IN THE UTAH COURT OF APPEALS

This opinion is subject to revision before

publication in the Pacific Reporter.

IN THE
UTAH COURT OF APPEALS—-ooOoo—-Kelly F. Pearson,Petitioner and Appellant,v.Kimberlee Y. Pearson,Respondent and Appellee.______________________________Peter D. Thanos,Intervenor and Appellee.))))))))))))))OPINION(For Official Publication)Case No. 20040677-CAF I L E D(March 30, 2006)2006 UT App 128—–Third District, Salt Lake Department, 004907881The Honorable Tyrone MedleyAttorneys: Paige Bigelow,
Salt Lake City, for AppellantSteven H. Gunn, Kellie F. Williams, and Jarrod H.
Jennings,
Salt Lake City, for Appellees—–Before Judges
Greenwood, Orme, and Thorne.THORNE, Judge:¶1 Kelly F. Pearson (Father) appeals from the trial court’ssupplemental decree of divorce awarding joint legal custody ofthe minor child Z.P. to Kimberlee Y. Pearson (Mother) andintervenor Peter D. Thanos. We reverse.BACKGROUND¶2 Father and Mother (collectively the Pearsons) married in1992. In July 1997, the couple had their first child, N.P. Inlate 1998, Mother became pregnant again, and a second son, Z.P.,was born in September 1999.¶3 Unbeknownst to Father, Mother had been involved in aromantic relationship with Thanos beginning sometime in 1996.Mother believed from early on in her pregnancy with Z.P. that1Thanos and Mother married in July 2002, shortly after thetrial court granted Mother’s request to bifurcate this case andentered a decree of divorce between the Pearsons. Thanos andMother subsequently had another child, daughter M.T., whosecustody is not implicated in this case. Also, despite therelationship between Mother and Thanos prior to N.P.’s birth,there is no suggestion that Thanos is N.P.’s biological father.20040677-CA 2Thanos was Z.P.’s biological father. She informed Father abouther affair with Thanos and her belief about Z.P.’s paternity inMarch 1999. Despite Mother’s infidelity, the Pearsons stayedtogether in an attempt to make their marriage work. Fatheragreed to raise Z.P. as his own, and Mother agreed to treatFather as Z.P.’s natural father. Z.P. was born in September1999, and Father was named as Z.P.’s father on his birthcertificate. Father and Mother raised Z.P. together until theyseparated in May 2000. After separation and until the trialcourt’s custody determination, the Pearsons voluntarily sharedphysical custody of Z.P. on a fifty-fifty basis.1¶4 Mother informed Thanos in January 1999 that she believed himto be Z.P.’s biological father. Thanos was unwilling to be knownor recognized as the child’s father and did not provide anymonetary support toward Z.P.’s prenatal care or birth costs.Thanos acquiesced in Father’s role as Z.P.’s father. From birthuntil about January 2001, the first sixteen months of Z.P.’slife, Thanos did not provide any care or support for Z.P. andonly saw him about half a dozen times.¶5 In December 2000, Father initiated divorce proceedings.Thanos moved to intervene in the proceedings in January 2001,claiming that he was Z.P.’s biological father. Concurrently,Mother denied Father’s paternity of Z.P. in her answer and askedthe trial court to declare that Father was not Z.P.’s biologicalfather and that he had no rights of custody or visitation withZ.P. Father opposed both motions. The commissioner hearing thematter determined that Thanos lacked standing to contest Z.P.’spaternity.¶6 Thanos and Mother objected to the commissioner’s standingdecision. The trial court determined that the issue was governedby In re J.W.F., 799 P.2d 710 (
Utah 1990), and that it neededadditional information to adequately address the policyconsiderations set forth in that case. The trial court appointedDr. Jill Sanders to provide the court with an independent2The term “Schoolcraft analysis” refers to the analysis setforth in In re J.W.F., 799 P.2d 710 (
Utah 1990), and is named forthe petitioner in that case. A Schoolcraft analysis determines aperson’s standing to challenge the presumption of legitimacy of achild born into a marriage, based primarily on two policyconsiderations: “preserving the stability of the marriage andprotecting children from disruptive and unnecessary attacks upontheir paternity.”
