Child Support and Spousal Rights for Illegitimate Children

Child Support and Spousal Rights for Illegitimate Children

Imagine Mark and Ashley have a child, Mary, during the course of their 10-year marriage.  Upon filing for divorce, Mark finds out that Ashley had an affair and Mary is not his biological child.  After the divorce is finalized, is Mark responsible to pay child support for Mary?

The Marital Presumption

When children are born during a valid marriage, there is a presumption that the child born to the married wife is the natural offspring of her husband. [1]  Although, that presumption may be rebutted.  The Utah Court of Appeals determined that a husband has no rights to custody of his wife’s illegitimate child born during their marriage. [2]  To beat this presumption, proof is necessary and must come from other sources than a spouse’s testimony.  [3]  Such as a blood test.   If this presumption is rebutted, the non-biological father has no responsibilities toward the child.  The Schoolcraft court found that if that non-biological father has no responsibilities, then, as a corollary, he also has no rights with respect to that child, including custody rights and standing.

The Appellate Court decision was overturned by the Utah Supreme Court where it found that a person that is not a child’s natural or legal parent does not mean that he or she must stand as a total stranger to the child where custody is concerned.  Certain people, because of their relationship to a child, are at least entitled to standing to seek a determination as to whether it would be in the best interest of the child for them to have custody. [4]

The Utah Supreme Court concluded that several factors may justify granting a person standing to petition for custody of a child, including financial obligations that a person has toward a child.    Furthermore, a person’s personal relationship with a child is equally important.

In loco parentis

When someone is not a legal parent, but still has a personal relationship with a child, the court will apply the doctrine of in loco parentis.  This means that a person is acting in the place of a parent, or acting as a temporary caretaker. [5]  The central question is whether the in loco parentis doctrine perpetuates parent-like rights and obligations, albeit temporary in nature.

The Utah Supreme Court has declined to follow the doctrine of loco parentis doctrine by finding that it does not convey perpetual rights that survive the termination of the parent-like relationship.  Meaning, Mark from the above example, would not be responsible for paying child support for Mary.  Although there is a presumption that Mark is the father, that presumption can be rebutted by a blood test.  After which, the parent-like relationship with Mary will have possibly ceased, ending any obligations like child support.

Each case is different, and facts will change outcomes.  For example, what if Mark wanted to continue his relationship with Mary although he was not her biological father?  What if Ashley didn’t want Mark to be in Mary’s life post-divorce.  These questions are currently unanswered by Utah courts.  Making your decision on legal counsel that much more important.

  1. Teece v. Teece, 715 P.2d 106 (Utah 1986)
  2. J.W.F. v. Schoolcraft, 763 P.2d 1217 (Utah Ct. App. 1988)
  3. Lopes v. Lopes, 518 P.2d 687 (Utah 1974)
  4. State in Interest of J.W.F., 799 P.2d 710 (Utah 1990)
  5. Gribble v. Gribble, 583 P.2s 64 (Utah 1978)


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