By: Jessica A. Bryant
Often children have interactions and bonds with more individuals than just their biological parents. For example, they may have step-parents, grandparents, or other relatives or family friends that have helped with their care. If tensions arise between these caregivers and the biological parents questions can arise about what, if any, rights these individuals may have to continuing contact with the children. Under Colorado custody law, there are several circumstances under which non-biological parents may be entitled to custody rights over the children.
The first question is whether a non-biological parent has the legal right, known as “standing,” to file for custody (see C.R.S. 14-10-123). If the person is determined to have standing to file such a request, the second question is the likelihood of the person being granted custody over the parents’ objections.
Under Colorado law, there are two main bases under which a non-biological parent may have standing to seek custody of a child:
- If the child is not in the physical care of either parent
While physical care is not specifically defined under Colorado law, when non-biological parents file for custody, courts are required look at the nature, frequency and duration of contact between the child and the biological parents and the child and the non-biological parents. For example, if the child is dropped off at his/her grandparents’ house for a weekend visit while the parents go on a short vacation, such would likely not meet the standard of the child being in the physical care of non-parents because it is a short-term arrangement with a defined end and the grandparents are acting as babysitters for the parents. However, if the parents drop the child off at the grandparents’ house without any defined reason, are gone for an extended period of time, and have no contact with the child, that would be more likely to meet the standard of the child being the physical care of third parties. There is no bright-line rule as to what will and will not be considered, it is up to the judge’s discretion at the time the case is heard.
Additionally, under this standard, a person does not have to actually have the child in his or her care to seek custody, so long as the child is not in the care of either parent. Any third party could file for custody (though, if the person has had little to no contact with the child it is highly unlikely the court would find it best for that individual to have custody of the child). For example, if mom and dad left the child in the care of a neighbor that had an unstable living environment and little prior relationship with the child, and the grandparents, who had significant contact with the child in the past heard about such, the grandparents could file a petition seeking custody of the child. The neighbor could too, though the outcome for that neighbor, given the situation, would not likely be positive.
2. If the child has been in that third party’s physical care for more than six months and, if the child is no longer in that person’s physical care, and that the person files a petition seeking custody within six months of the physical care ending
The analysis of physical care is the same as stated above. Notably, physical care does not have to be exclusive. This situation is most commonly used in cases where a child has been with relatives, which is followed by one of the parents taking the child back. Another potential situation can arise with step-parents. If the step-parent had been living with the biological parent and actively assisting with the care of the child for more than six months, and then the relationship with the biological parent ended, the step-parent could seek custody over the child. However, Denver custody attorneys know that in such a situation the step-parent is likely going to have to establish that he or she has become a “psychological parent” to the child. Additionally, questions will be raised as to the role or contact the child has with the other biological parent in terms of whether he or she is in the picture.
Once it is determined that a third party has standing to file for custody of the child, the next question relates to the analysis the court will use is deciding how to allocate custody. The standard is not the same as a custody dispute between two biological parents because biological parents have a Constitutional right to the care and control of their children. Thus, in a Colorado custody proceeding with a non-biological parent, the court has to presume the biological parents are acting in the best interests of the children. The non-biological parent can then rebut this presumption by clear and convincing evidence that the biological parent is not acting in the child’s best interests and that their requests are in the child’s best interests. Often this may take a court appointed expert to determine, psychologically, what custody allocation is best for the child. It also depends on the involvement the biological parents had in the child’s life as compared to the involvement of the non-biological parent, as well as the fitness of the biological parents. Ultimately, third party custody cases in Colorado require an analysis of the specific facts by the judge, who then makes a discretionary decision as to what is in the child’s best interests.