In Utah, does a father have a right to get visitation, even if paternity has not yet been established? Does the law regarding an Utah Father’s Rights include the right for the father to request temporary orders regarding visitation or custody, even if paternity has not yet been established?
The answer is YES. Since the husband is presumed to be the biological father when a child is born to a couple who is married, this issue applies to Utah Father’s Rights situations where the mother and father of a child were never married. Temporary Custody Order While Action is Pending allows the following regarding an Utah Father’s Rights to visitation and/or custody while a court case is pending, or temporary orders:
In any proceeding pertaining to the allocation of parental rights and responsibilities for the care of a child, when requested in the complaint, answer, or counterclaim, or by motion served with the pleading, upon satisfactory proof by affidavit duly filed with the clerk of the court, the court, without oral hearing and for good cause shown, may make a temporary order regarding the allocation of parental rights and responsibilities for the care of the child while the action is pending.
If a parent and child relationship has not already been established pursuant to section 3111.02 of the Revised Code, the court may take into consideration when determining whether to award parenting time, visitation rights, or temporary custody to a putative father that the putative father is named on the birth record of the child, the child has the putative father’s surname, or a clear pattern of a parent and child relationship between the child and the putative father exists.
There are several things about that statute that you want to read carefully. Every word matters. Here is some additional information about important phrases from the statute:
PROCEEDING PERTAINING TO THE ALLOCATION OF PARENTAL RIGHTS AND RESPONSIBILITIES
- First, this means a COURT It does NOT apply to an administrative proceeding for child support through the ORS. The ORS has no authority to order visitation. Sometimes, during an administrative child support proceeding, if the parties agree, the ORS attorney or liason will give the parties a form to seek court ordered visitation, but that form is still submitted to the COURT, and is not ordered by the ORS.
- Second, notice the phrase “parentalrights and responsibilities”. This means that if a Father files a motion in an actions which was only filed as a grandparent visitation proceeding, the court may find that it has no authority to make temporary orders for visitation for the Father. The Father may file a motion to be made a party to the grandparent visitation proceeding, but unless he files a Complaint for the Allocation of Parental Rights and Responsibilities (and, if applicable, for establishment of paternity), the court may find that the action is not a “proceeding pertaining to the allocation of parental rights and responsibilities), and therefore deny the Father’s request for Temporary Visitation. (The Mother would, at that point, still have full custody of the child pursuant to Utah law and would not need temporary orders for visitation.)
- Temporary Orders are available during the INITIAL proceeding, not in post-decree proceedings.
- Temporary Orders of visitation are not available in a court proceeding which is merely an objection to an administrative child support order. The court proceeding has to include a complaint, answer or counterclaim for parental rights and responsibilities.
WHEN REQUESTED IN THE COMPLAINT, ANSWER OR COUNTERCLAIM, OR BY MOTION SERVED WITH THE PLEADING:
To establish an Utah Father’s Rights to temporary visitation or custody, the Father, or his Utah Father’s Rights Attorney, should request temporary orders pursuant to the Utah Rules of Civil Procedure in his Complaint, or his Answer to the Mother’s Complaint, if the Mother filed the Complaint. In the alternative, the Father can seek his Utah Father’s Rights by filing a motion. It is unclear from the statute whether his Motion must be served with his Complaint, Answer or Counterclaim, but it is the better practice to file the Motion at the outset of the case. In addition, sometimes a request tucked at the end of a Complaint Answer or Counterclaim escapes the notice of the court at the initial hearing, but a Motion which is pending on the Court’s Docket is more likely to be noticed and addressed at the first hearing.
Something that is important to note is that if child support is not yet established, but paternity is established (perhaps through an Affidavit signed at the child’s birth which allows the Father’s name to be on the child’s birth certificate), Utah judges and magistrates almost always establish a temporary order of child support. If the father, or his attorney, has not already filed a Motion for Temporary Orders or requested temporary orders in his complaint, this would be a great time to point out that Utah law allows the following:
Whenever a court issues a child support order, it shall include in the order specific provisions for regular, holiday, vacation, parenting time, and special visitation in accordance with the sections of the Utah Code or in accordance with any other applicable section of Utah law.
Free Consultation with a Utah Father’s Rights Lawyer
If you have a question about child custody question or if you need to protect or enforce your rights, please call Ascent Law at (801) 676-5506. We will help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506