Paternity
This is general information about paternity under Utah law. If you have questions about establishing maternity, assisted reproduction, gestational agreements, or anticipate disputes about parentage, talk to an attorney.
Paternity
Paternity means fatherhood. When a child is born to people who are married to each other, the husband and wife are recognized as the parents of the child, and the mother and father have the same rights and responsibilities under the law.
When a child is born to people who are not married to each other, the father of the child does not automatically have these same rights and responsibilities until paternity is established.
What should be done when a child is born during a marriage and the husband is not the child's biological father is beyond the scope of this page. Talk to an attorney for advice. See the Finding Legal Help web page for information about free and low cost ways to get legal help.
Adoption - protecting the father's rights
A man who has had a sexual relationship with a woman is on notice that the woman may become pregnant, and that she may put the child up for adoption.
If the father thinks the mother may try to put the child up for adoption, he should seek legal advice immediately.
The unmarried father will be permanently precluded from claiming any rights unless he has previously established that he is entitled to notice of an adoption proceeding. See Utah Code section 78B-6-110(3).
To protect his rights and interests, an unmarried biological father must strictly comply with the steps below, even if he doesn't know the mother is pregnant. See Utah Code section 78B-6-110(3).
- File a paternity case (called a parentage action) in a district court in Utah. See our page on custody cases for more information.
- Complete and file a Notice of Commencement of Paternity Proceeding form with the Utah State Office of Vital Records.
- File an affidavit in the parentage case stating that he is able to have full custody, support the child, and pay for expenses of the mother's pregnancy and childbirth.
- Offer to pay and actually have paid a fair amount of the expenses incurred in connection with the mother's pregnancy and childbirth, in accordance with his financial ability, unless he is unaware of the pregnancy or he was prevented from paying.
If the father does not live in Utah and does not know that the mother has given birth in Utah, his rights will still be terminated unless he has followed the requirements in the state where he has been living.
If the father does not live in Utah and does know the mother is giving birth in Utah, he must complete the steps above.
Establishing Paternity in Utah
Paternity means fatherhood. When are a father's rights are established? It depends on whether the parents were married when a child is born.
- When a married couple has a baby, the husband is the legal father. He and the mother have the same rights and duties for the child
- When unmarried parents have a baby, the father does not automatically have legal rights and duties. He must take steps to establish his rights and responsibilities. This is called establishing paternity. Usually the mother has sole legal and physical custody of the children until a court orders something different. For more information see our page on paternity.
There are 3 ways to establish paternity
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Voluntary Declaration of Paternity (VDP) |
Administrative Paternity Order |
Custody Order |
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|---|---|---|---|
What is this? |
Unmarried parents can sign a VDP to say that a man is the biological father of a child. The VDP is filed with the Office of Vital Records and Statistics. This adds the father's name to the child’s Utah birth certificate. It can also change the child's name if the child is less than 1 year old. |
The Office of Recovery Services (ORS) issues a Notice of Agency Action (NAA) to both parents after the parent with custody applies for cash assistance from the state. Cash assistance means welfare like TANF, FEP, or Medicaid. Both parents may respond to the NAA. ORS will determine who is the father of the child. |
A Custody Order comes from a court case. One of the parents can file a custody case to ask the court to decide who the legal father is of a child. If the court order says to add a parent, remove a parent, or change the child’s name, the parents can amend a Utah birth certificate based on that order. |
How do I do it? |
A birthing facility or birth attendant should give parents the VDP to fill out when a child is born. Parents can also go to their local health department. Both the mother and biological father need to sign the form. |
ORS automatically starts the process when a parent applies for cash assistance and a child is listed on the application. Parents can also apply for child support through ORS. |
A parent can use the Online Court Assistance Program (OCAP) to get the documents to start a court case. |
Can I go to mediation? |
Mediation is an option for parents who want to set up a parenting plan that addresses parent-time, custody, support, and other child related issues. However, parents would need to get a Custody Order in court to enforce any agreement. |
Mediation is an option for parents who want to set up a parenting plan that addresses parent-time, custody, support, and other child related issues. However, parents would need to get a Custody Order in court to enforce any agreement. |
Parents are required to attend mediation to try to resolve their case, including issues related to parent-time, custody, support, and other related issues. Utah Code of Judicial Administration 4-510.05. |
Will this order the parents to pay child support? |
No, the VDP process does not set up child support. |
Child support is ordered child based on the Child Support Calculator. The order also talks about the parents paying for a child’s medical insurance and expenses. |
Child support is ordered based on the Child Support Calculator. The order also talks about the parents paying for a child’s medical insurance and expenses. |
What about custody and parent-time issues? |
That is not part of this process. A VDP does not say who has custody over the child. It does not create a plan for where the child will live or when they will have time with each parent. If parents are not able to work things out themselves they may need to file a custody case. |
That is not part of this process. The ORS order does not say who has custody over the child. It does not create a plan for where the child will live or when they will have time with each parent. If parents are not able to work things out themselves they may need to file a custody case. |
The court will also make orders about child custody and parent-time. Parent-time issues can be addressed establishing court-ordered parent-time for the non-custodial parent. |
What else should I know? |
If the mother is married and her husband is not the biological father of the child the parents can only do the VDP if the wife, husband, and biological father are all willing to sign the form. |
N/A |
The court is required to make decisions about child support, custody, and parent-time. |
Where can I find more information? |
Utah Code Title 81, Chapter 6, Utah Code 26B-9-205, Utah Admin Code R527-200-12 |
Utah Code Title 78B, Chapter 12, Utah Code 30-3-10 through 37 |
Genetic testing
Genetic testing can determine whether or not a man is the father of a child. A court order for genetic testing is not required if both parties will voluntarily take the test.
If one party will not voluntarily take the test or allow the child to be tested, the other party can ask the court to order the other party to take the test by filing a Motion for Genetic Testing.
Cases in which paternity could be an issue include divorce, parentage (specifically, paternity) or judicial recognition of a relationship as a marriage.
For more information and forms, see the Motion for Genetic Testing web page
Costs
The initial costs for court-ordered testing are usually paid by the person asking for the test. However, the court can order either party to pay for the test or order the parties to split the costs. The parties can also decide between themselves who will pay.
Testing an unborn child
A judge cannot order genetic testing on an unborn child. A judge can order the test be conducted after the child is born.
Testing more than one man
If there are two or more men who might be the father, the court can order that the men be tested either concurrently (at the same time) or consecutively (first one, then another and so on until they are all tested).
If the father has died or is otherwise not available to be tested
In the event the man is not available for testing, the court may order that a relative of his submit a DNA specimen for testing.
The person requesting the test must show that there is a very good reason for this order and that the circumstances are extraordinary.
Changes to the birth certificate
A court order can talk about the addition or removal of a parent's name from the minor child's birth certificate. For example, if a father's name was not added to the child's birth certificate at birth, but the father is determined to be the biological and legal father in the parentage case, the court order can state that the father's name should be added to the child's birth certificate.
Parties may also ask to change the minor's legal name by including a statement in the petition (or counter petition) and decree indicating that the name is being changed. The party should include the child's current full legal name and the new complete legal name that will be used after the parentage decree is granted. If parties can't agree about what the child's name should be, the judge will make a decision about what is in the child's best interest.
OCAP can include these requests in your papers.
Once an order is signed by the judge you can provide a certified copy of the order to Utah Vital Records and Statistics and complete their process for getting an Amended Birth Certificate. More information required by the Utah Office of Vital Records and Statistics to make changes to birth certificates is found on that agency's website.