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Utah's top court denies unwed father's appeal for child custody

SALT LAKE CITY — In a split decision, members of the Utah Supreme Court denied an unwed father's appeal for custody of his now-3-year-old child.

William Bolden, biological father of the child, objected to an adoption by parents referred to in court documents as John and Jane Doe. The court ruled that Bolden did not "preserve his legal rights as a father by filing a paternity affidavit within the time prescribed," wrote Justice Thomas Lee in the opinion of the court.

"The family's grateful that the court ruled as it did," said Larry Jenkins, attorney for the child's adoptive parents. "Hopefully, things can finally come to a conclusion."

According to the court's opinion, Bolden filed an "unsigned, unverified petition" with the district court about two weeks before the child was born, trying to formalize his paternity and initiate custody, parent time and child support.

A week later, he filed a sworn and notarized notice to the district court indicating he had begun paternity proceedings for the child. But he failed to file a separate sworn affidavit, required under law, detailing his desire for custody of the child, a child support order and his plans to care for the child. According to Bolden, he failed to do so because of the advice of counsel.

Three days after the child was born, the child's mother moved forward with adoption. The adoptive parents knew that Bolden had attempted to establish his parental rights, but had lost those rights when he failed to file the affidavit along with his petition for paternity.

After the child was born and adoption proceedings had begun, Bolden tried to prevent the adoption and filed the affidavit required by law. Utah law requires a birth father to file such an affidavit, but does not require it of a mother. By carrying a child full term, the mother inherently indicates an interest in the child, while an unwed father's role "may be unknown or at least indeterminate," according to the court opinion.

Although Bolden created a paternity petition before the child was born, it lacked a signature written under oath, which is "a matter of substantial legal significance," read the opinion.

"Certainly we're disappointed. That goes without saying," said Scott Wiser, one of Bolden's attorneys.

Wiser said Bolden's attorneys are considering an appeal to the U.S. Supreme Court, but regardless of the outcome, "I think a poor child is losing here and most importantly, it’s a child who is never going to have a relationship with a dad who was committed and wanted to be involved in his son's life and wanted to support him,” Wiser said.

Bolden sought for visitation with the child through the court process, Wiser said, but was denied.

“The law’s purpose is to weed out deadbeat dads who just aren’t interested, aren’t doing anything. We don’t want to screw over dads who are willing to step up to the plate, take responsibility, just because of gotcha tactics. And that’s unfortunately what this case is. It’s a pure technicality,” Wiser said.

Chief Justice Matthew Durrant agreed with the opinion in full; Judge Gregory Orme concurred in the judgment and joined the opinion in specific sections. Associate Chief Justice Ronald Nehring and Justice Jill Parrish filed dissenting opinions.

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