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14-10-123. Commencement of proceedings concerning allocation of parental responsibilities - jurisdiction - automatic temporary injunction - enforcement - definition.

Statute text

(1) A proceeding concerning the allocation of parental responsibilities is commenced in the district court or as otherwise provided by law:

(a) By a parent:

(I) By filing a petition for dissolution or legal separation; or

(II) By filing a petition seeking the allocation of parental responsibilities with respect to a child in the county where the child is permanently resident or where the child is found; or

(b) By a person other than a parent, by filing a petition seeking the allocation of parental responsibilities for the child in the county where the child is permanently resident or where the child is found, but only if the child is not in the physical care of one of the child's parents;

(c) By a person other than a parent who has had the physical care of a child for a period of one hundred eighty-two days or more, if such action is commenced within one hundred eighty-two days after the termination of such physical care; or

(d) By a parent or person other than a parent who has been granted custody of a child or who has been allocated parental responsibilities through a juvenile court order entered pursuant to section 19-1-104 (6), C.R.S., by filing a certified copy of the juvenile court order in the county where the child is permanently resident. Such order shall be treated in the district court as any other decree issued in a proceeding concerning the allocation of parental responsibilities.

(1.5) (a) For purposes of this subsection (1.5) only, "child" means an unmarried individual who has not attained twenty-one years of age.

(b) The court may enter an order for allocation of parental responsibilities for a child, as defined in subsection (1.5)(a) of this section, and a determination of whether the child shall be reunified with a parent or parents, when the requirements of subsection (1) of this section are met, the order is in the child's best interests, and:

(I) The child has not attained twenty-one years of age;

(II) The child is residing with and dependent upon a caregiver; and

(III) A request is made for findings from the court to establish the child's eligibility for classification as a special immigrant juvenile pursuant to 8 U.S.C. sec. 1101 (a)(27)(J).

(c) If a request is made for findings from the court to establish the child's eligibility for classification as a special immigrant juvenile under federal law and the court determines that there is sufficient evidence to support the findings, the court shall enter an order, including factual findings and conclusions of law, determining that:

(I) The child has been placed under the custody of an individual appointed by the court pursuant to an order for allocation of parental responsibilities;

(II) Reunification of the child with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law; and

(III) It is not in the best interests of the child to be returned to the child's or parents' previous country of nationality or country of last habitual residence.

(2) Except for a proceeding concerning the allocation of parental responsibilities commenced pursuant to paragraph (d) of subsection (1) of this section, notice of a proceeding concerning the allocation of parental responsibilities shall be given to the child's parent, guardian, and custodian or person allocated parental responsibilities, who may appear and be heard and may file a responsive pleading. The court may, upon a showing of good cause, permit the intervention of other interested parties.

(2.5) Upon the filing of a petition pursuant to subsection (1) of this section, each party shall provide to the court, in the manner prescribed by the court, his or her social security number and the social security number of each child named in the petition.

(3) (a) Upon the filing of a petition concerning the allocation of parental responsibilities pursuant to this section and upon personal service of the petition and summons on a respondent or upon waiver and acceptance of service by a respondent, a temporary injunction shall be in effect against both parties:

(I) Enjoining each party from molesting or disturbing the peace of the other party;

(II) Restraining each party from removing a minor child who is the subject of the proceeding from the state without the consent of all other parties or an order of the court modifying the injunction; and

(III) Restraining each party, without at least fourteen days' advance notification and the written consent of all other parties or an order of the court modifying the injunction, from cancelling, modifying, terminating, or allowing to lapse for nonpayment of premiums a policy of health insurance or life insurance that provides coverage to a minor child who is the subject of the proceeding or that names the minor child as a beneficiary of a policy.

(b) The provisions of the temporary injunction shall be printed upon the summons and the petition. The temporary injunction shall be in effect upon personal service of the petition and summons on a respondent or upon waiver and acceptance of service by a respondent and shall remain in effect against each party until the court enters the final decree, dismisses the petition, or enters a further order modifying the injunction. A party may apply to the court for further temporary orders pursuant to section 14-10-125, an expanded temporary injunction, or modification or revocation of the temporary injunction.

(c) Notwithstanding the provisions of paragraphs (a) and (b) of this subsection (3), the temporary injunction described in this subsection (3) shall not apply to a proceeding concerning the allocation of parental responsibilities commenced pursuant to paragraph (d) of subsection (1) of this section or to a proceeding concerning the allocation of parental responsibilities commenced by a parent that is governed by the automatic temporary injunction pursuant to section 14-10-107 (4)(b).

