April 26, 2017

Small Estate Affidavit, Writs of Garnishment, and More Forms Amended in March

In March 2017, the Colorado State Judicial Branch issued amendments to 13 of its JDF forms. The amended forms include trust and estate forms such as JDF 999, “Collection of Personal Property by Affidavit,” and writ of garnishment forms such as C.R.C.P. Form 26, “Writ of Continuing Garnishment.”

The 13 forms amended in March available below in PDF format. Some of these forms are also available in Word format on State Judicial’s forms page. Additionally, one form was amended in February and seven were amended in January. These forms are also available below in PDF format.

ADOPTION

  • JDF 495 – Instructions for Second Parent Adoption – Without a Civil Union (revised 1/17)
  • JDF 498 – Instructions for Kinship Adoption (revised 1/17)
  • JDF 499 – Instructions for Custodial Adoption (revised 1/17)
  • JDF 500 – Instructions for Stepparent Adoption (revised 1/17)
  • JDF 528 – Petition for Adult Adoption (revised 3/17)

CRIMINAL LAW

  • JDF 323(a)Instructions to File a Petition to Seal Records Related to Illegal Possession or Consumption of Ethyl Alcohol by an Underage Person (MIP) (For Offenses Committed Prior to July 1, 2014) (revised 3/17)
  • JDF 375 – Compensated Surety Request for a Show Cause Hearing (revised 1/17)

DOMESTIC RELATIONS

  • JDF 1111 – Sworn Financial Statement (revised 1/17)
  • JDF 1337 – Certificate of Mediation/ADR Compliance (CADR) (revised 2/17)

GARNISHMENT

  • C.R.C.P. Form 26 – Writ of Continuing Garnishment (revised 3/17)
  • C.R.C.P. Form 28 – Objection to Calculation of Exempt Earnings (revised 3/17)
  • C.R.C.P. Form 29 – Writ of Garnishment with Notice of Exemption and Pending Levy (revised 3/17)
  • C.R.C.P. Form 31 – Writ of Garnishment for Support (revised 3/17)
  • C.R.C.P. Form 32 – Writ of Garnishment – Judgment Debtor Other Than Natural Person (revised 3/17)
  • C.R.C.P. Form 33 – Writ of Garnishment in Aid of Writ of Attachment (revised 3/17)

PROTECTIVE PROCEEDINGS/PROBATE

  • JDF 782 – Instructions to File Petition to Accept Adult Guardianship and/or Conservatorship in Colorado from Sending State (revised 3/17)
  • JDF 906 – Instructions for Probate With a Will (revised 3/17)
  • JDF 907 – Instructions for Probate Without a Will (revised 3/17)
  • JDF 998 – Instructions for Completing Affidavit for the Collection of Personal Property of a Decedent (revised 3/17)
  • JDF 999 – Collection of Personal Property by Affidavit (revised 3/17)

SMALL CLAIMS

  • JDF 250 – Notice, Claim, and Summons to Appear for Trial (revised 1/17)

Name Change, Adoption, and Seal My Case Forms and Instructions Amended in August

The Colorado State Judicial Branch revised sixteen JDFs in August. The revised forms include change of name forms and instructions, a motion and order to seal criminal records, a motion to convert a legal separation to dissolution, and adoption forms and instructions. These revised forms are available here as PDF downloads or from the State Judicial forms page.

PLEASE NOTE: The court’s website hosting the JDF forms has been revised to eliminate the option of modifying the form itself. This decision was made to protect the integrity of forms presented to the court with a JDF designation. This will allow the court to know that forms with a JDF designation contain only the JDF version’s information. Users can continue to download the PDF version of the forms from the court’s website for completion but modification of the form itself is not available. CBA-CLE will continue to provide selected JDF forms in our books and in Bradforms in a word processable format. PLEASE REMEMBER, if you modify a JDF form, you must remove the JDF designation from the footer or the court may reject your filing.