Id. at 713.3The parental presumption is “the presumption in favor ofawarding custody to a natural parent over a nonparent.”
Davis v.
Davis, 2001 UT App 225,¶1, 29 P.3d 676.20040677-CA 3Schoolcraft analysis.2 Sanders was to address the second prongof the Schoolcraft test–whether permitting Thanos to seekpaternity of Z.P. would be disruptive to Z.P.’s relationship withFather. She concluded that Thanos’s presence in Z.P.’s lifewould not be inherently harmful to Z.P. or to Z.P.’s relationshipwith Father.¶7 After considering Sanders’s conclusions and the Schoolcraftfactors, the trial court granted Thanos’s motion to intervene inNovember 2002. Addressing the first prong of the Schoolcraftanalysis, the trial court concluded that “the interest inpreserving the stability of the [Pearsons’] marriage is not aconsideration, due to the fact that there is no marriage topreserve. The stability was shattered when the parties separatedand [Z.P.] was approximately nine months of age.” As to thesecond prong, the court relied on Sanders’s report to concludethat Thanos’s challenge would not be “disruptive to Z.P. or anunnecessary attack on his paternity,” and was “in the bestinterests of the child.”¶8 Father and Thanos both filed motions for summary judgment onthe issue of Z.P.’s paternity. On May 8, 2003, the trial courtgranted Thanos’s motion and denied Father’s motion. The court’sruling determined Thanos to be the natural, biological, and legalfather of Z.P.¶9 The trial court issued its custody decision on May 11, 2004.Relying on its previous paternity determination, the courtapplied the parental presumption3 in favor of Mother over Fatheras regards to Z.P. The trial court next determined that Thanos’sparental presumption over Father had been rebutted, finding thatfor the first fifteen months of Z.P.’s life, Thanos “did not havea strong mutual bond” with Z.P., “did not demonstrate awillingness to sacrifice his own interests and welfare for[Z.P.], and generally lacked the sympathy for and understanding20040677-CA 4of [Z.P.] that is characteristic of parents generally.” See
Hutchinson v.
Hutchinson, 649 P.2d 38, 41 (
Utah 1982) (listingfactors for rebuttal of parental presumption). Accordingly, thetrial court placed Father and Thanos on an equal footing and madeits custody determination between them based solely on the bestinterests of Z.P. See id.¶10 The trial court granted Mother and Thanos joint legalcustody and primary physical custody of Z.P. Mother and Fatherwere granted joint legal custody of N.P., with primary physicalcustody in Mother. Father was granted “joint physical custodytime” with N.P. and Z.P. The boys rotated between households ona weekly basis, resulting in an approximately equal amount ofphysical custody in each household.¶11 Father appeals from the trial court’s order allowing Thanosto intervene, its grant of summary judgment to Thanos on theissue of Z.P.’s paternity, and its custody determinations to theextent that they relied on Thanos’s paternity, and Father’s nonpaternity,of Z.P.ISSUES AND STANDARDS OF REVIEW¶12 Father raises multiple issues on appeal, but our decisionrests on the question of Thanos’s standing to challenge Z.P.’spaternity. Generally, a person’s standing to request particularrelief presents a question of law.

See
Washington
County WaterConservancy Dist. v. Morgan, 2003 UT 58,¶18, 82 P.3d 1125. Tothe extent that factual findings inform the issue of standing,“‘[w]e review such factual determinations made by a trial courtwith deference.'”
Id. (quoting Kearns-Tribune Corp. v.Wilkinson, 946 P.2d 372, 373-74 (
Utah 1997)). “‘Because of theimportant policy considerations involved in granting or denyingstanding, we closely review trial court determinations of whethera given set of facts fits the legal requirements for standing,granting minimal discretion to the trial court.'”