(d) For purposes of enforcing the automatic temporary injunction that becomes effective in accordance with this subsection (3), if the respondent shows a duly authorized peace officer, as described in section 16-2.5-101, C.R.S., a copy of the petition and summons filed and issued pursuant to this section, or if the petitioner shows the peace officer a copy of the petition and summons filed and issued pursuant to this section together with a certified copy of the affidavit of service of process or a certified copy of the waiver and acceptance of service, and the peace officer has cause to believe that a violation of the part of the automatic temporary injunction that enjoins a party from molesting or disturbing the peace of the other party has occurred, the peace officer shall use every reasonable means to enforce that part of the injunction against the petitioner or respondent, as applicable. A peace officer shall not be held civilly or criminally liable for his or her actions pursuant to this subsection (3) if the peace officer acts in good faith and without malice.

History

Source: L. 71: R&RE, p. 529, 1. C.R.S. 1963: 46-1-23. L. 73: p. 554, 10. L. 97: Entire section amended, p. 515, 1, effective July 1. L. 98: Entire section amended, p. 1377, 3, effective February 1, 1999. L. 2010: (3) added, (HB 10-1097), ch. 39, p. 159, 2, effective August 15. L. 2011: (2.5) added, (SB 11-123), ch. 46, p. 119, 3, effective August 10. L. 2012: (1)(c) amended, (SB 12-175), ch. 208, p. 832, 29, effective July 1. L. 2019: (1.5) added, (HB 19-1042), ch. 55, p. 193, 5, effective March 28.

Annotations

Cross references: For procedure for intervention of other parties generally, see C.R.C.P. 24; for procedure in a custody proceeding, see 14-13-209.

Annotations

 

ANNOTATION

Annotations

Law reviews. For note, "The Puzzle of Jurisdiction in Child Custody Actions", see U. Colo. L. Rev. 541 (1966). For article, "Mediation of Contested Child Custody Disputes", see 11 Colo. Law. 336 (1982). For article, "The Role of the Guardian ad Litem in Custody and Visitation Disputes", see 17 Colo. Law. 1301 (1988). For article, "Custody Evaluations in Colorado", see 18 Colo. Law. 1523 (1989). For article, "Legal Protection of Children in Nontraditional Families", see 29 Colo. Law. 79 (Nov. 2000). For article, "Parental Rights and Responsibilities of Grandparents and Third Parties", see 30 Colo. Law. 63 (May 2001). For article, "The Constitutionality of Colorado's Grandparent Visitation and Third-Party Standing Statutes", see 32 Colo. Law. 51 (Feb. 2003). For article, "Securing the Nonparent's Place in a Child's Life Through Adoption and Adoption Alternatives", see 37 Colo. Law. 27 (Oct. 2008). For article, "Constitutional Issues and Legal Standards in Parental Responsibility Matters", see 42 Colo. Law. 33 (Jan. 2013). For article, "Who's Their Daddy: Navigating Allocation of Parental Responsibilities and Paternity Actions", see 45 Colo. Law. 29 (May 2016).

No jurisdiction. Colorado court lacks jurisdiction to hear a petition for custody filed by a parent when a child is not a permanent resident nor located in the state when the petition is filed. In re Barnes, 907 P.2d 679 (Colo. App. 1995).

This section permits the intervention of interested parties; it does not mandate that they be made parties. In re Trouth, 631 P.2d 1183 (Colo. App. 1981).

Court retains jurisdiction over child custody issues until the child reaches the age of emancipation. In re Hartley, 886 P.2d 665 (Colo. 1994).

Petition need not be incidental to dissolution of marriage. Petitions for legal custody do not have to be incidental to a dissolution of marriage proceeding for the district court to have jurisdiction. In re Davis, 656 P.2d 42 (Colo. App. 1982); In re E.L.M.C., 100 P.3d 546 (Colo. App. 2004).

Applications for parental responsibilities by a nonparent implicate the fundamental constitutional right to family autonomy and privacy, and a legislative enactment that infringes on a fundamental right is constitutionally permissible only if it is necessary to promote a compelling state interest and does so in the least restrictive manner possible. In re E.L.M.C., 100 P.3d 546 (Colo. App. 2004).

