The Colorado Court of Appeals issued its opinion in In re the Parental Responsibilities Concerning B.R.D., and Concerning Decker on April 12, 2012.
Presumption of Fit Parent Versus Non-Parent—Custody.
Father sought liberal and expanded parenting time and a share of decision-making authority regarding his son. The trial court denied his request, awarding sole decision-making responsibility, primary residential caretaking, and majority parenting time to Phillip and Sherry Decker, the couple with whom the boy currently was residing. The order was vacated and the case was remanded.
Father and mother are biological parents of a boy born September 2005. Mother gave him up for adoption and he was placed with the Deckers shortly after birth. In January 2006, mother filed a petition stating that she wished to relinquish to the Deckers her parental rights. Several months later, father, who had not known of mother’s pregnancy, learned of the birth. He acknowledged paternity and objected to the adoption. Mother then asked the court to dismiss her relinquishment petition and have the boy returned to her. The Deckers asked the court to terminate mother and father’s parental rights.
In June 2007, mother and father entered into a stipulation with the Deckers that awarded the Deckers sole parental and decision-making responsibility, but also allocated some parenting time to mother and father. Mother and father reserved the right to ask for a modification of parental responsibilities and also paid child support to the Deckers. In December 2008, mother moved to increase her parenting time and to have more decision-making authority. In September 2009, father asked for a similar modification.
In October 2010, the court held a three-day evidentiary hearing. The court found that the boy was deeply attached to father and mother, as well as to the Deckers and their child. The court applied the endangerment standard found in CRS §§ 14-10-129 and -131 and, finding no endangerment, decided that the Deckers should be the primary residential custodians and exercise sole decision-making authority. Father appealed.
Father argued that the court failed to accord him the presumption that he is a fit parent acting in the best interests of the boy. The Court of Appeals agreed. The Court noted that the applicable statutes essentially establish a three-step analysis: (1) there is a presumption that prior orders should remain in effect; (2) to overcome the presumption, the court must find evidence showing that the status quo endangers the child and that a modification will create advantages that outweigh any harm caused by the modification; and (3) the modification must be in the child’s best interests.
In this case, however, the Court determined that the status of the persons involved (father versus non-parents) also is a determining factor. The Court found that parents have a fundamental interest, protected by the Due Process Clause, in the care, custody, and control of their children. A fit parent is presumed to act in the best interest of his or her child. In analyzing appellate decisions addressing conflicts between parents and non-parents, the Court found (1) there is a presumption that the parent has a first and prior right to custody, which presumption may be rebutted; (2) the presumption is given “special weight” by requiring proof of “special factors” that justify interference with a parent’s decisions when the parent has custody; (3) to grant responsibilities to a non-parent over the objection of a parent, a court must find by clear and convincing evidence that such an order is in the child’s best interests based on special factors; and (4) a fit parent who has relinquished custody is nonetheless entitled to the presumption that his or her decisions about the child’s custody are in the child’s best interests.
In this case, father has a constitutionally protected interest in the boy’s care, custody, and control, and is presumed to act in the boy’s best interests. Consequently, the statutory analysis is altered in the following manner: (1) rather than presuming the existing order remains in effect, the court must give “special weight” to father’s modification request (father gains the presumption); (2) the Deckers must be given an opportunity to rebut the presumption by showing that the modification is not in the boy’s best interests and that the present allocation does not endanger him, and they must prove that the present allocation is in the boy’s best interests; (3) the Deckers must satisfy their evidentiary burdens by a preponderance of the evidence standard; and (4) if the court denies father’s request, it must make findings of fact identifying the special factors on which it relied. Because the trial court did not follow the foregoing analytic framework, its ruling was in error and the case was remanded for proceedings conducted under the standards described in the opinion.
Summary and full case available here.
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