Id. (quotingKearns-Tribune Corp., 946 P.2d at 374).ANALYSISI. The Schoolcraft Test¶13 The trial court determined that, as of November 2002,Thanos’s challenge to Z.P.’s paternity would not affect thestability of the Pearsons’ failed marriage and would notconstitute a disruptive and unnecessary attack on Z.P.’spaternity. See In re J.W.F., 799 P.2d 710 (
Utah 1990).20040677-CA 5Accordingly, the trial court found that Thanos had standing tochallenge Z.P.’s paternity under the Schoolcraft test.¶14 While we do not necessarily disagree with the trial court’sfactual findings regarding the evolution of the relationshipsbetween Z.P. and the various parties, we determine that Thanoswholly lacked Schoolcraft standing for a substantial period oftime prior to his establishment of a relationship with Z.P. Evenwith the breakup of the Pearsons’ marriage and the development ofa relationship between Z.P. and Thanos, we cannot agree with thetrial court’s conclusion that Thanos satisfied the Schoolcrafttest by November 2002. See id. at 713. Accordingly, wedetermine that the trial court erred in allowing Thanos tointervene in this action.A. Preservation of the Stability of Marriage¶15 The trial court found that “the first prong of theSchoolcraft analysis–relating to preserving the stability of themarriage–was not a consideration in this case, due to the factthat there was no marriage between [Father] and [Mother] to bepreserved.” Although we recognize that a divorce terminates anyparticular marriage and leaves nothing to preserve, we stilldisagree with the trial court’s assumption that the firstSchoolcraft prong loses all relevance upon divorce. Rather, wereview the totality of the circumstances to determine whether aparticular paternity challenge conflicts with the policy goal ofpreserving the stability of the marriage.¶16 The trial court apparently relied on In re J.W.F., 799 P.2d710 (
Utah 1990), to reach its finding that preservation ofmarriage becomes moot upon the divorce or separation of theparties. In that case, Winfield and Linda Schoolcraft weremarried in 1984 and lived together for approximately eight monthsbefore Linda left Winfield. See id. at 712. In November 1985,some seven months to a year after the parties separated, Lindagave birth to J.W.F. Linda abandoned J.W.F. shortly thereafter,and the State initiated abandonment proceedings in December 1985.Upon learning of the child’s birth and the abandonmentproceedings in August 1986, Winfield filed a petition for custodyof J.W.F., arguing that he was married to Linda and living withher at the time of conception. At this time, the parties hadstill not obtained a formal divorce. See id.¶17 The standing issue in In re J.W.F. was whether a guardian adlitem could challenge Winfield’s custody petition and presumedpaternity of J.W.F. The supreme court noted that “the class ofpersons permitted to challenge the presumption of paternityshould be limited.”
Id. at 713. The court then identified two20040677-CA 6“paramount consideration[s]” that must guide standing decisionsin this context: “preserving the stability of the marriage andprotecting children from disruptive and unnecessary attacks upontheir paternity.”
Id. “[W]hether individuals can challenge thepresumption of legitimacy should depend not on their legal statusalone, but on a case-by-case determination of whether theabove-stated policies would be undermined by permitting thechallenge.”
Id.¶18 In In re J.W.F., the parties’ long separation prior to thebirth of J.W.F. led the supreme court to conclude that “[t]hestability of the marriage between Winfield and Linda Schoolcraftwas shaken long ago, and their marriage is one in name only.”