ADOPTION

  • JDF 495 – Instructions for Second Parent Adoption Without Civil Union (R8/16)
  • JDF 498 – Instructions for Kinship Adoption (R8/16)
  • JDF 499 – Instructions for Custodial Adoption (R8/16)
  • JDF 500 – Instructions for Stepparent Adoption (R8/16)

DOMESTIC RELATIONS

  • JDF 1321 – Motion to Convert Decree of Legal Separation to Decree of Dissolution of Marriage (R8/16)

NAME CHANGE

  • JDF 385 – Instructions for Filing a Change of Name following Conviction/Adjudication for a Felony (R8/16)
  • JDF 387 – Final Decree for Change of Name to Obtain Identity-Related Documents (R8/16)
  • JDF 388 – Instructions for Filing a Change of Name for an Individual 70 Years of Age or Older (R8/16)
  • JDF 389 – Petition for Change of Name (70 Years of Age or Older) (R8/16)
  • JDF 420 – Instructions for Filing a Change of Name (Minor) (R8/16)
  • JDF 421 – Petition for Change of Name (Minor Child) (R8/16)
  • JDF 432 – Instructions for Filing a Change of Name (Adult) (R8/16)
  • JDF 433 – Petition for Change of Name (Adult) (R8/16)

SEAL MY CASE

  • JDF 477 – Motion to Seal Criminal Justice Records (R8/16)
  • JDF 478 – Order to Seal Criminal Justice Records (R8/16)

For all of State Judicial’s JDF forms, click here.

Adoption Day Events Scheduled in Colorado Courts Throughout November

November is National Adoption Month, and to celebrate, Colorado’s courts are holding Adoption Day events throughout the month. This month, Colorado judges will finalize adoptions for 159 foster children. National Adoption Day is a national effort to raise awareness of more than 100,000 children in foster care waiting for permanent and loving families. It occurs on the Since its inception, nearly 54,500 children have been adopted as part of National Adoption Day. This year’s National Adoption Day will be November 21, 2015. The following events are occurring in Colorado’s courts throughout the month of November to celebrate National Adoption Day:

  • First Judicial District: 22 children will be adopted on Saturday, November 21, from 8:30 a.m. to noon.
  • Second Judicial District: 50 children will be adopted on Friday, November 13, from 9:30 a.m. to noon.
  • Eighth Judicial District: 20 children will be adopted on Friday, November 20, throughout the day.
  • Tenth Judicial District: 10 children will be adopted on Friday, November 20, throughout the morning.
  • Eleventh Judicial District: 8 children will be adopted as part of the National Adoption Day celebration.
  • Twelfth Judicial District: All families who finalized an adoption in November are invited to a reception on Wednesday, November 18.
  • Sixteenth Judicial District: A celebration for the families of all 12 children adopted in 2015 will be held on Tuesday, November 17.
  • Seventeenth Judicial District: 13 children will be adopted on Saturday, November 21, from 9 a.m. to noon.
  • Eighteenth Judicial District: 7 children will be adopted in Arapahoe County on Thursday, November 19, and in Douglas County, 4 adoptions were held on November 6 and 3 more will be held on November 20.
  • Nineteenth Judicial District: 13 children will be adopted throughout the day on Friday, November 20.
  • Twentieth Judicial District: 3 children will be adopted on Friday, November 20, throughout the morning. A public celebration of Adoption Day will be held following the hearings.
  • Twenty-First Judicial District: 6 children will be adopted on Friday, November 20, from 1 to 2 p.m.

To find out more about National Adoption Day and Colorado’s court participation, and for information about whether media coverage is permitted at the various events, click here.

New JDF Forms Issued in Adoption, Seal My Case, and More Categories

The Colorado State Judicial Branch has issued several revised JDF forms with September, October, and November release dates. Some of the modified forms include record sealing requests for Minor in Possession charges, applications to file in forma pauperis, and a motion and order for access to juvenile personal records. The forms are available for PDF download here or are available in Word format on the State Judicial website.

