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19-4-105. Presumption of paternity.

Statute text

(1) A person is presumed to be the natural parent of a child if:

(a) The person and the parent who gave birth to the child are or have been married to each other or are in a civil union pursuant to article 15 of title 14, and the child is born during the marriage or civil union, within three hundred days after the marriage or civil union is terminated by death, annulment, declaration of invalidity of marriage or civil union, dissolution of marriage or civil union, or divorce, or after a decree of legal separation is entered by a court;

(b) Before the child's birth, the person and the parent who gave birth to the child have attempted to marry each other by a marriage solemnized in apparent compliance with law or attempted to enter into a civil union in apparent compliance with law, although the attempted marriage or civil union is or could be declared invalid, and:

(I) If the attempted marriage or civil union could be declared invalid only by a court, the child is born during the attempted marriage or civil union or within three hundred days after its termination by death, annulment, declaration of invalidity of marriage or civil union, dissolution of marriage or civil union, or divorce; or

(II) If the attempted marriage or civil union is invalid without a court order, the child is born within three hundred days after the termination of cohabitation;

(c) After the child's birth, the person and the parent who gave birth to the child have married or entered into a civil union, or attempted to marry each other by a marriage solemnized in apparent compliance with law or enter into a civil union in apparent compliance with law, although the attempted marriage or civil union is or could be declared invalid, and:

(I) The person has asserted parentage of the child in writing filed with the court or registrar of vital statistics, if such acknowledgment has not previously become a legal finding pursuant to subsection (2)(a.5) of this section;

(II) With the person's consent, the person is named as the child's parent on the child's birth certificate; or

(III) The person is obligated to support the child under a written voluntary promise or by court order or by an administrative order issued pursuant to section 26-13.5-110;

(d) While the child is under the age of majority, the person receives the child into the person's home and openly holds out the child as the person's natural child;

(e) (Deleted by amendment, L. 2022.)

(f) The genetic tests or other tests of inherited characteristics have been administered pursuant to section 13-25-126, and the results show that the alleged genetic parent is not excluded as the probable genetic parent and that the probability of the person's genetic parentage is ninety-seven percent or higher. This subsection (3)(f) does not apply to a donor as defined in section 19-1-103.

(2) (a) A presumption of parentage pursuant to subsection (1) of this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more conflicting presumptions arise, the presumption that, on the facts, is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing parentage of the child by another person other than the parent who gave birth. In determining which of two or more conflicting presumptions controls, based upon the weightier considerations of policy and logic, the judge or magistrate shall 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 parent was placed on notice that the presumed parent might not be the genetic parent, unless the child was conceived through an assisted reproductive procedure;

(II) The length of time during which the presumed parent has assumed the role of the child's parent;

(III) The facts surrounding the presumed parent's discovery of the possibility that the presumed parent was not a genetic parent, unless the child was conceived through an assisted reproductive procedure;

(IV) The nature of the existing parent-child relationship;

(V) The child's age;

(VI) The child's relationship to any presumed parent or parents;

(VII) The extent to which the passage of time reduces the chances of establishing another person's parentage 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 parent-child relationship between the child and the presumed parent or parents or the chance of other harm to the child.

(a.5) (I) A person and the parent who gave birth to the child may sign a voluntary acknowledgment of parentage to establish the parentage of the child. A voluntary acknowledgment of parentage may be signed by a parent who gave birth to the child and either:

(A) Another person who is or believes themselves to be a genetic parent; or

(B) Another person who is an intended parent of a child conceived through an assisted reproductive procedure.

(II) A married person or person in a civil union who gives birth to a child may only sign a voluntary acknowledgment of parentage with a person who is not the married person's spouse or civil union partner if the spouse or civil union partner signs a denial of parentage.

(b) A duly executed voluntary acknowledgment of parentage takes effect upon the filing of the document with the state registrar of vital statistics and may be rescinded within the earlier of:

(I) Sixty days after execution of such acknowledgment; or

(II) On the date of any administrative or judicial proceeding pursuant to this article or any administrative or judicial proceeding concerning the support of a child to which the signatory is a party.

(c) An acknowledgment of parentage may be challenged in court only on the basis of fraud, duress, or mistake of material fact, with the burden of proof upon the challenger. Any legal responsibilities resulting from signing an acknowledgment of parentage, including child support obligations, continue during any challenge to the finding of parentage, except for good cause shown.

(d) Except as otherwise provided in subsections (2)(b) and (2)(c) of this section, a voluntary acknowledgment of parentage that complies with this section and section 25-2-112, and is filed with the state registrar of vital statistics, is equivalent to an adjudication of parentage of the child and confers on the acknowledged parent all rights and duties of a parent. The court shall give full faith and credit to a voluntary acknowledgment of parentage that is effective in another state, including a federally recognized Indian tribe, if the acknowledgment was in a signed record and otherwise complies with the laws of the other state or federally recognized Indian tribe.

