September 16, 2014

Colorado Court of Appeals: Action to Establish Paternity Must Be Brought Prior to Child’s 18th Birthday

The Colorado Court of Appeals issued its opinion in In re Parental Responsibilities of I.M. on Wednesday, July 3, 2013.

Paternity—Statute of Limitations.

In this paternity action, Rebecca A. McKenzie (mother) appealed the order granting judgment on the pleadings in favor of Mark A. Russo (Russo), which held that her action to determine the existence of a father–child relationship with I.M. was barred by the statute of limitations. The order was affirmed.

I.M. was born on October 2, 1992. Russo and mother were not married. On March 11, 2011, mother, as next friend, sought to establish paternity under CRS § 19-4-105(1)(d). Russo responded that because I.M. was over age 18, mother’s action was barred by the statute of limitations under CRS § 19-4-108. The trial court granted Russo’s motion for judgment on the pleadings because the action was barred by the statute of limitations. Mother appealed.

Mother argued that the trial court should have considered CRS § 19-4-107(1) and (2), which allow her to bring an action “at any time.” The Court of Appeals disagreed. The Court held that CRS § 19-4-107(1) is inapplicable because the prerequisite allegation that Russo and mother were married or attempted to marry was not made. CRS § 19-4-107(2) allows an action to be brought at any time for the purpose of determining the existence of the father–child relationship presumed under CRS § 19-4-105(1)(d). However, CRS § 19-4-108 requires such an action be brought before a child’s 18th birthday.

The Court denied Russo’s request for an award of appellate attorney fees under CRS §§ 13-17-102(4) and 19-4-117. The order was affirmed.

Summary and full case available here.

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