ADOPTION

  • JDF 534 – “Request for Access to Juvenile Personal Records” (revised 10/15)
  • JDF 535 – “Order for Good Cause re: Access to Juvenile Personal Records” (revised 10/15)

APPEALS

  • Form 6A – “Certificate of Compliance for Amicus Briefs” (revised 11/15)

BONDS

  • JDF 231 – “Waiver of Extradition as a Condition of Bail Bond” (revised 10/15)

CRIMINAL

  • JDF 208 – “Application for Public Defender, Court-Appointed Counsel, or Guardian ad Litem” (revised 10/15)

DOMESTIC RELATIONS

  • JDF 1409 – “Order to Terminate Child Support” (revised 09/15)

FILING FEES

  • JDF 205 – “Motion to File Without Payment of Filing Fee/Waive Other Costs Owed to the State and Supporting Affidavit” (revised 10/15)

MISCELLANEOUS

  • JDF 6 – “Request to Add Interest by Victim” (revised 09/15)

SEAL MY CASE

  • JDF 314(a) – “Order Regarding the Sealing of Records Related to Illegal Possession or Consumption of Ethyl Alcohol by an Underage Person (MIP)” (revised 10/15)
  • JDF 314(b) – “Order Regarding the Sealing of Records Related to Illegal Possession or Consumption of Ethyl Alcohol or Marijuana by an Underage Person (MIP)” (revised 10/15)

For all of State Judicial’s JDF forms, click here.

Forms to Seal Minor In Possession Cases, Relinquish Parental Rights, and More Amended

The Colorado State Judicial Branch released several amended forms in July and August, 2015. The amended forms were in the categories of adoption, DMV appeals, protection orders, relinquishing parental rights, and sealing cases. The forms are available here in PDF format and are available for download as Word documents from the State Judicial website.

ADOPTION

  • JDF 345 – “Order for Appointment of Confidential Intermediary” (revised 8/15)

DMV APPEAL

  • JDF 599 – “Complaint for Judicial Review of Denial, Cancellation, Suspension, or Revocation of a Driver’s License or Identification Card” (revised 8/15)

PROTECTION ORDERS

  • JDF 440 – “Mandatory Protection Order” (revised 7/15)

RELINQUISH PARENTAL RIGHTS

  • JDF 512 – “Relinquishment Interrogatory – Father” (revised 8/15)

SEAL MY CASE

  • JDF 305 – “Petition for Expungement of UDD” (revised 8/15)
  • JDF 313 – “Petition to Seal Records Related to Illegal Possession or Consumption of Ethyl Alcohol or Marijuana by an Underage Person (MIP)” (revised 7/15)
  • JDF 314 – “Order Regarding the Sealing of Records Related to Illegal Possession or Consumption of Ethyl Alcohol or Marijuana by an Underage Person (MIP)” (revised 7/15)
  • JDF 323 – “Instructions to File a Petition to Seal Records Related to Illegal Possession or Consumption of Ethyl Alcohol or Marijuana by an Underage Person (MIP)” (revised 7/15)

Click here for all of State Judicial’s JDF forms.

Adoption, Small Claims, Seal My Case JDF Forms Amended

In January 2014, the Colorado State Judicial Branch issued several revised JDF forms in many categories. Click here for a list of previously issued forms. Most recently, JDF forms have been amended in the adoption, miscellaneous, probate, small claims, and seal my case categories. 

Forms are available for download here as PDF documents, and are generally available in Word from the State Judicial Forms page.

ADOPTION

  • JDF 500 – “Instructions for Stepparent Adoption” (R1/14)
  • JDF 502 – “Petition for Stepparent Adoption” (R1/14)

MISCELLANEOUS

  • JDF 78 – “Motion and Order to Set Aside Default Judgment” (R1/14)

PROBATE

  • JDF 959 – “Instructions for Closing an Estate Informally” (R1/14)

SEAL MY CASE

  • JDF 302 – “Petition for Expungement of Records” (R1/14)
  • JDF 417 – “Petition to Seal Arrest and Conviction Records” (R1/14)
  • JDF 612 – “Petition to Seal Criminal Conviction Records” (R1/14)

SMALL CLAIMS

  • JDF 250 – “Notice, Claim, and Summons to Appear for Trial” (R1/14)
  • JDF 253 – “Motion and Order to Set Aside Dismissal/Default Judgment” (R1/14)

Click here for all of State Judicial’s JDF forms.

