Who’s Their Daddy: Navigating Allocation of Parental Responsibilities and Paternity Actions
| Jurisdiction | United States,Federal |
| Citation | Vol. 45 No. 5 Pg. 29 |
| Pages | 29 |
| Publication year | 2016 |
Articles Family Law
Who’s Their Daddy: Navigating Allocation of Parental Responsibilities and Paternity Actions
By Peter Franklin, Hannah Jannicelli Westmont.
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-(719) 452-5343, meredith.patrickcord@judicial.state. co. us
This article reviews the legal standards and case law governing paternity actions, discusses paternity action procedures, and explains the differences between actions for allocation of parental responsibilities under Title 14 and paternity actions under Title 19. Practice pointers are included.
In the United States 40% of all children are born to unmarried parents.[1] When these parental relationships deteriorate, practitioners must carefully consider whether to advise their clients to pursue paternity cases in juvenile court, under CRS Title 19, or, alternatively, actions for allocation of parental responsibility in district court, under CRS Title 14.
Title 19: Establishing the Parent-Child Relationship
The Colorado Uniform Parentage Act (Act) is part of the Children�s Code, found at CRS �� 19-4-101 et seq. The purpose of the Act is twofold: to establish the parent-child relationship, and to protect that relationship.[2] The statutory provisions set forth different standards for establishing the mother-child relationship versus the father-child relationship.
Establishing Maternity
The mother-child relationship may be established pursuant to CRS � 19-4-104, which states that a woman may establish maternity by proving that she gave birth to the child at issue. This is often accomplished through genetic testing, and genetic test results are sufficient for entry of an order for summary judgment.[3] As one can imagine, the vast majority of women are able to prove maternity through genetic testing results. However, non-biological mothers, such as those who used assisted reproduction, or mothers who were the same-sex partners of biological mothers, are unable to prove their maternity through genetic testing. If a woman is unable to prove that she gave birth to the child, she may also establish her maternity through CRS � 19-4-105 (presumption of paternity) or CRS � 19-4-106 (assisted reproduction).[4]
A woman who is a same-sex partner of the biological mother must establish her maternity through CRS § 19-4-105, the same statute by which the father-child relationship is established. CRS § 19-4-125 provides that in a maternity suit against a purported mother, where it is appropriate in the context, "the word ‘father’ shall mean ‘mother.’" A child may have two mothers under the Act-a biological mother and a presumptive mother-as confirmed by the court of appeals in In re Parental Responsibilities of AR.L.[5] In AR.L the court found that nothing in the Act "prohibits a child from having two same-sex parents. Rather, the plain language of the [Act] is gender-neutral and specifically allows the terms �father� and �mother� to be used interchangeably, where practical."[6]
A mother who uses assisted reproduction may establish her maternity through CRS § 19-4-106. However, if a mother does not follow the steps enumerated in CRS § 19-4-106, complications may arise. For example, in In the Interest of S.N.V., the wife was unable to establish her maternity through CRS § 19-4-106 because the husband inseminated the biological mother through intercourse without either a signed written agreement or the supervision of a healthcare professional.[7] Thus, regardless of both the husband’s and wife’s assertions that the biological mother’s insemination was the result of an unwritten agreement for the birth mother to serve as a surrogate, the wife could not establish maternity through CRS § 19-4-106, and instead was restricted to C.R.S. § 19-4-105.
Establishing Paternity
The establishment of paternity is governed by CRS § 19-4-105, which provides that a man is presumed to be the "natural father of a child" if one of the following is true:
• He and the child’s natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated.
• Before the child’s birth, he and the child’s natural mother were married or attempted to marry each other.
• After the child’s birth, he and the child’s natural mother married, or attempted to marry, and he acknowledged his paternity of the child in a writing filed with the court or registrar of vital statistics; or, with his consent, he is named as the child’s father on the child’s birth certificate; or he is obligated to support the child under a written voluntary promise or by court order or by an administrative order issued pursuant to CRS § 26-13.5-110.
• While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child.
• He acknowledges his paternity of the child in a writing filed with the court or registrar of vital statistics, and the mother does not dispute the acknowledgment within a reasonable time after being informed thereof, in a writing filed with the court or registrar of vital statistics, if such acknowledgment did not previously become a legal finding pursuant to CRS § 19-4-105(2)(b). If another man is presumed under CRS § 19-4-105 to be the child’s father, an acknowledgment may be effected only with the written consent of the presumed father or after the presumption has been rebutted.
Under CRS § 19-4-105(2), once a presumption of paternity is established, it may be rebutted only by clear and convincing evidence.[8]
However, "if two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls."[9] In determining which of the conflicting presumptions should control, the court must consider all pertinent factors including, but not limited to, the following:
(I) The length of time between the proceeding to determine parentage and the time that the presumed father was placed on notice that he might not be the genetic father;
(II) The length of time during which the presumed father has assumed the role of father of the child;
(III) The facts surrounding the presumed father’s discovery of his possible nonpaternity;
(IV) The nature of the father-child relationship;
(V) The age of the child;
(VI) The relationship of the child to any presumed father or fathers;
(VII) The extent to which the passage of time reduces the chances of establishing the paternity of another man and a child support obligation in favor of the child; and
(VIII) Any other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed father or fathers or the chance of other harm to the child.[10]
When considering these factors, the court must make a fact-intensive inquiry, and all the facts considered should bear on the child’s best interests.[11] The requirement that the child’s best interests be the focus arises from the observation that...
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