In the Matter of the Adoption of J.S. (Bolden v Doe)

Bolden moved to intervene in the adoption proceeding initiated by Doe to adopt J.S. the son of an unwed mother whom Bolden claimed was his biological son. Bolden failed to file the affidavit required by Utah Code 78B-6-121(3) setting out his parenting plan for J.S. within the allowed timeframe but did file a paternity suit and the affidavit with his motion to intervene. The district court ruled his failure to timely file the affidavit meant he had no parental rights and denied the motion. The Court, 3-2 in judgment, affirmed. The majority held that the affidavit requirement is a procedural mechanism to allow putative fathers to secure their rights and filing the affidavit is the rough equivalent of the birth mother’s act of carrying the child to term. The majority characterized Bolden’s claim as one of substantive due process and held that while there is tension in whether a putative father’s rights are subject to strict scrutiny or rational review, Bolden cannot complain about a procedure he failed to strictly follow. A plurality argued the proper standard is rational review given the total lack of historical support for immediate vesting of parental rights in putative fathers of the children of unmarried mothers and would have held the affidavit requirement rational as it serves the interest of getting children in families and protecting their best interests.. The majority rejected Bolden’s state constitutional equal protection claim noting that 121(3) does discriminate on the basis of sex, but, the affidavit is a sufficiently close fit to the interests of protecting the best interests of the child particularly as it is the rough equivalent of giving birth and all states require putative fathers to take some action to protect their rights. Associate Chief Justice Nehring dissented arguing that 121(3) is based on archaic sex stereotypes that unwed fathers are uninterested in their offspring and incapable as a general rule of being good caregivers. He further argued that 121(3) is not substantially related to the any government interest noting Doe bears the burden of proof and failed to argue anything beyond stereotypes and generalizations, 121(3) is redundant given the putative father will have identified himself and offered to pay expenses by the time the affidavit is due and the comparison of birth and the affidavit is itself based on sex stereotypes as birth tells us nothing about the mother’s plans, ability or willingness to be a parent. He further argued that 121(3) as applied to Bolden was fundamentally unfair as it deprived Bolden of any opportunity to form a relationship with his son without providing any alternative means to have his day in court. He finally argued that the right to rear one’s children is fundamental, Utah applies strict scrutiny to laws alleged infringing on that right and 121(3) is nether narrowly tailored nor does it serve a compelling governmental interest. Justice Parrish dissented arguing that 121(3) discriminates on the basis of sex and imposing a forward looking burden on unwed fathers but not unwed mothers does not serve any important state interest and is thus unconstitutional.