The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY March 21, 2019
2019COA43
No. 17CA2105, Parental Responsibilities Concerning A.C.H. — Family Law — Parental Responsibilities — Psychological Parent — Child Support
A division of the court of appeals considers whether a
“psychological parent” — an unrelated person who has received
parenting time and decision-making responsibility for a
nonbiological child under section 14-10-123(1)(b), (c), C.R.S. 2018
— may also be ordered to pay child support to the biological parent
of that child. The division concludes that section 14-10-115, C.R.S.
2018, permits a district court to impose a child support obligation
on a psychological parent when that person sought the legal right to
the same parental responsibilities as a natural or adoptive parent,
and was granted parental responsibilities under section 14-10-123. COLORADO COURT OF APPEALS 2019COA43
Court of Appeals No. 17CA2105 El Paso County District Court No. 16DR30207 Honorable Eric Bentley, Judge
In re the Parental Responsibilities of A.C.H. and A.F., Children,
and Concerning Anastasia C. Magana,
Appellant,
and
Justin Lee Hill,
Appellee.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE RICHMAN Román and Berger, JJ., concur
Announced March 21, 2019
The Kanthaka Group, John Scorsine, Colorado Springs, Colorado, for Appellant
No Appearance for Appellee
Sherman & Howard L.L.C., Jordan M. Fox, Denver, Colorado; Polidori, Franklin, Monahan, & Beattie L.L.C., Peter L. Franklin, Lakewood, Colorado, for Amicus Curiae the Colorado Chapter of the American Academy of Matrimonial Lawyers ¶1 Today, more and more children are a part of nontraditional
families — they are raised by at least one person not biologically
related to them, but who acts as a parent. Commonly referred to as
a psychological parent, an unrelated person who meets statutory
criteria may seek an order for parenting time and decision-making
responsibility under section 14-10-123(1)(b), (c), C.R.S. 2018. See
In re Parental Responsibilities Concerning E.L.M.C., 100 P.3d 546,
559 (Colo. App. 2004) (A psychological parent is “someone other
than a biological parent who develops a parent-child relationship
with a child through day-to-day interaction, companionship, and
caring for the child.” (quoting In re Marriage of Martin, 42 P.3d 75,
77-78 (Colo. App. 2002))). In fact, this “statutory grant of standing
to a non-parent to seek legal custody of a child constitutes
legislative recognition of the importance of ‘psychological parenting’
to the best interests of a child.” In re Parental Responsibilities
Concerning V.R.P.F., 939 P.2d 512, 514 (Colo. App. 1997).
Recognition as a psychological parent can occur through a
contested proceeding, see, e.g., In re Parental Responsibilities
Concerning C.C.R.S., 892 P.2d 246 (Colo. 1995), or can be achieved
1 through agreement between the natural/adoptive and psychological
parents.
¶2 But the statute addressing child support, section 14-10-115,
C.R.S. 2018, does not define the term “parent,” let alone mention a
psychological parent. So it comes as little surprise that we are now
asked to decide whether a psychological parent, who fought for and
obtained a parenting time and decision-making responsibility order
for his ex-girlfriend’s biological child, can also be ordered to pay
child support on behalf of that child. For the reasons discussed
below, we answer this question “yes.” As a result, we reverse the
order denying child support from a psychological parent and
remand the case to the district court for additional proceedings.
I. Relevant Facts
¶3 In 2006, Anastasia C. Magana (mother) and Justin Lee Hill
(Hill) became romantically involved and immediately moved in
together. At that time, mother had a three-month-old son, A.F.,
whose biological father had been absent since his birth. In 2007,
mother gave birth to A.C.H., a daughter fathered by Hill, and all of
them lived together as a family until 2010 when the couple broke
up.
2 ¶4 Following their split, the parties agreed to and followed an
equal parenting time schedule with both children.
¶5 In 2016, seeking permission to relocate to Texas, mother
petitioned the district court for an allocation of parental
responsibilities with respect only to A.C.H., the parties’ biological
child. Hill, asserting that he was A.F.’s psychological parent,
separately filed his own case seeking an allocation of parental
responsibilities for A.F., moved to consolidate the two petitions, and
argued for parental responsibilities as to both children, including
payment of child support (to him). The district court consolidated
the two cases.
¶6 Hill opposed the children’s relocation and sought to be named
their primary residential parent. He expressed a commitment to
provide the children with a stable, loving, and more permanent
home in Colorado. At Hill’s request, the district court appointed a
parental responsibility evaluator (PRE), a licensed mental health
professional, to investigate, report, and make recommendations on
parenting time. The district court subsequently granted an
unopposed motion for a supplemental PRE.
