Constitutional Issues and Legal Standards in Parental Responsibility Matters
| Publication year | 2013 |
| Pages | 33 |
By Melody K. Fuller
Family Law articles are sponsored by the CBA Family Law Section to provide information to family law practitioners. Articles focus on practice tips and discussions of current issues within the realm of family law.
Coordinating Editors
Patricia A. Cooper, Denver, of the Law Office of Stephen J. Harhai —(303) 329-8300, tcooper@harhai.com; Meredith Patrick Cord, Colorado Springs, of Johnson & Cord, PC—(719) 471-4034, mpc@johnsoncord.com
About the Author
Melody K. Fuller is a solo practitioner in Boulder who limits her practice to family law—melodyfuller@1526spruce.com.
This article addresses parental constitutional rights and the standing of nonparents to bring a proceeding for an allocation of parental responsibilities (APR) or visitation. The article also discusses the substantive procedures involved in such actions, including standing requirements, presumptions in favor of legal and biological parents, and burdens of proof and standards of evidence to be applied. Finally, the article addresses constitutional rights of parents in APR modification matters involving nonparents.
The increasing number of custody cases involving children living with someone other than a parent is reflected in the proliferation of appellate cases addressing parental rights outside the child welfare system. This article explores the rights of parents and third-party caregivers in allocation of parental responsibilities (APR) matters and the recent evolution of Colorado law in this area.
Colorado statutes provide that certain non parents may seek an APR or grandparent visitation, but standing to bring such an action is limited to protect the inherent constitutional rights of biological parents. Additionally, non parents face greater burdens of going forward with evidence and are subject to a higher burden of proof. Parents are entitled to presumptions that they make decisions in the best interests of their children. These protections apply in all stages of Title 14 APR proceedings, from the investigatory phase through subsequent modifications. They also apply in guardianship and grandparent visitation cases and govern standing to bring an action, the standards and burden of proof to be applied, and the modifications of such orders.
Troxel and the History of Constitutional Rights of Natural Parents
The liberty interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental interests.[1] In Stanley v. Illinois, the U.S. Supreme Court recognized that the substantive due process required by the Fourteenth Amendment protects against government interference with a parent’s fundamental rights.[2] Parham v. J.R. involved the procedures the state of Georgia provided for parents seeking to institutionalize their children in the state’s mental hospital system.[3] In Parham, the Court further developed and refined a presumption that fit parents act in their children’s best interests.[4]
In the landmark case of Troxel v. Granville, the U.S. Supreme Court provided guidance as to how trial courts were to apply Fourteenth Amendment substantive due process rights of natural parents in contests for custody or visitation with nonparents.[5] Troxel involved a Washington statute that allowed courts to order visitation rights for any person whenever visitation might serve the best interests of the child. The Supreme Court struck down the statute and found that it violated the substantive due process rights of parents for allowing such unfettered interference with a parent’s right to decide what is in his or her child’s best interests.
Noting that all fifty states have statutes that provide for grandparent visitation in some form, the Court held that as long as a parent adequately cares for his or her children—that is, is fit—normally, there will be no reason for the state to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.[6] Citing a long line of cases the Court described as "extensive precedent, " the Troxel decision affirmed that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.[7]
Colorado’s grandparent visitation statute was found to pass constitutional muster in In re Adoption of C.A.[8] C.A. involved a child’s paternal grandparents who requested grandparent visitation from the child’s adoptive parents, a maternal aunt and uncle with whom the child lived both before and after the biological mother’s death. C.A. established the standard for the trial court’s determination of a request for grandparent visitation under CRS § 19-1-117. To effectuate the statutory intention consistent with Troxel, the Colorado Supreme Court found that there is a rebuttable presumption in favor of the parental visitation determination. To rebut this presumption, grandparents must establish, through clear and convincing evidence, that the parental determination is not in the child’s best interests or that the parent is unfit to make the visitation determination.[9] A trial court that grants grandparent visitation over parental opposition must make findings of fact and conclusions of law identifying those "special factors" on which it relies.[10]
Standing for APR
Colorado law provides that nonparents may seek an APR pursuant to CRS § 14-10-123(1)(b) and (c). A relative, grandparent, or other adult acting as a parent (sometimes called a psychological parent) has standing to pursue the APR under two circumstances: (1) if he or she has had physical care of the child for more than six months and has initiated an APR action within six months of losing physical care of the child; or (2) the child is not in the physical care of either of his or her parents.[11] These two conditions for standing are separate, and each provides an independent basis for standing.[12]
Whether a nonparent has had a child in his or her physical care is explored in a series of cases that examine the nature, duration, and frequency of the contact between the nonparent and the child and the parent(s) and child, and the supervision and control the parent exercises over the nonparent’s care of the child.[13] Physical care is not defined by statute, but the Colorado Supreme Court has relied on the plain and ordinary meaning of "care."[14] The nonparent’s physical care need not be uninterrupted or exclusive of the parent’s care.[15]
The court should consider the amount of time a child has spent in the actual, physical possession of a non-parent and the psychological bonds non-parents develop with children who have been in their physical possession and control for a significant period of time.[16]
The recent Colorado Court of Appeals case In re the Parental Responsibilities of D.T. reiterates that the nature and frequency of contact is key to a CRS § 14-10-123(1)(c) standing inquiry and emphasizes that the trial court should consider whether the nonparent is providing care under a parent’s direction and supervision.[17]
A nonparent need not show that the parents voluntarily relinquished the care of the child or consented to the circumstances under which the nonparent had care and control of the child.[18] In C.C.R.S., a pre-Troxel case, a relinquishing biological mother changed her mind about giving her son up for adoption six months after placing the child with the prospective adoptive parents.[19] The Colorado Supreme Court, applying a literal definition of physical custody and taking into account the amount of time the child spent in the actual physical possession of the nonparents, found that the adoptive parents had standing to petition for an APR.[20]
In the recent Colorado Supreme Court case In the Interest of Child B.B.O., the Court reversed an unpublished decision from the Court of Appeals that construed CRS § 14-10-123(1)(b) and (c) as requiring that, to establish standing to petition for an APR, a nonparent must show that the child’s parents voluntarily permitted the nonparent to share in or assume the parents’ responsibility for the child’s care.[21] Relying on the plain language of the statute, the Supreme Court held that there was no statutory basis for reading a consent requirement into the concept of care for standing purposes under either § 123(1)(b) or (c); therefore, a nonparent does not have to prove consent of the parents. In so holding, the Court rejected the rationale of C.R.C., a post-Troxel Court of Appeals case that held that parental consent was required for a nonparent to establish standing to petition for an APR.[22]
The post-Troxel case of E.L.M.C. was a contest between a birth mother and her former lesbian partner who sought an APR.[23] The partner, having lived as a parent with the child for nine years, was deemed to be a psychological parent who had standing under CRS § 14-10-123. The court rejected the biological mother’s claim that the physical care must be exclusive or that she must be found to be unfit before her parental authority could be interfered with by the state.[24] In situations where parents have not been found unfit, a court may award parental responsibilities to the nonparent over the parent(s)’ objection once standing prerequisites are met.[25]
Colorado appellate courts have not directly addressed whether there must be a finding that the nonparent is a psychological parent for the nonparent to meet the physical care requirement for standing under § 123(1)(c).[26] Nonetheless, E.L.M.C. and C.C.R.S. recognize that consideration of nonparent standing under § 123(1)(c) includes consideration of the quality of the relationship...
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