History

Source: L. 87: Entire title R&RE, p. 793, 1, effective October 1. L. 89: (1)(c)(III) amended, p. 1247, 3, effective April 1. L. 91: (1)(f) amended, p. 253, 10, effective July 1. L. 97: (1)(c)(I), (1)(e), and (2) amended, p. 1274, 13, effective July 1. L. 2003: (2)(a) amended, p. 1268, 59, effective July 1. L. 2008: (2)(c) amended, p. 1656, 2, effective August 15. L. 2022: Entire section amended, (HB 22-1153), ch. 210, p. 1389, 4, effective August 10. L. 2023: IP(2)(b) amended, (SB 23-173), ch. 330, p. 1982, 22, effective June 2.

Annotations

Editor's note: This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar to those contained in 19-6-105 as said section existed in 1986, the year prior to the repeal and reenactment of this title.

Annotations

Cross references: For the legislative declaration contained in the 1997 act amending subsections (1)(c)(I), (1)(e), and (2), see section 1 of chapter 236, Session Laws of Colorado 1997.

Annotations

 

ANNOTATION

Annotations

Law reviews. For comment, "Bastardizing the Legitimate Child: The Colorado Supreme Court Invalidates the Uniform Parentage Act Presumption of Legitimacy in R. McG. v. J.W.", see 59 Den. L.J. 157 (1981). For article, "Legislative Update", see 12 Colo. Law. 1257 (1983). For article, "Legal Protection of Children in Nontraditional Families", see 29 Colo. Law. 79 (Nov. 2000). 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, "Colorado Civil Union Act", see 42 Colo. Law. 91 (July 2013).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

Section 19-6-104 authorizes establishment of paternal relationship between child and its natural father and recognizes the right of putative fathers to bring an action to establish paternity under the applicable provisions of this article. R. McG. v. J.W., 200 Colo. 345, 615 P.2d 666 (1980).

No provision for father not married to married natural mother to establish paternity. This article makes no provision for a male claiming to be the natural father of a child to bring an action to establish his paternity under circumstances where he was not married to the natural mother and the child was born to the natural mother during her marriage to another. R. McG. v. J.W., 200 Colo. 345, 615 P.2d 666 (1980).

And denial of standing unconstitutional. The juvenile court's construction of this article denying a claiming natural father not married to the natural mother statutory capacity or standing to commence a paternity action in connection with a child born to the natural mother during her marriage to another in order to establish that he was the natural father of the child violated equal protection of the laws under the fourteenth amendment to the United States constitution, 25 of art. II, Colo. Const., and the equal rights amendment to the Colorado constitution, 29 of art. II, Colo. Const. R. McG. v. J.W., 200 Colo. 345, 615 P.2d 666 (1980).

Presumed father under subsection (1)(d). When man received child into his home and openly held out the child as his natural child, he is presumed to be the father, and it is an error for court to dismiss in summary judgment proceedings. D.S.P. v. R.L.K., 677 P.2d 959 (Colo. App. 1983).

A juvenile court has subject matter jurisdiction to enter a judgment of paternity in a dependency or neglect case. The court has exclusive original jurisdiction in both dependency or neglect proceedings and proceedings to determine the parentage of a child. People in Interest of N.S., 2017 COA 8, 413 P.3d 172; People in Interest of D.C.C., 2018 COA 98, 486 P.3d 1183.

When a paternity issue arises, the juvenile court must follow the procedures outlined in the state's version of the Uniform Parentage Act. People in Interest of N.S., 2017 COA 8, 413 P.3d 172.

The Uniform Parentage Act requires the juvenile court to determine which parentage presumption should control and therefore does not allow a court to recognize more than two legal parents for a child. People in Interest of K.L.W., 2021 COA 56, 492 P.3d 392.

Court properly considered the children's best interests in making its determination that the biological father be named as the legal parent. People in Interest of K.L.W., 2021 COA 56, 492 P.3d 392.

Nothing in the statutory provisions, whether read separately or together, provides that an admission by a man seeking parental rights that he is not the child's biological father conclusively rebuts the presumption under this section. A presumed father's admission that he is not the biological parent does not necessarily rebut the presumption of fatherhood that arises by receiving the child into his home and openly holding that child out as his natural child when no judgment has been entered that establishes the paternity of another man. In re A.D., 240 P.3d 488 (Colo. App. 2010).

Nor does a presumed father's admission that he is not the child's biological father rebut the presumption of fatherhood arising out of his identification as the child's father on a birth certificate. People in Interest of J.G.C., 2013 COA 171, 318 P.3d 576.

