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When May Non-parents Petition for Parental Responsibility in Colorado?

big-sister-first-day-of-school-1115880-m.jpgIn Colorado and other states within the United States, parents are deemed to have fundamental rights related to their child’s care, guaranteed by the Constitution. However, parental rights may be trumped by a child’s best interest. For example, there are circumstances in which a child’s best interest may be better met by a nonparent than parent. A non-parent may petition the court for an allocation of parental responsibility only if certain conditions are met.

In a 2012 case, the Colorado Supreme Court considered the question of a minor whose parents divorced five months before she was born and who had a half-sister on her father’s side. The minor lived outside Colorado with her mother until she was 3 years old when the father asked that she live with him and the half-sister.

The minor lived with the father and half-sister in Colorado for six years until the father died in 2008. At that point, she continued to live with her half-sister. For the first two years of living with her father, her mother visited regularly. But for the last several years before the father died, the mother had no physical contact, only telephone conversations and correspondence.

Two months after their father died, the half-sister petitioned the court requesting an allocation of parental responsibilities. The child and family investigator appointed by the court recommended she have primary parental responsibility for the minor with the mother to have “liberal parenting time.”

The mother moved for summary judgment, arguing that the half-sister did not have standing (the right to bring the petition for allocation of parental responsibility). The trial court found she did have standing because the minor was in her care and not in the care of the parents. The mother had implicitly consented to the half-sister caring for her. The trial court ruled in accordance with the recommendation of the investigator that it was in the child’s best interest to remain under the care of the half-sister.

The mother appealed both of the court’s determinations. She argued that she had not consented to the half-sister taking care of the minor without the father’s presence. The court of appeals ruled that the way in which a child comes to be cared for by a nonparent was relevant to the issue of standing. It further ruled that a nonparent like the half-sister had to show the child’s parents voluntarily permitted a nonparent to assume responsibility for the child.

The half-sister appealed, arguing that the trial court had determined that allocating her primary parental responsibility was in the child’s best interests and this issue was not considered by the appellate court. The Colorado Supreme Court reviewed the case.

The higher court explained that a non-parent can seek an allocation of parental responsibilities in two relevant ways under Section 14-10-123: if a child is not physically cared for by the parents or if the nonparent has had physical care of the child for at least six months and asks for the allocation within 6 months after physical care has been terminated. A parent does not need to consent to a nonparent offering care for the nonparent to establish his or her standing to petition the court for an allocation of parental responsibility.

The Court of Appeals had relied on a prior case related to the fundamental rights of parents and the U.S. Supreme Court’s emphasis on parental rights in a case involving Washington’s family law statute. The Colorado Supreme Court explained that the appellate court had not given the right weight to the holding of the case. Because children develop psychological bonds with caregivers, those relationships need to be considered in determining a child’s best interest.

In this case, the half-sister and father had cared for the minor for six years and even after the death of the father until the half-sister petitioner for an allocation of parental responsibilities. The parties disagreed about whether the mother had agreed to let the half-sister parent, but the half-sister had in fact physically cared for the minor. Therefore she had standing and the case was reversed and sent back to the court of appeals for further consideration.

If you are considering divorce, a knowledgeable family law attorney can help you figure out what the new maintenance law may mean for you. Contact the experienced Denver family law attorneys at Plog & Stein.