3 ¶7 The parties eventually stipulated, and the PREs agreed, that
Hill was A.F.’s psychological parent, that mother could relocate to
Texas, that the children should not be separated, and that the
district court should enter the same parental responsibilities order
for both children.
¶8 After a three-day permanent orders hearing, the district court
• noted that neither party pursued a paternity finding
under the Uniform Parentage Act, sections 19-4-101 to
-130, C.R.S. 2018;
• determined that Hill was A.F.’s psychological parent
under section 14-10-123;
• found that “the children [were] well bonded and
attached to both parents”;
• concluded that it was in the children’s best interests
for them to reside primarily with mother in Texas, but
allocated substantial parenting time to Hill during
school breaks and over the summer, with a total of
107 overnights; and
• further concluded that mother should have sole
decision-making responsibility as to education and
4 extracurricular activities for the children, but the
parties should share joint decision-making as to all
other major decisions.
¶9 The court reserved the issue of child support and asked for
supplemental briefing.
¶ 10 Later, in a separate, detailed, and thoughtfully written order,
the district court surveyed the reported case law in Colorado and
concluded that it could not impose a child support obligation on
Hill for the benefit of his psychological child, A.F., absent a “legal
parent-child relationship or some other narrowly defined
exceptional circumstance that is not present here.”
¶ 11 Mother appeals only that portion of the district court’s
judgment declining to award child support for A.F. Hill has not
filed a brief or appeared in our court. However, we have invited and
received an amicus brief supporting Hill’s position filed by the
Colorado Chapter of the American Academy of Matrimonial
Lawyers.
II. Discussion
¶ 12 Mother contends that as A.F.’s psychological parent, Hill is on
equal footing with her as a biological parent. This, she suggests,
5 means that he also has the responsibility to pay child support for
A.F. We agree only to the extent that a psychological parent status
may, under the circumstances present here, trigger an obligation to
provide support under section 14-10-115.1
¶ 13 The amicus brief correctly argues that there is no statutory
provision expressly imposing financial obligations on a
psychological parent. In relevant part, section 14-10-115(2)(a)
provides that in a proceeding for child support the district court
“may order either or both parents owing a duty of support to a child
. . . to pay an amount reasonable or necessary for the child’s
support.” (Emphasis added.) Section 14-10-115, however, does not
define the term “parent.” 2
1 We acknowledge that a psychological parent does not generally share equal footing with a biological parent. See Troxel v. Granville, 530 U.S. 57, 66 (2000) (“[T]he Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”). 2 Other statutes define “parent.” See § 13-92-102(4), C.R.S. 2018
(The statutory provision creating the Office of the Respondent Parents’ Counsel defines parent as “a natural parent of a child, . . . a parent by adoption, or a legal guardian.”); § 15-14-102(9), C.R.S. 2018 (probate code defines parent as one whose parental rights have not been terminated); § 19-1-103(82)(a), C.R.S. 2018 (children’s code defining parent as either a natural parent of a child or a parent by adoption); § 22-7-302(6), C.R.S. 2018 (The statute
6 ¶ 14 The amicus brief also correctly argues that no reported
decision by Colorado appellate courts expressly concludes that
child support must be paid to a biological parent by a psychological
parent. But no reported decision addresses whether a
“psychological parent” comes within the statutory term “parent” as
applied in section 14-10-115.
¶ 15 Though neither the statute nor any reported decision expressly
imposes financial obligations on a psychological parent, we find
support for the proposition that such obligations may be imposed in
the statute and in case law precedent.
¶ 16 “When interpreting a statute, we strive to give effect to the
legislative purposes by adopting an interpretation that best
effectuates those purposes.” In re Marriage of Joel & Roohi, 2012
COA 128, ¶ 18. Section 14-10-115(1)(a) outlines the statute’s
purpose:
creating the Colorado State Advisory Council for Parent Involvement in Education defines parent as “a child’s biological parent, adoptive parent, or legal guardian or another adult person recognized by the child’s school as the child’s primary caregiver.”); § 22-33- 104.5(1)(b), C.R.S. 2018 (Under school attendance law of 1963, “‘[p]arent’ includes a parent or guardian.”).
7 (I) To establish as state policy an adequate standard of support for children, subject to the ability of parents to pay;
(II) To make awards more equitable by ensuring more consistent treatment of persons in similar circumstances; and
(III) To improve the efficiency of the court process by promoting settlements and giving courts and the parties guidance in establishing levels of awards.