SB 14-051: Revising Requirements Regarding Access to Adoption Records

On Friday, January 10, 2014, Sen. Lois Tochtrop introduced SB 14-051 – Concerning Access to Records Relating to the Adoption of Children. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals and reenacts portions of the existing statute on access to adoption records to eliminate different standards of access by members of the adoption triad (consisting of the adoptee, the birth parents, and the adoptive parents) and their descendants based on the law in existence on the date the adoption was finalized. The bill retains the current policy that adoption records are confidential from the general public, unless the requesting party is eligible under the statute to access the records or unless the court finds good cause for release. The bill retains current policy that after a birth parent is deceased or an adult adoptee is deceased, eligible relatives may receive access to the adoption records.

Contact preference forms. The bill allows for the continued use of the contact preference form issued by the state registrar of vital statistics (state registrar), which form may be used by a birth parent to indicate whether he or she prefers to be contacted by an adoptee, the descendant of an adoptee, or a representative of either directly, through a third party, or not at all. Effective July 1, 2014, the state registrar shall not distribute a contact preference form that gives a birth parent the option to authorize or not authorize release of the original birth certificate to the adult adoptee, his or her descendants, or certain adoptive family members. Prior to releasing an original birth certificate to an individual eligible to access it, the state registrar or the custodian of records must conduct a search to determine whether a contact preference form was filed with the state registrar. If a contact preference form was executed prior to July 1, 2014, and the birth parent stated a preference not to authorize release of the original birth certificate, then the state registrar or other custodian of records may not release the original birth certificate to an adult adoptee or other eligible individual unless the birth parent rescinds or changes the contact preference form, upon mutual consent of two or more reunited parties, the birth parent is deceased, or a court orders its release. If one birth parent has authorized the release of the birth certificate and the other birth parent has not authorized the release, the state registrar or other custodian of records may only issue the original birth certificate with the name of the non-consenting parent redacted.

The state registrar shall maintain and make available to the public accurate statistics about the number of contact preference forms on file with the state registrar and how many of the forms state a preference for contact, no contact, or contact through a third party.

Access to adoption records by adult adoptees, their descendants, or adoptive family members. The bill retains current policy regarding parties who are eligible to apply for adoption records. A custodian of adoption records must release adoption records (including birth certificates) to an adult adoptee, an adoptive parent of a minor adoptee, a custodial grandparent of a minor adoptee, or the legal representative of any such individual. In addition, the custodian of records must provide direct access for inspection and copying of adoption records to a spouse of an adult adoptee, adult descendant of an adoptee, adult sibling or half-sibling of an adult adoptee, adoptive parent or grandparent of an adult adoptee, or the legal representative of any such individual, if the individual requesting access has the notarized written consent of the adult adoptee or if the adult adoptee is deceased.

Access to original birth certificates by birth parents. Upon request, the state registrar must provide to a birth parent who relinquished a child for adoption a copy of the unaltered original birth certificate that the birth parent signed or was named in.

Access to death certificates. The state registrar is authorized to conduct a search of death certificates to determine whether a birth parent or an adoptee is deceased and to provide a copy of any death certificate found to the requesting eligible individual. The state registrar may collect fees for conducting a search and for making copies and shall transmit any fees to the state treasurer who must credit the fees to the vital statistics records cash fund.

The legal custodian shall not release records unless the individual requesting access is eligible to access the records and provides proof of personal identification. The legal custodian may charge reasonable fees for copying records.

The bill retains the existing policy that allows identifying information in records of child placement agencies to remain confidential based on prior written statements of birth parents on file with the child placement agency or the court. Subject to the provisions of this bill, any party may seek direct contact with another party or use the services of a confidential intermediary, a licensed child placement agency that agrees to conduct a search, or the voluntary mutual consent registry operated by the state registrar. The bill makes conforming amendments. On Jan. 29 the Judiciary Committee heard testimony but did not vote on the bill.

