High court grants man custody of boy

Friday, March 21, 2008

Finally a court rule in favor of non-bio father to rise his ex-wife child.



A Utah man is the legal father of a boy he raised as his own, even though his wife conceived the child through an extramarital affair, the Utah Supreme Court ruled Tuesday.


As part of divorce proceedings initiated when the boy was about 16 months old, a 3rd District judge ruled that the other man was the "natural, biological, and legal father" of the child. He gave this man and the mother, who married after her divorce was finalized, joint legal custody and primary physical custody of the boy.


The ex-husband was granted "joint physical custody time," which resulted in the boy spending about half his time living with him. He appealed, saying he should be recognized as the child's father and also have legal custody.

In a 4-to-1 decision, the high court upheld a 2006 Court of Appeals ruling that held the former husband is the legal father. The Supreme Court based its ruling on an analysis it developed in a 1990 case on whether the presumption that a husband is the father of a child born to his wife during their marriage can be challenged.

Because the marriage of the mother and her husband was intact when the boy was born in 1999 and the husband - who knew the child was not his biological son - voluntarily assumed parental responsibility, "the presumption of [his] paternity cannot be challenged in this case," the Supreme Court majority said Chief Justice .


Christine Durham dissented, saying the case should not be decided by the 1990 analysis. Rather, she argued, a decision on the right to challenge the husband's paternity should be based on more recent statutory changes in family law.


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