Id. The supreme court permitted a challenge to Winfield’spaternity in these circumstances, deeming it “not inconsistent”with the stated policy of preserving the stability of themarriage. Id. Notably, each of the three cases cited inSchoolcraft in support of this conclusion also involvedsituations where divorce or separation occurred prior to ornearly concurrent with the birth of the child. See Teece v.Teece, 715 P.2d 106, 106 (
Utah 1986) (“In May of 1981, plaintiffgave birth to a child. Soon thereafter, she filed this actionfor divorce.”); Roods v. Roods, 645 P.2d 640, 641 (
Utah 1982)(addressing first husband’s attempt to deny paternity where childwas conceived during his marriage but born into a subsequentmarriage between mother and another man); Lopes v. Lopes, 30
Utah2d 393, 518 P.2d 687, 688 (1974) (addressing paternity questionwhen child was yet “to be born” at the time divorce pleadingswere filed).¶19 By contrast, the Pearsons made substantial efforts tomaintain their marriage even though both parties knew midwaythrough Z.P.’s gestation that Thanos was the likely biologicalfather. The Pearsons disagree about their intent regardingFather’s relationship to Z.P. Father contends that both he andMother agreed that Father would raise Z.P. as his child in allrespects, while Mother asserts only that she agreed to stay andtry to make the marriage work so long as Father would not punishher or Z.P. for her infidelity. The trial court made no findingson the issue, but did find that the Pearsons did not separateuntil Z.P. was approximately nine months old.¶20 While not dispositive of Thanos’s standing, we determinethat the Pearsons’ efforts to maintain their marriage afterZ.P.’s birth remain relevant to the Schoolcraft analysis, evenpost-divorce. The question is not whether the Pearsons’ marriageultimately failed, but rather whether the potential of achallenge to Z.P.’s paternity would have undermined the Pearsons’4We note that Thanos’s paternity challenge arose entirelywithin the duration of the Pearsons’ marriage, and that Thanosfiled his motion to intervene concurrently with Mother’sresponsive pleading in the Pearsons’ divorce case, prior to theactual decree of divorce.5We note that the public policy in favor of preserving thestability of marriage, always strong in
Utah, may be evenstronger in light of
Utah‘s enshrinement of so-called traditionalmarriage into its constitution in 2004. See
Utah Const. art. I,§ 29 (Supp. 2005); but see Citizens for Equal Prot. v. Bruning,368 F. Supp. 2d 980 (D. Neb. 2005) (declaring a similar stateconstitutional amendment invalid on various grounds includingfree association and equal protection).20040677-CA 7marriage while it was still in existence.4 Under Father’sversion of events, the possibility of raising Z.P. as his ownchild without interference from Thanos was perhaps the centralissue motivating him to make the marriage work. While Mother’sversion is substantially different, even her recollectionindicates the importance of the issue to Father, and her ownwillingness to make the marriage work.¶21 In any event, the Pearsons stayed together in marriage forover a year after Father first became aware of Thanos’s paternityof Z.P. The trial court erred in failing to recognize that thePearsons’ shared parentage of Z.P. represented a stabilizingforce in their then-existing marriage, and that the potential ofa paternity challenge would diminish that stabilizing effect.Thus, even after the Pearsons filed for divorce, Thanos’schallenge to Z.P.’s paternity can be said to have had someundermining effect on the stability of the Pearsons’ marriagewithin the meaning of Schoolcraft’s public policy analysis.5While the reality of the Pearsons’ ultimate divorce may minimizethe importance of the first Schoolcraft prong, we cannot say onthe facts of this case that it obviates that prong altogether.B. Protection of Children from Attacks on Paternity¶22 The second, and in this case more problematic, policyconsideration under the Schoolcraft test is “protecting childrenfrom disruptive and unnecessary attacks upon their paternity.”In re J.W.F., 799 P.2d 710, 713 (
Utah 1990). There are crucialdistinctions between the Pearsons’ case and In re J.W.F. thatlead us to conclude that Thanos’s challenge to Z.P.’s paternityis both disruptive and unnecessary.6Dr. Sanders’s May 13, 2002 report concluded that “[f]rom adevelopmental and psychological perspective, [Z.P.]’s functioningis not inherently disrupted by [Thanos’s] involvement and[Thanos’s] relationship with [Z.P.] is necessary to [Z.P.]’snormal and positive development.” Dr. Sanders’s supplementalreport of August 26, 2002, further concluded that “[t]here is noreason to believe that further disruption to the relationship(continued…)20040677-CA 8¶23 In In re J.W.F., J.W.F. was promptly abandoned by his motherat birth, his natural father apparently never sought or enjoyedany parental role whatsoever, and his mother’s husband, Winfield,never had custody of J.W.F. or a relationship with him. See id.at 712-13. J.W.F. was a little more than one year old at thetime of the initial standing dispute. Not surprisingly, thesupreme court had no trouble in determining that allowingJ.W.F.’s guardian ad litem standing to litigate his paternitywould not constitute an “unnecessary and disruptive attack[]” onJ.W.F.’s paternity.
