Chapter 16 - § 16.2 • ALLOCATION OF PARENTAL RESPONSIBILITIES: GRANDPARENTS, KIN, AND "PSYCHOLOGICAL PARENTS"

• Jurisdiction: Colorado

§ 16.2 • ALLOCATION OF PARENTAL RESPONSIBILITIES: GRANDPARENTS, KIN, AND "PSYCHOLOGICAL PARENTS"

§ 16.2.1—Standing to Obtain the Allocation of Parental Responsibilities

A grandparent or other adult acting as a parent, sometimes called a "psychological parent," has standing to pursue the allocation of parental responsibilities under two circumstances: (1) if he or she has had physical care of the child for more than 182 days and has initiated an APR action within 182 days of losing physical care of the child; or (2) the child is not in the physical care of either of his or her parents.³¹ These two conditions for standing are separate, and each provides an independent basis for standing.³²

Whether a non-parent 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 non-parent and the child and the parent(s) and child. The essential issue for standing is physical care, not whether the child formed a bond with the caregiver.³³ The non-parent's physical care need not be uninterrupted or exclusive of the parent's care.³⁴ 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."³⁵ The actual contact need not be exclusive or continuous.³⁶ The non-parent need not show that the parents voluntarily relinquished the care of the child or consented to the circumstances under which the non-parent had care and control of the child.³⁷

§ 16.2.2—"Best Interests" Standard Applies

Once standing has been established, the "best interests of the child" standard of C.R.S. § 14-10-124(1.5) controls how much time or decision-making authority can be allocated to the grandparent or other non-parent in an APR action. The Colorado Supreme Court in In re Custody of C.C.R.S.³⁸ examined whether the application of the best interests of the child standard, without a showing of parental unfitness, is the appropriate test for resolving a custodial dispute between a natural parent and psychological parents under C.R.S. § 14-10-123. C.C.R.S. was an adoption case where the relinquishing biological mother changed her mind about giving up her son for adoption six months after placing the child at birth with the prospective adoptive parents. The court held that "the best interests of the child standard is the paramount consideration in a custodial dispute between a natural parent and the psychological parents."³⁹

In a dispute between parents, the best-interests-of-the-child standard allows the court to consider evidence of domestic violence/abuse. Similarly, when a grandparent seeks parental responsibilities for his or her grandchild, the court "shall consider any credible evidence of the grandparent's past conduct of child abuse or neglect."⁴⁰

Practice Pointer
The best interests standard as discussed above is the general standard to be applied in an APR action. The practitioner should be aware, however, that this standard changes significantly in the event the subject grandchild is alleged to have Native American heritage. Similarly, there are critical procedural steps that are required when a child is alleged to have Native American heritage. If there is information that a subject child might have Native American heritage, the practitioner should take time to review § 16.2.4.

§ 16.2.3—Presumptions in Favor of Biological Parents

In determining a custodial dispute between a parent and a non-parent, Colorado courts recognize a presumption that the biological parent has a first and prior right to the custody of his or her child.⁴¹ Colorado courts also recognize a presumption that a fit parent acts in the best interests of his or her children.⁴²

The presumption may be rebutted by evidence establishing that the welfare of the child — that is, the best interests of the child — is better served by granting custody to a non-parent.⁴³ It is not necessary for the non-parent to prove that the parent is unfit, but, rather, that it is in the best interests of the child to stay with the non-parent.⁴⁴ Due process does not require a showing of parental unfitness where there is no termination of parental rights.⁴⁵ The...