The first two purposes are relevant to our analysis. Imposing
financial obligations on a psychological parent helps to establish an
adequate standard of support. And when a psychological parent
occupies circumstances equivalent to those of a legal parent, it is
equitable to impose financial obligations on him or her, pursuant to
the factors outlined in the statute. To that end, our courts have
interpreted the term “parent,” as used in the child support statute,
to include adoptive parents. See In re Marriage of Ashlock, 629 P.2d
1108, 1109 (Colo. App. 1981).
¶ 17 Divisions of this court have upheld orders that child support
be paid by a person who is neither a biological nor an adoptive
parent. We conclude that a survey of those decisions, as well as
those reversing orders awarding child support against nonbiological
8 parents, provides guidance and informs how we should decide this
case.
¶ 18 In People in Interest of P.D., 41 Colo. App. 109, 580 P.2d 836
(1978), the district court permanently terminated the parental
rights of the child’s natural parents and awarded a husband and
wife legal and physical custody of the child, anticipating that they
would complete adoption proceedings. See id. at 111, 580 P.2d at
837. But before any adoption proceedings were initiated, the
custodial parents filed a dissolution action. See id. The resulting
decree of dissolution awarded custody of the child to the wife and
required the husband to pay child support, despite the husband’s
request to terminate custody and the accompanying child support
obligation. See id.
¶ 19 In reversing, the division held that because the husband was
only the child’s legal custodian, and not an adoptive parent, he was
serving in a voluntary capacity and could end his support obligation
at will. See id. at 112-13, 580 P.2d at 838. Pertinent to the court’s
decision was the fact that the husband had filed a motion to
terminate legal custody of the child. Id. at 111-12, 580 P.2d at 837.
9 ¶ 20 By contrast, in In re Marriage of Bonifas, 879 P.2d 478, 478
(Colo. App. 1994), the couple signed an agreement to adopt a child
and expressly agreed to assume “full financial responsibility for a
child” and pay all expenses relating to the care of the child. The
couple raised the child for ten years but did not complete the formal
adoption. Id. When the couple separated, the district court ordered
the husband to pay child support for the child, noting that he had
accepted “full financial responsibility for a child.” Id. at 479.
¶ 21 On appeal, the husband argued that he had no duty to
support the child under the decision in P.D. and the child support
statute. Id. The division agreed with husband. Id. But it
concluded that, under a contract theory, husband’s agreement to
provide financial support was binding on him, and the child was a
third-party beneficiary of that agreement. Id. The division also
concluded that the husband had received some benefit of the
agreement as he was awarded “liberal visitation rights” with the
child. Id. at 479-80.
¶ 22 In In re Marriage of Rodrick, 176 P.3d 806 (Colo. App. 2007),
the division affirmed an order directing a custodial father to pay
child support for a nonbiological child as part of a dissolution
10 proceeding. Pursuant to an “Order of Permanent Parental
Responsibility” the husband and wife had obtained custody of the
biological child of a friend and had raised the child in their home for
several years. Id. at 809. As described by the division, the parental
responsibility order was designed to be a step toward adopting the
child, but adoption proceedings were not commenced. Id. The
couple later separated and filed a dissolution proceeding. Id. at
809-10. Husband stated at the dissolution hearing that he wanted
parenting time with the child but argued that since he was only a
legal guardian of the child, he had no duty to pay child support
under section 14-10-115. Id. at 810. Relying on Bonifas, the
district court concluded the husband had a contractual duty to
support the child and awarded child support. Id.
¶ 23 The division affirmed the order awarding child support but did
so on statutory grounds. The division concluded that
[t]he parental responsibility order was entered under § 14-10-123, which is part of article 10 of title 14. It established a child support obligation by imposing the duties on husband and wife, described in § 19-1-103(73)(a), to provide [the child] with the necessities of life. Therefore, the trial court had the authority, under § 14-10-115(1) and (17), to order husband to pay child support.
11 Id. at 812. The division distinguished this case from P.D. because
husband had not asked the court to relieve him of custody or
terminate his relationship with the child; rather, he wanted
“parenting time and parental decision-making responsibility.” Id.
¶ 24 In People in Interest of B.S.M., 251 P.3d 511 (Colo. App. 2010),
the stepfather, who was not the child’s adoptive parent, declined to
exercise parenting time despite an out-of-state joint custody order.
