S.F.E. ex rel. T.I.E.

981 P.2d 642, 1998 Colo. J. C.A.R. 5758, 1998 Colo. App. LEXIS 284, 1998 WL 821338
CourtColorado Court of Appeals
DecidedNovember 13, 1998
DocketNo. 97CA1837
StatusPublished
Cited by8 cases

This text of 981 P.2d 642 (S.F.E. ex rel. T.I.E.) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
S.F.E. ex rel. T.I.E., 981 P.2d 642, 1998 Colo. J. C.A.R. 5758, 1998 Colo. App. LEXIS 284, 1998 WL 821338 (Colo. Ct. App. 1998).

Opinion

Opinion by

Judge JONES.

In this paternity action, G.L.P. (father) appeals and S.F.E. (mother) cross-appeals from the judgment granting mother sole custody of the minor child, T.I.E., and providing for parenting time, child support, and related matters. We affirm in part, reverse in part, and remand with directions.

The Father’s Appeal

I.

The father contends that the trial court erred in failing properly to apply the best interests standard to the determination of custody. We disagree.

A.

The father relies upon a portion of the trial court’s order, as subsequently corrected under C.R.C.P. 60(a), to argue that the court placed undue significance upon the parties’ marital status and treated him differently than it would have treated him if he had been married to the mother; That portion states:

It is significant to note that this is not a custody dispute arising following a marriage. This is a paternity action. The parties never had a relationship which was [645]*645in the nature of a marriage. While they discussed marriage, they never agreed to be married or lived together. They did, however, have a child. This Court is called upon to enter orders that are in the best interest of that child.
This court concludes that the better and more convincing evidence is that [the mother] should be awarded sole custody. [The child] is more closely bonded to her. The parties agree that she should reside with [the mother]. The psychological profiles of the parties, their prior conduct and the positions taken by them in this litigation make it clear that the parties cannot come to a consensus concerning matters of importance to [the child]. Unlike parties in a dissolution of marriage action who once at least came to an agreement that they should be married and live together as husband and wife, these parties never came to an agreement on that fundamental matter of importance.

Under the Children’s Code, §§19-1-101 to 19-6-106, C.R.S.1998, an award of custody must serve the public as well as the best interests of the child. L.A.G. v. People in Interest of A.A.G., 912 P.2d 1385 (Colo.1996).

Paternity actions are governed by the Uniform Parentage Act (UPA), §19-4-101, et seq., C.R.S.1998. Section 19-4-116(3)(a), C.R.S.1998, provides that the judgment determining the existence or non-existence of the parent and child relationship may contain a provision concerning custody and parenting time privileges, or any other matter, in the best interest of the child.

Here, we disagree with the father’s characterization of the court’s order. The trial court properly recognized that this case arose out of a paternity, and not a dissolution of marriage, action. As such, the proceedings were governed by the provisions and underlying purposes of the Children’s Code, which are broader than those applicable to a dissolution of marriage proceeding. See L.A.G. v. People in Interest of A.A.G., supra.

The order is not improper merely because the court recognized that the parties had neither married nor cohabited. Further, we do not read the order as creating a presumption in favor of mother or a presumption against the award of joint custody. Rather, the trial court could properly consider the parties’ conduct, both prior to and during this litigation, as relevant to the broader issue of whether the parties are able to cooperate and to make decisions jointly.

In addition to the above-referenced portion of the order, the court made additional findings that mother was rigid and inflexible and that father harbored a significant amount of anger and hostility. It also found that visitation occurred in an atmosphere of tension and distrust. All of these factors are appropriate to be considered under §19-4-116(3)(a), C.R.S.1998, and are related to the proper determination of the best interests of the child under the UPA and under §§14 — 10— 124 and 14-10-124(1.5), C.R.S.1998. These factors are also critical to the issue whether the parties are able to cooperate as joint custodians throughout the child’s minority.

Further, the trial court found that the child was still being breast fed and that she was more closely bonded to her mother. It rejected the opinion of the custody evaluator that joint custody was appropriate because that recommendation was based solely on the expectation that it would force the parties to communicate. Accordingly, we conclude that the findings do not establish that the trial court impermissibly treated the father differently from the mother.

In addition, this case is unlike the situation in In re Marriage of Moore, 35 Colo.App. 280, 531 P.2d 995 (1975), where the trial court improperly considered the wife’s living with a man to whom she was not married in disqualifying her as custodian of the children. There was no such disqualification in this case.

B.

The father also argues that the orders concerning parenting time constituted an abuse of discretion.

1.

First, the father specifically maintains that the parenting time order was too general and that the evidence did not support a [646]*646limitation of his parenting time. We disagree.

Under the UPA, the court may enter temporary and permanent orders regarding parenting time rights, and has continuing jurisdiction to modify such orders. See §§19 — 4— 111(4), 19-4-116(3), and 19-4-119(l)(b), C.R.S.1998. Further, in such proceedings the court must make and modify permanent orders respecting parenting time in accordance with the Uniform Dissolution of Marriage Act (UDMA), §14-10-101, et seq., C.R.S.1998 (UDMA). People in Interest of S.E.G., 934 P.2d 920 (Colo.App.1997).

Under the UDMA, the determination of parenting time is a matter within the sound discretion of the trial court, taking into consideration the child’s best interests and the policy of encouraging the parent-child relationship. Parenting time is primarily a right of the child and only secondarily a right of the parent. In re Marriage of Elmer, 936 P.2d 617 (Colo.App.1997).

If the evidence shows a lack of cooperation between the parties, a general order does not meet the purposes for which parenting time is intended. In re Marriage of Sepmeier, 782 P.2d 876 (Colo.App.1989); In re Marriage of Plummer, 709 P.2d 1388 (Colo.App.1985).

Here, the trial court found that the evidence did not show that the father represented a threat to the child or that he would be sexually inappropriate with her. It, therefore, concluded that the father should have parenting time that is sufficiently frequent and unrestricted to allow an appropriate father-daughter bond to develop. The court awarded the father “parenting time of three two-hour periods during the work week, two in the early evening and one during the weekend on the first and third weekends of the month.”

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981 P.2d 642, 1998 Colo. J. C.A.R. 5758, 1998 Colo. App. LEXIS 284, 1998 WL 821338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sfe-ex-rel-tie-coloctapp-1998.