Id. at 713. The court stated that “J.W.F.’sexpectations as to who his father is cannot be shaken bypermitting a challenge to the presumption of legitimacy. Thechild has never had a relationship with [Winfield] Schoolcraft,[or his biological father], or even his mother, so he has noexpectations as to who his father is.”
Id.¶24 Clearly, the present case does not involve a lack ofpaternal relationships. Rather, the trial court was presentedwith an undisputed and ongoing paternal relationship betweenFather and Z.P., as well as Thanos’s evolving relationship withZ.P. as a stepfather, and as the father of one of Z.P.’ssiblings. In its November 2002 order granting Thanos’s motion tointervene, the trial court explained its ultimate rationale onthe unnecessary and disruptive prong:The court cannot find that granting Mr.Thanos the standing to intervene would bedisruptive to [Z.P.] or an unnecessary attackon his paternity. In this case, as indicatedby Dr. Sanders in her report, Mr. Thanos hasan established relationship with the childand there is nothing in the reports of Dr.Sanders that would suggest allowing Mr.Thanos to intervene would be adverse to thebest interests of the child. The report ofDr. Sanders, to the contrary, indicates thatit is in the best interests of the child toallow Mr. Thanos to intervene.[6]6(…continued)between [Z.P.] and [Father] is intrinsically linked to Mr.Thanos'[s] presence in [Z.P.]’s life.”Mere involvement or presence in a child’s life is a verydifferent thing than a legal challenge to the child’s paternity.Thus, we do not see Dr. Sanders’s reports as being responsive tothe Schoolcraft goal of “protecting [Z.P.] from disruptive andunnecessary attacks upon [his] paternity.” In re J.W.F., 799P.2d at 713 (emphasis added).20040677-CA 9The November order also recognized that Father had “functioned asZ.P.’s father since his birth.”¶25 We have no reason to question the trial court’s findings asthey relate to the contents of Dr. Sanders’s report or theexistence of some relationship between Thanos and Z.P. inNovember 2002. However, despite the paternal role that Thanosmay eventually have attempted to take, the undisputed facts ofthe case are that Thanos had little interest or involvement inZ.P.’s life until he was approximately sixteen months of age.The trial court recognized as much in its October 2001 orderinitially denying Thanos’s motion to intervene: “Mr. Thanos wascompletely absent from [Z.P.’s] first year of life, was absentfor the first half of his second year of life, and has hadincidental contact during the second half of the second year of[Z.P.’s] life.” As a result of this intentional absence, Z.P.developed a paternal relationship exclusively with Father overthe first two years of his life, a relationship that both Fatherand Z.P. apparently continue to foster to the present.¶26 The Schoolcraft analysis is not intended to protect childrenfrom all attacks on their paternity, but only those that aredisruptive and unnecessary. See id. In evaluating thedisruptiveness of a paternity challenge, the supreme courtfocused on the child’s relationship with the existing fatherfigure and the child’s “expectations as to who his father is.”
