Psychological Parent: When can a non-married, non-biological Dad establish Paternal Rights?
Monday, June 7th, 2010
Can a non-married man who is not the biological father of a child, establish the legal rights of a father? The answer in Colorado is yes, under certain circumstances.
Lets look at the facts from a recent Court of Appeals Case; In Re Parental Responsibilities of A.D., 09CA0756 (Colo. app. 4-1-2010):
Petitioner and Mother had a relationship that ended in 1999. Mother moved away and gave birth to the child in question in August of 2001. Mother and Petitioner reconciled and moved back in together when the child was 11 months old. They lived together as a family until January of 2007 when Mother broke off the relationship and moved in with her current husband. The child, then six years old, spent several overnights per week with the petitioner for approximately one year. In February of 2008, the Mother discontinued the child's contact with petitioner.
The Petitioner brought an action for Allocation of Parental Responsibilities, stating that he was both the presumed natural Father and that he also had standing to bring the case due to his contact and care of the child following the parties break up.
At trial the Petitioner admitted that he was not the biological father of the child. The alleged biological father was notified of the action but lived out of state and chose not to participate.
1. Presumed Natural Father
You may have heard that if you are married when a child is born to your wife, that, as the husband, you are presumed to be the natural Father. However there is also a lesser known provision that applies to a non-married male partner. Section 19-4-105(1)(d)of the Colorado Revised Statutes states " a man will be presumed to be the natural father of a child if he received the child, while a minor, into his home and openly held the child out as his natural child." This presumption may only be rebutted by clear and convincing evidence. The law also states that the presumption is rebutted by a court decree establishing paternity of the child by another man.
In this case the only other potential father was notified but chose not to participate in the action. The Appellate Court held that the Petitioner's admission that he is not the biological father does NOT NECESSARILY rebut the presumption that he is the natural parent when there is no Court Decree that establishes the paternity of another man.
2. Psychological Parent
There was a second legal argument in In Re Allocation of Parental Responsibilities of A.D. that the Court did not address since they found that the Petitioner was the presumed natural father and therefore had the legal rights of a father.
The second argument relates to establishing a relationship as a psychological parent. Colorado Revised Statutes, section 14-10-123(1)(c) states that a person other than a parent may bring an Allocation of Parental Responsibilities action if they have physical care of a child for six months or more, if the action is commenced within six months of the termination of such physical care.
In this case, the Petitioner had physical care of the child several overnights a week for a year following the break up. The Trial Court had found, by clear and convincing evidence, that Petitioner had standing to bring the Allocation action and that he and A.D. shared a preexisting bond of love and affection, that he was A.D.'s psychological parent, and that the child would face possible trauma if she lost all contact with him.
The Appellate Court did not rule on this issue, however, it does form the basis for a strong argument that, even if the Petitioner had not been found to be the presumed natural parent, that under 14-10-123(1)(c) he could establish parental rights. It is important to note that this section only applies because he spent significant independent time with the child after the couple broke up. If the Mother had cut off the relationship immediately when she left, this section would not have applied.
The point remains that the Colorado Courts are going to look at the best interests of the child and if there has been a parental relationship established over a significant period of time, the Court will look for ways to retain that relationship because it is in the best interests of the child. The statutes referenced above were both ways for the Court to give the non-biological but clearly the psychological parent legal rights.
If you would like to know more about how this case relates to your circumstances, feel free to call Matthews and Matthews at 303-329-3802 and ask for Leslie Matthews.
Lets look at the facts from a recent Court of Appeals Case; In Re Parental Responsibilities of A.D., 09CA0756 (Colo. app. 4-1-2010):
Petitioner and Mother had a relationship that ended in 1999. Mother moved away and gave birth to the child in question in August of 2001. Mother and Petitioner reconciled and moved back in together when the child was 11 months old. They lived together as a family until January of 2007 when Mother broke off the relationship and moved in with her current husband. The child, then six years old, spent several overnights per week with the petitioner for approximately one year. In February of 2008, the Mother discontinued the child's contact with petitioner.
The Petitioner brought an action for Allocation of Parental Responsibilities, stating that he was both the presumed natural Father and that he also had standing to bring the case due to his contact and care of the child following the parties break up.
At trial the Petitioner admitted that he was not the biological father of the child. The alleged biological father was notified of the action but lived out of state and chose not to participate.
1. Presumed Natural Father
You may have heard that if you are married when a child is born to your wife, that, as the husband, you are presumed to be the natural Father. However there is also a lesser known provision that applies to a non-married male partner. Section 19-4-105(1)(d)of the Colorado Revised Statutes states " a man will be presumed to be the natural father of a child if he received the child, while a minor, into his home and openly held the child out as his natural child." This presumption may only be rebutted by clear and convincing evidence. The law also states that the presumption is rebutted by a court decree establishing paternity of the child by another man.
In this case the only other potential father was notified but chose not to participate in the action. The Appellate Court held that the Petitioner's admission that he is not the biological father does NOT NECESSARILY rebut the presumption that he is the natural parent when there is no Court Decree that establishes the paternity of another man.
2. Psychological Parent
There was a second legal argument in In Re Allocation of Parental Responsibilities of A.D. that the Court did not address since they found that the Petitioner was the presumed natural father and therefore had the legal rights of a father.
The second argument relates to establishing a relationship as a psychological parent. Colorado Revised Statutes, section 14-10-123(1)(c) states that a person other than a parent may bring an Allocation of Parental Responsibilities action if they have physical care of a child for six months or more, if the action is commenced within six months of the termination of such physical care.
In this case, the Petitioner had physical care of the child several overnights a week for a year following the break up. The Trial Court had found, by clear and convincing evidence, that Petitioner had standing to bring the Allocation action and that he and A.D. shared a preexisting bond of love and affection, that he was A.D.'s psychological parent, and that the child would face possible trauma if she lost all contact with him.
The Appellate Court did not rule on this issue, however, it does form the basis for a strong argument that, even if the Petitioner had not been found to be the presumed natural parent, that under 14-10-123(1)(c) he could establish parental rights. It is important to note that this section only applies because he spent significant independent time with the child after the couple broke up. If the Mother had cut off the relationship immediately when she left, this section would not have applied.
The point remains that the Colorado Courts are going to look at the best interests of the child and if there has been a parental relationship established over a significant period of time, the Court will look for ways to retain that relationship because it is in the best interests of the child. The statutes referenced above were both ways for the Court to give the non-biological but clearly the psychological parent legal rights.
If you would like to know more about how this case relates to your circumstances, feel free to call Matthews and Matthews at 303-329-3802 and ask for Leslie Matthews.