He then refused to take custody of the child during a dependency
and neglect proceeding against the mother. Id. at 512. The
Department of Human Services initiated a petition and obtained an
order from the district court directing that, as joint custodian,
stepfather was obligated to support the child financially and pay
foster care fees incurred for the child. Id.
¶ 25 A division of this court, relying on (1) the definition of “parent”
in the Children’s Code, see §§ 19-1-115(4)(d), -103(82)(a), C.R.S.
2018, as the child’s natural parent or parent by adoption; (2) P.D.’s
holding that a child’s legal custodian may elect to terminate that
status at any time and has no legal obligation to continue
supporting the child; and (3) the distinction in Rodrick that the
12 psychological parent in that case had sought parenting time,
reversed the financial award against the stepfather. Id. at 513-14.
¶ 26 And in Sidman v. Sidman, 240 P.3d 360, 362-63 (Colo. App.
2009), the division determined that only the parents’ income, and
not the guardians’ income, can be included when determining child
support payable to the guardians under section 14-10-115. See id.
at 362. This was appropriate, said the division, because there was
no parental responsibility order and the guardians did not hold
themselves out as the child’s “de facto parents,” but instead were
designated his legal guardians by a court order. Id. at 362-63.
¶ 27 Thus, the amicus brief correctly points out that Colorado has
not obligated a nonbiological or nonadoptive parent to financially
support another’s natural child, absent the exception of an
expressed intent to adopt. But none of the relevant cases involved a
biological parent seeking child support from a recognized
psychological parent who had raised and supported a child as his
own, taken real and substantial legal steps to seek and maintain
the same parental rights as the biological parent, and obtained a
court order enforcing those rights.
13 ¶ 28 In those cases where child support was ordered to be paid,
Bonifas and Rodrick, a common and, perhaps decisive, factor was
that the husband who was ordered to pay child support had sought
and received a continuing relationship with the child. This is the
case with Hill. In those cases where child support was not ordered,
P.D. and B.S.M., the husband and stepfather, respectively, had
taken affirmative steps to terminate the relationship with the child.
¶ 29 While we found no Colorado decision that deals with the
precise circumstances in this case — where a psychological parent
sought and fought for the same parental responsibilities as a
natural or adoptive parent — cases from other states have
addressed this situation and their decisions have heavily weighted
the actions of a psychological parent who seeks to maintain a
parental relationship with a child in determining child support
obligations.
¶ 30 A very recent Alaska Supreme Court decision addressed this
scenario. In Moore v. McGillis, 408 P.3d 1196 (Alaska 2018), the
stepfather, in petitioning for dissolution of marriage, sought legal
and physical custody for his biological daughter and his stepson,
the mother’s child from a previous relationship. Id. at 1198. He
14 had established himself as the stepson’s psychological parent and
had received summer and holiday visitation and shared legal
custody of him. Id. A few years later, the stepson’s biological father
reappeared and intervened in the case. Id. at 1198-99. The mother
argued that the stepfather could not maintain custody of the
stepson and yet absolve himself of his child support obligation. Id.
The Alaska Supreme Court agreed with mother:
[Stepfather] has not sought to disestablish his parental relationship to the [stepson] here. The trial court found that he has continued to act as the boy’s psychological father, and [he] has fought for and obtained continued physical and legal custody of the child. We have stated that those with legal custody of a child are obliged to support that child.
Id. at 1203.
¶ 31 A decision by the Pennsylvania Supreme Court on this issue is
also pertinent. In A.S. v. I.S., 130 A.3d 763 (Pa. 2015), the child’s
stepfather “haled a fit [biological mother] into court, repeatedly
litigating to achieve the same legal and physical custodial rights as
would naturally accrue to any biological parent.” Id. at 770. The
court described the case as not a typical one “of a stepparent who
has grown to love his stepchildren and wants to maintain a
15 post-separation relationship with them.” Id. Instead, the stepfather
“ha[d] litigated and obtained full legal and physical custody rights,
and ha[d] also asserted those parental rights to prevent a competent
biological mother from relocating with her children.” Id. The
Pennsylvania Supreme Court held that, because the stepfather had
“taken sufficient affirmative steps legally to obtain parental rights,”
he “should share in parental obligations, such as paying child
support.” Id. at 770-71. The supreme court added, “[e]quity
prohibits [the] [s]tepfather from disavowing his parental status to
avoid a support obligation to the children he so vigorously sought to
parent.” Id. at 771. 3
¶ 32 The reasoning in these cases is persuasive. Here too, Hill held
himself out as A.F.’s father, almost from birth, by treating him as
3 Michigan, New Jersey, and Connecticut courts have also held that a stepparent’s duty to pay child support after divorce can be enforced by applying principles of estoppel. See Nygard v. Nygard, 401 N.W.2d 323, 326-27 (Mich. Ct. App. 1986) (applying promissory estoppel to conclude that a husband who had agreed to raise an unborn child as his own could be held responsible for child support); see also Miller v. Miller, 478 A.2d 351, 357-58 (N.J. 1984) (applying equitable estoppel to enforce child support where the husband had discussed adopting the wife’s children and he had prohibited any support from or visitation with the natural father during their marriage); W. v. W., 779 A.2d 716, 720-22 (Conn. 2001). Mother in this case does not assert an estoppel theory.