Id. Here, the trial court found in its October 2001 order thatFather was the “psychological father of [Z.P.],” that Z.P. had“become closely bonded with [Father],” and that those bonds were“critical.” The trial court further found as a factual matterthat to permit Thanos “to establish his paternity of [Z.P.] andto be introduced at this point as a father figure in [Z.P.’s]life would be immediately disruptive to the child’s stability.”These facts leave little doubt that, at least as of October 2001,Thanos’s paternity challenge would have been disruptive to Z.P.’sexisting paternal relationship with Father and Z.P.’sexpectations as to who his father was.7We are aware that disregarding Dr. Sanders’s conclusionsregarding Z.P.’s best interests seems counterintuitive given thecentral role that the best interests standard plays in every caseinvolving juveniles. Nevertheless, in the context of determiningstanding to contest paternity, the Schoolcraft test is thestandard set by the supreme court to measure the child’s bestinterests as those interests balance against the rights ofothers.20040677-CA 10¶27 We see nothing in the record to indicate that the merepassage of time, or the integration of Thanos into Z.P.’s life asMother’s husband, destroyed or even diminished Z.P.’s paternalrelationship with Father or his expectations as to who his fatherwas. To the contrary, Dr. Sanders’s May 13, 2002 report foundthat “[Z.P.] identifies [Father] as his father and theirattachment is secure, strong and healthy.” Her supplementalreport of August 26, 2002 confirmed that Z.P. and Father shared a“strong and positive parent-child attachment.” Despite Dr.Sanders’s other conclusions regarding Z.P.’s best interests,7 herfindings of a continuing paternal relationship between Z.P. andFather should have been the central focus of the trial court’sSchoolcraft analysis.¶28 In light of those findings, we cannot say that Thanos’sattack on Z.P.’s paternity would not have been disruptive toZ.P.’s paternal relationship with Father and his expectationsabout whom his father was. The entire motivation for Thanos’sattempt to intervene was to establish that he, rather thanFather, was to fulfill the paternal role in Z.P.’s life.Whatever other effects Thanos’s challenge might ultimately haveon Z.P., his direct attack on Father’s paternity of Z.P.certainly fails the Schoolcraft directive of avoiding disruptionof existing paternal relationships.¶29 We must also examine whether Thanos’s paternity challengecan be deemed “necessary.”
Id. In re J.W.F. did not provideguidance on distinguishing between necessary and unnecessarypaternity challenges, and the trial court did not expresslyaddress the issue. We presume that, like the disruption element,the necessity element must be analyzed primarily from the child’sperspective rather than from Father’s or Thanos’s. See id.(emphasizing a policy of “protecting children” and analyzingdisruption from the child’s perspective). We also assume,without deciding, that Schoolcraft standing always exists atbirth and can be lost only thereafter. Cf.
Utah Code Ann. § 78-30-4.14(2) (2002) (establishing standards by which unmarried8This is not inconsistent with Dr. Sanders’s assessment thatThanos has a potentially valuable role to play in Z.P.’s life.That role, however, need not be as the primary father figure.20040677-CA 11biological father can establish paternity so as to defeatadoption of his child by another at birth).¶30 Proceeding under these assumptions, we cannot see howThanos’s ability to challenge Z.P.’s paternity remained necessaryafter he voluntarily absented himself from Z.P.’s life. FromZ.P.’s perspective, he had a father in Father from his earliestability to form paternal bonds. Had the Pearson marriagesucceeded, Father would likely have remained Z.P.’s father in allregards throughout the foreseeable future. Dr. Sanders foundthat, even when the Pearsons’ marriage failed, Z.P. continued toidentify Father as his father and enjoy a strong paternalrelationship with him. Thus, at the time of the trial court’sintervention order, Z.P. had a father and was not in need of adifferent one.