. If so, regardless of the law’s constitutionality, is it a wise law, especially considering that everyone agrees it is a discriminatory law?
4. Although the requirement of a sworn affidavit by itself is not onerous, as a potentially unnecessary additional hurdle in the path of unmarried fathers, is it the proverbial straw that breaks the camel’s back?
5. Should an unmarried father who objectively shows a commitment to his child by complying with all of the other requirements of the law be denied an opportunity to form a relationship with his child simply because he failed to comply with this seemingly easy step?
6. What if the father failed to comply with the requirement because of the bad advice of his attorney, or because he lacked the resources to hire an attorney to navigate the labyrinth of Utah’s adoption laws?

I would submit that there is at least one important lesson from this case; namely, that unmarried fathers in Utah should not go it alone, but should seek counsel from an experienced attorney as they seek to assert their rights as a parent.

And file that sworn affidavit!

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.