16 his own. They lived together as a family for nearly four years, and
Hill is the only father A.F. has ever known. And even after the
parties broke up, Hill did not take his relationship with A.F. for
granted. He exercised equal parenting time with the child for the
next six years. When mother wanted to relocate with the child to
Texas, he initiated an allocation of parental responsibilities,
including a PRE investigation, and, at all times, he insisted that he
be named the child’s primary parent in Colorado. In the end, after
numerous hearings, the court ultimately granted him an order for
parenting time and decision-making responsibility for the child.
¶ 33 We laud his efforts to maintain this bond with the child, but
with the privileges of parenting should go the duties, including
financial support. We cannot embrace a situation in which a
psychological parent who fights for and obtains all the same
responsibilities of a legal parent does not also assume the
responsibility to pay child support. We find these circumstances
much more akin to those in Bonifas and Rodrick (where parents
attempted adoption and continued a parent-child relationship) than
to P.D. and B.S.M. (where former stepfathers denied that they were
the child’s parent).
17 ¶ 34 We emphasize that here, as in Rodrick, the court has entered a
parental responsibilities order under section 14-10-123 that was
intended to be permanent. Like the order entered in Rodrick, the
parenting time and decision-making order entered in favor of Hill
imposes a duty to provide the child with the necessities of life.
Rodrick, 176 P.3d at 812.
¶ 35 We conclude that in cases like Rodrick and this one the district
court has the authority to determine that a psychological parent
owes a “duty of support” to the child within the meaning of section
14-10-115(2), and, upon such a finding, the district court has the
authority to impose a child support obligation on a psychological
parent.
¶ 36 We emphasize that our opinion is limited to those
psychological parents who have (1) established themselves as
“parents,” rather than “guardians”; and (2) sought and received an
intended-to-be-permanent allocation of parental responsibilities.
We are not creating a new class of stepparent obligors, nor are we
suggesting that the mere existence of a psychological parent-child
relationship, on its own, establishes a support obligation under
section 14-10-115. And we note that our opinion does not mean
18 that A.F.’s biological father, if found, is relieved from his duty to
support his child.
¶ 37 We acknowledge that the district court was persuaded on
public policy considerations in reaching its decision. Citing B.S.M.,
251 P.3d at 514, it stated:
A stepparent who tried to create a warm family atmosphere with his or her stepchildren would be penalized by being forced to pay support for them in the event of a divorce. At the same time, a stepparent who refused to have anything to do with his or her stepchildren beyond supporting them would be rewarded by not having to pay support in the event of a divorce.
The court further indicated that if it were to “impose a child support
obligation on [Hill] for caring for [A.F.] as if he were his own son, it
would unfairly penalize him for behavior that should be
encouraged, and it would create a perverse incentive for him to
diminish the relationship in order to reduce his child support
obligation.” And when considering the broader implications, it
added, “Good-[S]amaritan relatives who [take] on substantial
responsibilities with minimal or no compensation, could find their
humanitarian good deeds penalized in the form of a substantial
child support order.”
19 ¶ 38 But Hill here did more than create a “warm family
atmosphere” with A.F. See id. He took active legal steps to place
himself on equal footing with the biological mother and prevent her
relocation. And he sought an allocation of parental responsibilities,
rather than an order of guardianship. By concluding that a
psychological parent, under these circumstances, is responsible for
child support, we “increase the likelihood that only individuals who
are truly dedicated and intend to be a stable fixture in a child’s life
will take the steps to litigate and obtain rights equal to those of the
child’s parent.” See A.S., 130 A.3d at 771.
III. Conclusion
¶ 39 We reverse that part of the district court’s order holding that it
was foreclosed from ordering Hill to pay child support as to A.F.,
and we remand with directions to further consider Hill’s child
support obligations in accordance with section 14-10-115.
JUDGE ROMÁN and JUDGE BERGER concur.