¶31 We need not determine the exact point at which Thanos’spaternity challenge became unnecessary for Schoolcraft purposes.It is sufficient in this case to determine that there existed aperiod of many months during which Z.P. developed a strongpaternal relationship with a loving and willing presumed father.So long as that relationship continues, it cannot be said forSchoolcraft purposes that Z.P. has any particular need for hispaternity to be established in another man.8¶32 Looking at the circumstances of this case as a whole, weconclude that the trial court should have deemed Thanos’s attackon Z.P.’s paternity both disruptive and unnecessary. Thanos’schallenge to Z.P.’s presumed paternity became disruptive andunnecessary when he allowed Z.P. to form paternal bonds withFather, and will likely remain so, for Schoolcraft purposes, aslong as those bonds continue.C. The Trial Court Erred in Allowing Thanos to Intervene¶33 In light of our conclusions regarding the application of theSchoolcraft factors to this case, we determine that Thanos lacksstanding to challenge Z.P.’s paternity and that the trial courterred by allowing him to intervene in the Pearsons’ divorceaction. While the Pearsons’ marriage may be long dissolved, wemust give some weight to the fact that the Pearsons attempted tosave their marriage, and that Father’s intent and ability toraise Z.P. as his own were significant factors in that decision.9“Unmarried biological father” for purposes of Utah Codesection 78-30-4.14(2) means a man not married to the child’smother, without regard to whether the man is married to another.See Utah Code Ann. § 78-30-4.11 (2002) (repealed 2005) (defining“unmarried biological father”); id. § 78-30-1.1(5) (Supp. 2005)(same).20040677-CA 12Most significantly, however, an attack on Z.P.’s paternity atthis point would be disruptive of Z.P.’s strong paternalrelationship with Father, a relationship that renders Thanos’schallenge unnecessary from Z.P.’s perspective. Under thesecircumstances, Thanos does not have Schoolcraft standing, and thetrial court erred in allowing him to intervene.¶34 We analogize Thanos’s status to that of an unmarried fatherseeking to establish parental rights to his child in the face ofthe mother’s intent to have the child adopted. See
Utah CodeAnn. § 78-30-4.14(2). Section 78-30-4.14(2) sets out variousrequirements that an unmarried biological father9 must complywith in order to establish his paternity. See id. When theadoption involves a child under six months of age, section 78-30-4.14(2) establishes specific acts, including initiating apaternity action, that the father must take prior to the motherexecuting her consent to the adoption. See id. § 78-30-4.14(2)(b). The mother’s consent to adoption can be executed aslittle as twenty-four hours after the child’s birth. See id.§ 78-30-4.19 (2002). A father who fails to comply with therequirements of section 78-30-14(2) has no standing to object tothe adoption and permanently loses his parental rights to thechild. See id. § 78-30-4.14(5); In re adoption of B.B.D., 1999UT 70,¶¶10-12, 984 P.2d 967 (“Under
Utah law, ‘an unmarriedbiological father has an inchoate interest that acquiresconstitutional protection only when he demonstrates a timely andfull commitment to the responsibilities of parenthood, bothduring pregnancy and upon the child’s birth.'” (quoting Utah CodeAnn. § 78-30-4.12(2)(e) (1996)).¶35 By holding Thanos to a similar, if somewhat more generous,standard, we recognize that a husband is presumed to be the legalfather of a child born into his marriage. See
Utah Code Ann.§ 30-1-17.2(2) (Supp. 2005). In the vast majority of maritalbirths, the husband is also the natural, biological father of thechild. However, in the hopefully rare instance where a childborn into a marriage is fathered by another man, the husband isnevertheless deemed the father of the child, with all concomitantrights and responsibilities, unless and until his paternity issuccessfully challenged under the Utah Uniform Parentage Act.10We express no opinion on the separate question of whetherSchoolcraft standing, once lost, can ever be regained due tochanged circumstances.11We recognize that Mother asserted Father’s non-paternityof Z.P. in her answer and in a simultaneous motion to show cause,(continued…)20040677-CA 13See id. §§ 78-45g-101 to -902 (Supp. 2005); id. § 30-1-17.2(4)(“A presumption of paternity established under this section mayonly be rebutted in accordance with Section 78-45g-607.”).Essentially, an illegitimate child born into a marriage isimmediately subject to a de facto adoption by the mother’shusband. We see no reason why a man who chooses to procreatewith the wife of another should be granted significant latitudeto challenge the husband’s de facto adoption, while one who failsto timely establish his paternity of a child born to an unmarriedwoman is permanently barred from doing so upon the mother’s mereconsent to the child’s adoption.