W.C. ex rel. A.M.K.

907 P.2d 719, 19 Brief Times Rptr. 1487, 1995 Colo. App. LEXIS 287
CourtColorado Court of Appeals
DecidedOctober 12, 1995
DocketNo. 91CA1628
StatusPublished
Cited by190 cases

This text of 907 P.2d 719 (W.C. ex rel. A.M.K.) 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
W.C. ex rel. A.M.K., 907 P.2d 719, 19 Brief Times Rptr. 1487, 1995 Colo. App. LEXIS 287 (Colo. Ct. App. 1995).

Opinion

Opinion by

Judge ROY.

Petitioner, W.C., appeals from the judgment of the trial court denying his claim to a parent and child legal relationship between himself and A.M.K., his biological son (child). Petitioner also challenges the trial court’s finding of, and its refusal to terminate, a parent and child relationship between child and respondent, R.K. (husband), who was married to child’s natural mother at the time of child’s conception and birth. He also appeals the trial court’s award of costs and attorney fees. We affirm.

Child was born January 22,1982, to mother while she was married to husband. During mother’s pregnancy, both mother and petitioner suspected that petitioner was child’s biological father as they had engaged in sexual intercourse near the time of conception. Both petitioner and husband were called to the hospital at the time of birth. After the birth of child, petitioner did not claim paternity and no proceeding was com[721]*721menced by either mother or any other interested person to establish his paternity.

Husband believed that he was child’s father, held child out to the public as his child, and had his name placed on child’s birth certificate. The marriage between mother and husband was subsequently dissolved in April 1984 in a proceeding in which the child was alleged to be an issue of the marriage. Mother and husband entered into a written separation agreement which was incorporated into the decree and required husband to support child and to provide child’s health insurance. The agreement also provided for regular visitation between husband and child, which husband has continually exercised.

Petitioner did not take any action to claim paternity until the fall of 1988, six years after child’s birth. Then, at petitioner’s suggestion, he, mother, and child voluntarily submitted to blood tests, the results of which indicated a probability above 97% that petitioner was child’s biological father. In March 1989, petitioner instituted this action.

After a three-day hearing, the trial court entered a judgment holding that there was a parent and child legal relationship between husband and child. The court found that petitioner was child’s biological father, but that it was in child’s best interests to continue the parent and child relationship between husband and child. This appeal followed.

I.

At the outset, and contrary to husband’s contention, we conclude that petitioner’s claim is not barred by the five-year statute of limitations now contained in § 19-4-107(l)(b), C.R.S. (1995 Cum.Supp.).

Section 19-4-107(l)(b) is a statute of limitations applicable to actions brought by the child, the mother, a man who is presumed to be the father by virtue of § 19-4-105(l)(a), (l)(b) and (l)(c), C.R.S. (1995 Cum.Supp.), and certain governmental agencies to declare the nonexistence of a father and child relationship presumed to exist by virtue of § 19-4-105(l)(a), (l)(b) and (l)(c). These fatherhood presumptions relate to a man who was married to the child’s mother at the time of the child’s birth; or who, together with other acts or circumstances, attempted a solemnized marriage with the child’s mother either prior to or following the birth of the child which is or could be declared invalid.

Petitioner is not a person or entity to whom or to which the five-year limitation applies. More particularly, petitioner is not a man whose fatherhood is presumed pursuant to Colo.Sess.Laws 1987, ch. 138, § 19-4-105(l)(a), (l)(b), or (l)(c).

Petitioner claims a presumed status pursuant to § 19-4-105(l)(f) in that the result of blood tests do not exclude him as a probable father and the probability of his parentage is 97% or greater. Petitioner is, therefore, an “interested party” who can commence an action to establish a father and child relationship at any time prior to the child’s eighteenth birthday. Colo.Sess.Laws 1987, eh. 138, § 19-4,-107(2); and Colo.Sess. Laws 1987, ch. 138, § 19-4-108.

Husband asserts that, before petitioner can establish his own parent and child relationship by virtue of a presumption, petitioner must first obtain an order declaring the nonexistence of his presumed parent and child relationship. Therefore, petitioner’s action is subject to the five-year limitation of § 19-4-107(l)(b) and is barred. We disagree.

The five-year statute relates to actions to declare the nonexistence of the father and child relationship by a man who is a presumed father by virtue of marriage or attempted marriage. The Uniform Parentage Act does not require that one man’s presumed paternity by marriage or attempted marriage be disestablished before an action to assert a parent and child legal relationship by another man based on a different presumption or basis can be commenced. Indeed, § 19-4-105(2) specifically contemplates that a child may have more than one presumed father and provides criteria for determining which of two presumed fathers will have a parent and child relationship without elevating one presumption over the other.

Husband relies in part on M.R.D. v. F.M., 805 P.2d 1200 (Colo.App.1991), in which a division of this court held that the five-year [722]*722statute barred an action by the mother and presumed father by marriage to establish a parent and child relationship between the child and the biological father. The court reasoned that the presumed father by marriage must first disestablish his own status before he could assert the presumed status of the biological father. In this instance, however, the presumed biological father is attempting to assert his own paternity, not that of another, and he is not, as was the case in M.R.D., attempting to avoid the five-year limitation or the strong presumption in favor of legitimacy. See R. McG. v. J.W., 200 Colo. 345, 615 P.2d 666 (1980).

Husband’s reliance on People in Interest of M.P.R., 723 P.2d 743 (Colo.App.1986) is, in our view, misplaced. In M.P.R., the biological father commenced a proceeding eleven months after birth of a child who also had a presumed father by marriage. The court held that eleven months was a reasonable time under what is now § 19-4-107(1)(b). To the extent, if any, that case held that actions initiated by biological fathers to establish their parent and child relationship are limited by § 19-4-107(1)(b), we disagree with the analysis and decline to follow it.

II.

Petitioner argues that the trial court erred in retaining the parent and child relationship between child and husband. We perceive no error.

The trial court found petitioner was a presumed father of the child pursuant to Colo. Sess.Laws 1987, ch. 138, § 19-4-105(1)00 and § 13-25-126, C.R.S. (1987 Repl.Vol. 6A), i.e., he was the biological father. The court also found that husband was a presumed father by virtue of Colo.Sess.Laws 1987, ch. 138, § 19-4-105(l)(a), ie., he was married to the natural mother at the time of birth, and by virtue of Colo.Sess.Laws 1987, ch. 138, § 19-4-105(1)(e), i.e., he had acknowledged his paternity.

The trial court then, in our view, correctly applied § 19-4-105(2), C.R.S. (1995 Cum. Supp.), which provides:

A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence.

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Bluebook (online)
907 P.2d 719, 19 Brief Times Rptr. 1487, 1995 Colo. App. LEXIS 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wc-ex-rel-amk-coloctapp-1995.