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19-4-105. Presumption of paternity.

Statute text

(1) A man is presumed to be the natural father of a child if:

(a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, within three hundred days after the marriage is terminated by death, annulment, declaration of invalidity of marriage, dissolution of marriage, or divorce, or after a decree of legal separation is entered by a court;

(b) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:

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

(II) If the attempted marriage 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, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:

(I) He has acknowledged his paternity 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 paragraph (b) of subsection (2) of this section;

(II) With his consent, he is named as the child's father on the child's birth certificate; or

(III) He 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, C.R.S.;

(d) 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;

(e) He acknowledges his paternity of the child in a writing filed with the court or registrar of vital statistics, which shall promptly inform the mother of the filing of the acknowledgment, and she 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 has not previously become a legal finding pursuant to paragraph (b) of subsection (2) of this section. If another man is presumed under this section to be the child's father, acknowledgment may be effected only with the written consent of the presumed father or after the presumption has been rebutted.

(f) The genetic tests or other tests of inherited characteristics have been administered as provided in section 13-25-126, C.R.S., and the results show that the alleged father is not excluded as the probable father and that the probability of his parentage is ninety-seven percent or higher.

(2) (a) A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. 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. The presumption is rebutted by a court decree establishing paternity of the child by another man. In determining which of two or more conflicting presumptions should control, 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 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.

(b) A duly executed voluntary acknowledgment of paternity shall be considered a legal finding of paternity on 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) Except as otherwise provided in section 19-4-107.3, a legal finding of paternity 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 paternity, including child support obligations, shall continue during any challenge to the finding of paternity, except for good cause shown.

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.

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, __ P.3d __; People in Interest of D.C.C., 2018 COA 98, __ P.3d __.

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, __ P.3d __.

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).

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).