Subsection (1)(c) limits jurisdiction to the class of nonparents who may seek parental responsibilities to only those individuals who have had a recent or continuing role as a caretaker and thereby protects against undue interference with the parent-child relationship. In re E.L.M.C., 100 P.3d 546 (Colo. App. 2004).

Subsection (1)(c) is the legislature's recognition of psychological parenting, and a determination of "physical care" includes the amount of time a child has spent in the actual, physical possession of a nonparent and the psychological bonds nonparents develop with children who have been in their physical possession and control for a significant period of time and does not require that this be exclusive physical care; but the jurisdictional requirements of this paragraph (c), which creates standing for non-parents, must be applied narrowly. In re E.L.M.C., 100 P.3d 546 (Colo. App. 2004).

Nothing in subsection (1)(c) requires that a legal relationship exist between the nonparent and the child, but only that the nonparent had physical care of the child for at least six months. In re E.L.M.C., 100 P.3d 546 (Colo. App. 2004).

Parental consent is not necessary for a nonparent to establish standing under subsections (1)(b) and (1)(c). The plain language of the statute does not require parental consent to a nonparent caring for a child to satisfy the constitution. In re B.B.O., 2012 CO 40, 277 P.3d 818.

To establish standing, however, the nonparent must show that the natural parent or parents voluntarily relinquished custody of the child. The nonparent bears the burden of proving that the natural parent voluntarily permitted the nonparent to share in or assume the parent's responsibility to provide physical care to the child. In re C.R.C., 148 P.3d 458 (Colo. App. 2006).

Under any definition of psychological parent, emotional harm to a young child is intrinsic in the termination or significant curtailment of the child's relationship with the person who is the psychological parent. In re E.L.M.C., 100 P.3d 546 (Colo. App. 2004).

Once a petition under this section is certified to be determined as part of a pending dependency and neglect action under the Children's Code, dissolution-of-marriage statutes cease to apply. Instead, provisions of the Children's Code govern, in view of the differing policies behind the respective statutes. People in Interest of D.C., 851 P.2d 291 (Colo. App. 1993).

This section does not give standing to a person on the basis that he is a presumptive father under the Uniform Parentage Act. In re Ohr, 97 P.3d 354 (Colo. App. 2004).

Nonparents who had physical custody of child beginning immediately after his birth had standing to seek custody under this section where, in adopting subsection (1)(b), the general assembly intended that a literal meaning be applied to the term "physical custody" and did not intend to equate "physical custody" with either "legal custody" or the "parental right to continued physical or legal custody". Thus, in keeping with the overriding policy of promoting the best interests of children, Colorado has adhered to a liberalized view as to the standing of nonparents to commence and participate in custody proceedings. In re Custody of C.C.R.S., 872 P.2d 1337 (Colo. App. 1993), aff'd, 892 P.2d 246 (Colo. 1995).

To establish standing, however, the nonparent must show that the natural parent or parents voluntarily relinquished custody of the child. The nonparent bears the burden of proving that the natural parent voluntarily permitted the nonparent to share in or assume the parent's responsibility to provide physical care to the child. In re C.R.C., 148 P.3d 458 (Colo. App. 2006).

Person fitting criteria in subsection (1) of this section may qualify as an "appropriate party" within the meaning of 19-4-116. In re Ohr, 97 P.3d 354 (Colo. App. 2004).

To determine whether a nonparent had "physical care" and, thus, standing to seek allocation of parental responsibilities, courts should consider the nature, frequency, and duration of contacts between the child and the parent and between the child and the nonparent, including the amount of time the child has spent in the actual, physical possession of the nonparent and the parent, which physical care need not be uninterrupted or exclusive. In re L.F., 121 P.3d 267 (Colo. App. 2005).

The court should consider the manner in which a child came into the nonparent's physical possession in determining the threshold issue of whether the nonparent has standing under this section, and the nonparent must show that the natural parent voluntarily relinquished custody of the child. The nonparent bears the burden of proving that the natural parent voluntarily permitted the nonparent to share in or assume the parent's responsibility to provide physical care to the child. In re C.R.C., 148 P.3d 458 (Colo. App. 2006).

The existence of a bond between a caregiver and a child, or the lack of a bond between the parents and the child, where the parents continue to exercise their personal rights by directing the caregiver, is irrelevant to the determination of whether the caregiver had "physical care" of the child as required by subsection (1)(c). In re L.F., 121 P.3d 267 (Colo. App. 2005).