¶36 Like any other unmarried father who fails to perfect hisinchoate parental rights, Thanos lost his standing to contestZ.P.’s paternity sometime during the early months of Z.P.’s life.Despite the evolving circumstances of this case, we conclude thatsince that time Thanos has not met, and to our knowledge stilldoes not meet, the Schoolcraft factors.10 Accordingly, the trialcourt erred in granting Thanos’s January 2001 motion to interveneand his subsequent motion for summary judgment establishing hispaternity of Z.P.II. Z.P.’s Paternity and Custody¶37 Our determination that it was error to allow Thanos tointervene in the Pearsons’ divorce action has inescapableconsequences for the trial court’s paternity and custody orders.With Thanos improperly joined in this litigation, the trialcourt’s consideration of Thanos’s motion for summary judgment toestablish paternity, and the genetic evidence in support thereof,was error. And, of course, the court’s May 2003 order grantingThanos’s summary judgment on the issue of his fatherhood of Z.P.was also erroneous and is reversed.¶38 With Thanos and all of his various pleadings and evidenceout of the litigation, Father remains the presumed and legalfather of Z.P. See
Utah Code Ann. § 30-1-17.2(2). Accordingly,the trial court erred in applying the parental presumption infavor of Mother11 and against Father in making its ultimate11(…continued)and that she could have litigated Z.P.’s paternity on identicalevidence in Thanos’s absence. Regardless of this possibility,Z.P.’s paternity was actually litigated almost exclusivelybetween Father and Thanos, an improper party. We rule todaysolely on the issues before us, and neither Mother nor Thanosargue on appeal that Mother’s pleadings provide an independentground to affirm the trial court’s paternity finding.More importantly, for all of the reasons set forth in thisopinion, Mother would also appear to be barred from challengingZ.P.’s paternity on the facts and posture of this case. She toowould lack Schoolcraft standing, see In re J.W.F., 799 P.2d 710,713 (
Utah 1990), and her actions prior to the initiation ofdivorce proceedings might support a determination that herchallenge was barred by equitable estoppel. See Dahl Inv. Co. v.Hughes, 2004 UT App 391,¶14, 101 P.3d 830 (listing elements ofequitable estoppel); see also Kristen D. v. Stephen D., 719N.Y.S.2d 771, 772-73 (App. Div. 2001) (“Courts have longrecognized the availability of the doctrine of equitable estoppelas a defense in a paternity proceeding.” (citations omitted));Richard W. v. Roberta Y., 658 N.Y.S.2d 506 (App. Div. 1997)(applying equitable estoppel principles to bar a paternitychallenge). For the same reasons, Father would also appear to bebarred from seeking to disestablish paternity of Z.P. should heever choose to do so.We express no opinion on whether Z.P. himself, the state of
Utah, or any other person or entity could ever challenge Father’spaternity, or the circumstances that might permit such achallenge.20040677-CA 14custody decision regarding Z.P. Other aspects of the trialcourt’s supplemental decree of divorce also rely, explicitly orimplicitly, on Thanos’s paternity of Z.P., and these aspects ofthe final order are also erroneous and must be revisited asappropriate.¶39 We reverse the trial court’s orders below to the extent thatthey rely on Thanos’s paternity of Z.P., and remand this matterto the trial court for the issuance of a new custody order,taking into account Father’s legal paternity of Z.P.CONCLUSION¶40 Thanos should not have been allowed to intervene in thismatter due to a lack of Schoolcraft standing. Accordingly, thepresumption of Father’s legitimate parentage of Z.P. remains20040677-CA 15unrebutted, and Father remains the legal parent of Z.P. Thetrial court’s supplemental decree of divorce, as well as anyother order entered below, is reversed to the extent that itconflicts with Father’s legal status as Z.P.’s parent or waspremised on Thanos’s paternity. This matter is remanded forfurther proceedings consistent with this opinion.______________________________William A. Thorne Jr., Judge—–¶41 WE CONCUR:______________________________Pamela T. Greenwood,Associate Presiding Judge______________________________Gregory K. Orme, Judge 

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