Presumption is procedural, and retroactive application is proper where action commenced prior to enactment of this section. People in Interest of R.F.A., 744 P.2d 1202 (Colo. App. 1987).

Any presumption of paternity established under this section may be rebutted in an appropriate action by clear and convincing evidence or by a court decree establishing paternity of the child by another man. People in Interest of R.T.L., 780 P.2d 508 (Colo. 1989).

When presumptions of paternity arise in more than one potential father, trial courts must take the best interests of the child into account as part of policy and logic in resolving competing presumptions. N.A.H. v. S.L.S., 9 P.3d 354 (Colo. 2000); In re Ohr, 97 P.3d 354 (Colo. App. 2004).

The court should consider all the facts and circumstances of the case that bear directly on the child's best interests when competing presumptions of paternity arise. N.A.H. v. S.L.S., 9 P.3d 354 (Colo. 2000); People in Interest of K.L.W., 2021 COA 56, 492 P.3d 392.

The evidentiary standard for determining the weightier considerations of policy and logic is preponderance of the evidence. Once competing presumptions of fatherhood have been established that have not been rebutted by clear and convincing evidence, the court must resolve the issue of paternity by considering the best interests of the child and determining the weightier issues of policy and logic by applying a preponderance of the evidence standard. People ex rel. C.L.S., 313 P.3d 662 (Colo. App. 2011).

Presumption not overcome when defendant in personal injury action failed to introduce any evidence that plaintiff's decedent was not plaintiff's father, other than the fact that plaintiff's mother was still legally married to someone else. Trial court, therefore, properly directed verdict in favor of plaintiff on the issue of paternity. Lawrence v. Taylor, 8 P.3d 607 (Colo. App. 2000).

It is clear from subsection (1)(a) of this section and 19-4-107 (1)(b) that a man presumed to be a child's father by reason of his marriage to the child's mother at the time of conception is precluded from initiating an action to declare the nonexistence of the presumed father and child relationship after the child reaches the age of five. People in Interest of R.T.L., 780 P.2d 508 (Colo. 1989).

In cases in which paternity is disputed, whether in a proceeding under this article or article 6, paternity must be determined according to the procedures outlined under this article before the legal obligation for support can be imposed. People in Interest of R.T.L., 780 P.2d 508 (Colo. 1989).

An interpretation of 19-4-107 (1)(b) that would deny the right of a presumptive father to defend against a child support action by asserting the nonexistence of a father and child relationship runs counter to principles of statutory construction and would produce results not consistent with the welfare of the affected children and the best interests of society. In a child support action under article 6 of this title, the defense of nonpaternity may be asserted by a man presumed to be the father pursuant to subsection (1)(a) of this section notwithstanding that the man would have been precluded by 19-4-107 (1)(b) from bringing an action under this article to declare the nonexistence of the father and child relationship because of the passage of time. People in Interest of R.T.L., 780 P.2d 508 (Colo. 1989).

Applicability of doctrine of res judicata. Failure to raise the defense of nonpaternity during dissolution proceedings bars a presumed father from collaterally attacking the determination of paternity implicitly supporting award of child support incident to such dissolution proceedings brought under URESA. State ex rel. Daniels v. Daniels, 817 P.2d 632 (Colo. App. 1991).

A challenge to a paternity judgment on the basis of mistake of material fact, pursuant to subsection (2)(c), must be brought within the six-month time limit of C.R.C.P. 60(b). People ex rel. J.A.U. v. R.L.C., 47 P.3d 327 (Colo. 2002).

For evidence sufficient to show nonaccess, see M.W. and A.W. v. D.G., 710 P.2d 1174 (Colo. App. 1985).

Provisions of section extended to maternity determinations when read together with 19-4-122 and 19-4-125. In re S.N.V., 284 P.3d 147 (Colo. App. 2011).

Woman may gain the status of a child's natural mother even if she has no biological tie to the child just as a father may establish such status through other proof. Therefore trial court erred in concluding that birth mother's claim automatically prevailed over that of father's wife. In re S.N.V., 284 P.3d 147 (Colo. App. 2011).

Under the "holding out" provision and in the context of a same-sex relationship, a child may have two legal mothers. A woman may assert a maternity claim under this section as the child's presumptive mother even if the child has a legal biological mother. In re Parental Responsibilities of A.R.L., 2013 COA 170, 318 P.3d 581.

Applied in Jefferson County Dept. of Soc. Servs. v. D.A.G., 199 Colo. 315, 607 P.2d 1004 (1980); B.G. v. S.G., 199 Colo. 403, 609 P.2d 121 (1980); K.H.R. by and through D.S.J. v. R.L.S., 807 P.2d 1201 (Colo. App. 1990).