Granting standing under subsection (1)(c) to those who care for and nurture a child at the request of and under the ongoing direction and control of the parents could be disruptive of the parent-child relationship and implicate the parents' decision-making rights, regardless of whether the caregiver developed a bond with the child; it could also burden parents who continue to exercise their decision-making rights with the threat that those who provide care at their discretion and under their direction would be able to initiate emotionally and financially costly litigation. In re L.F., 121 P.3d 267 (Colo. App. 2005).

Nonparent did not have physical care of the child for purposes of standing to seek parental rights where nonparent's care was provided at mother's direction and under mother's supervision. Despite child's frequent overnights with the nonparent, mother acted as the child's parent with the nonparent serving as a mentor to the young mother and a grandmother-like figure to the child. In re D.T., 2012 COA 142, 292 P.3d 1120.

Subsection (1)(b) creates a basis for standing that is independent of subsection (1)(c), and, because it was not disputed that the child was in the care of her grandmother, stepfather met the requirements of subsection (1)(b). Based on the plain language of the statute, stepfather was eligible to bring the action even though child was not in his physical care. In re K.M.B., 80 P.3d 914 (Colo. App. 2003).

Nothing within the plain language of either subsection (1)(b) or (1)(c) requires the two subsections to be applied together or engrafts the physical care requirement imposed in the latter subsection upon nonparents who seek standing under the former subsection. By its terms, subsection (1)(b) establishes that any nonparent has standing as long as the child is not in the physical care of a parent. In re K.M.B., 80 P.3d 914 (Colo. App. 2003).

Both subsection (1)(b) and subsection (1)(c) are limited by the requirement that the biological parent consent or acquiesce in the transfer of physical care to the party seeking standing. Both subsections require volition on the part of the biological parents. In re C.R.C., 148 P.3d 458 (Colo. App. 2006).

Proof that the nonparent had become the psychological parent of the child is not a condition precedent to standing under either subsection (1)(b) or (1)(c). In re Custody of A.D.C., 969 P.2d 708 (Colo. App. 1998).

The fact that reported cases under this section involved step-parents or blood relatives of the child or his parents does not mean that only those persons should be accorded standing as "person(s) other than a parent" where no language in the statute or in any Colorado appellate decision indicates that such relationship is a legal requirement for nonparent standing to commence custody proceedings. In re Custody of C.C.R.S., 872 P.2d 1337 (Colo. App. 1993), aff'd, 892 P.2d 246 (Colo. 1995).

Petition filed within six months of child's nonparent's departure from the joint residence was timely, and court properly exercised jurisdiction over motion for parental responsibilities by second mother to child when both mothers lived with child for six and one-half years, both shared financial cost of supporting the child, and both shared in major decisions involving the child, even though only one mother was listed as the child's mother on the child's adoption papers. In re E.L.M.C., 100 P.3d 546 (Colo. App. 2004).

Colorado district court had no jurisdiction under this section when it issued order granting full faith and credit to Wyoming court order. Gutierrez v. District Court, 183 Colo. 264, 516 P.2d 647 (1973).

Proceedings under the Uniform Dissolution of Marriage Act are not preempted by the Colorado Children's Code where mother placed child with non-parents in contemplation of relinquishment and adoption proceedings under the Children's Code, but such proceedings later became impossible when the mother withdrew her consent and did not honor her agreement to obtain counseling as required by the Children's Code. In re Custody of C.C.R.S., 872 P.2d 1337 (Colo. App. 1993), aff'd, 892 P.2d 246 (Colo. 1995).

Showing of unfitness of biological parent is not required before parental responsibilities can be allocated to nonparent. People ex rel. A.M.K., 68 P.3d 563 (Colo. App. 2003).

Due process does not require a showing of parental unfitness or the use of an enhanced standard of proof in a case that does not involve the termination or relinquishment of parental rights nor their abrogation by adoption. In re Custody of C.C.R.S., 872 P.2d 1337 (Colo. App. 1993), aff'd, 892 P.2d 246 (Colo. 1995).

Due process does not require clear and convincing evidence to support the award of custody to a nonparent with standing to seek custody of a child, but, rather, a showing by a preponderance of the evidence that it is in the best interests of the child. In re Custody of A.D.C., 969 P.2d 708 (Colo. App. 1998).

Child is not an "other" party who may intervene through independent counsel pursuant to this section. Since a child is represented by a guardian ad litem in custody, visitation, and parenting time proceedings, a child is already fully represented and is not a party able to intervene in such proceedings. In re Hartley, 886 P.2d 665 (Colo. 1994).

Stepfather lacked standing to seek parenting time, even under argument of "psychological parent", under subsection (1)(c) because he did not have physical care of the child in the six months prior to filing his motion as required by subsection (1). In re C.T.G., 179 P.3d 213 (Colo. App. 2007).

Presumption favoring a parent's determination regarding the best interests of the child may be rebutted by proof of clear and convincing evidence of either: (1) The parent's unfitness; or (2) the best interests of the child. In re Adoption of C.A., 137 P.3d 318 (Colo. 2006); In re Reese, 227 P.3d 900 (Colo. App. 2010).

Nonparent need not show demonstrated harm to child to satisfy "special weight" accorded to parental determinations. In re Adoption of C.A., 137 P.3d 318 (Colo. 2006); In re Reese, 227 P.3d 900 (Colo. App. 2010).

Court may not allocate parental responsibilities to a nonparent unless it accords "special weight" to the parent's determination of the best interests of the child. Application of the clear and convincing proof standard is necessary to accord special weight to a parent's determination of best interests. In re Reese, 227 P.3d 900 (Colo. App. 2010).

A court meets the due process requirement in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), to accord "special weight" to a parent's determination of the best interests of a child by considering all relevant factors set forth in 14-10-124 and entering findings based on clear and convincing proof that the best interests of the child justify the award of parental responsibilities to the nonparent. In re Reese, 227 P.3d 900 (Colo. App. 2010).

Nonparent need not prove that child's parents are unfit. Court may award parental rights to a nonparent if the nonparent can rebut the presumption in favor of the parents by proving by clear and convincing evidence that granting parental responsibilities to the nonparent is in the child's best interests. In re M.W., 2012 COA 162, 292 P.3d 1158.

In allocation of parental responsibilities proceedings involving nonparents, before granting nonparent's request for parental responsibilities, a court must consider the following: (1) A presumption exists favoring the parental determination regarding parental responsibilities; (2) to rebut this presumption, the nonparent must show by clear and convincing evidence that the parental determination is not in the child's best interests; and (3) the nonparent must show that the nonparent's requested allocation is in the child's best interests. Finally, a court allocating parental responsibilities to a nonparent must make factual findings and legal conclusions identifying the "special factors" on which the court relies. In re M.W., 2012 COA 162, 292 P.3d 1158.

Although whether the mother and father are fit parents, or whether they generally make decisions in the child's best interests, is relevant, it is not a dispositive or conclusive factor in determining whether it would be in the child's best interests to allocate parental responsibilities to the nonparent. In re M.W., 2012 COA 162, 292 P.3d 1158.

When a nonparent is involved in a child's life to the degree that he or she becomes a psychological parent and meets the strict standing requirements under subsection (1), a court may intervene, without violating Troxel v. Granville, 530 U.S. 57 (2000), and determine, after according special weight to the parent's determination, whether it is in the child's best interests to allocate parental responsibilities to the nonparent. In re M.W., 2012 COA 162, 292 P.3d 1158.

The intrinsic threat of emotional harm to child from curtailment or termination of relationship with psychological parent is not, in itself, sufficient to satisfy the requirement that the court give special weight to the presumption that a parent's determination is in the best interests of the child. Section 14-10-124 identifies non-exclusive statutory factors courts should consider in determining the best interests of the child. In re Reese, 227 P.3d 900 (Colo. App. 2010).

Husband and wife who sought and were granted custody of a nonbiological child under a parental responsibility order owed a duty of support to the child, and trial court had the authority in their dissolution of marriage proceeding to order husband to pay child support pursuant to 14-10-115 (1) and (17). In re Rodrick, 176 P.3d 806 (Colo. App. 2007).

Applied in In re Pilcher, 628 P.2d 126 (Colo. App. 1980); Deeb v. Morris, 14 B.R. 217 (Bankr. D. Colo. 1981); In re Johnson, 634 P.2d 1034 (Colo. App. 1981); In re Matter of V.R.P.F., 939 P.2d 512 (Colo. App. 1997).