Probate, Criminal, Adoption JDF Forms Amended by State Judicial

The Colorado State Judicial Branch amended several JDF forms in November and December. Forms were amended in the adoption, criminal, fees, name change, probate, and protection order categories.

Forms are available here in PDF format and generally are also available as Word documents on the State Judicial website.

ADOPTION

  • JDF 517 – “Motion and Affidavit for Publication of Notice” (R11/13)
  • JDF 525 – “Affidavit of Abandonment” (R11/13)
  • JDF 526 – “Affidavit of Diligent Efforts” (R11/13)

CRIMINAL

  • JDF 237 – “Instructions to File an Application for an Order of Collateral Relief” (R11/13)
  • JDF 238 – “Application for an Order of Collateral Relief” (R11/13)
  • JDF 239 – “Order of Collateral Relief” (R11/13)
  • JDF 718 – “Personal Service Affidavit” (R11/13)

FEES

  • JDF 205 – “Motion to File Without Payment and Supporting Financial Affidavit” (R11/13)

NAME CHANGE

  • JDF 420 – “Instructions for Filing for a Change of Name (Minor)” (R11/13)
  • JDF 432 – “Instructions for Filing a Change of Name (Adult)” (R11/13)

PROBATE

  • JDF 714 – “Affidavit Regarding Due Diligence and Proof of Publication” (R11/13)
  • JDF 732 – “Trust Registration Statement” (R11/13)
  • JDF 786 – “Instructions to File Petition to Transfer Adult Guardianship and/or Conservatorship from Colorado to Receiving State” (R11/13)
  • JDF 821 – “Affidavit of Acceptance of Appointment by Written Instrument as Guardian for Minor” (R11/13)
  • JDF 999 – “Collection of Personal Property by Affidavit” (R11/13)

PROTECTION ORDERS

  • JDF 395 – “Instructions for Restrained Person – Motion to Modify/Dismiss Protection Order” (R12/13)
  • JDF 397 – “Motion to Modify or Dismiss Temporary or Permanent Protection Order” (R12/13)
  • JDF 404 – “Affidavit Regarding Children” (R11/13)

SEAL MY CASE

  • JDF 417 – “Petition to Seal Arrest and Criminal Records Other Than Convictions” (R11/13)

For all of State Judicial’s forms, click here.

JDF Instruction Forms Revised in Several Categories by State Judicial

The Colorado State Judicial Branch revised several JDF instructions in July across several categories. Additionally, the Affidavit of Service form (JDF 98) was revised, which affects many categories.

NOTE: Forms in the Domestic Relations and Probate categories will be addressed separately.

Click the links below to download the forms, or visit the Colorado State Judicial Branch website.

ADOPTION

  • JDF 495 – Instructions for Second Parent Adoption (revised 7/13)
  • JDF 496 – Instructions for Adult Adoption (revised 7/13)
  • JDF 497 – Instructions for Validation of Foreign Adoption (revised 7/13)
  • JDF 498 – Instructions for Kinship Adoption (revised 7/13)
  • JDF 499 – Instructions for Custodial Adoption (revised 7/13)
  • JDF 500 – Instructions for Stepparent Adoption (revised 7/13)

APPEALS

  • JDF 126 – Instructions for Filing a County Court Civil or Small Claims Appeal (revised 7/13)
  • JDF 221 – Instructions for Filing a County Court Criminal Appeal (revised 7/13)

CRIMINAL

  • JDF 460I – Instructions to Discontinue Sex Offender Registration (revised 7/13)
  • JDF 476 – Instructions to Discontinue Sex Offender Registration Juvenile (revised 7/13)

EVICTIONS & FORECLOSURES

  • JDF 100 – Instructions for Forcible Entry & Detainer (FED)/Evictions (revised 7/13)
  • JDF 140 – Instructions for Mobile Home FED (revised 7/13)
  • JDF 620 – Instructions for Filing a Response to a Rule 120 Notice (revised 7/13)

GARNISHMENTS & JUDGMENTS

  • JDF 137 – Instructions to File a Foreign Judgment (revised 7/13)
  • JDF 82 – Instructions on How to Collect a Judgment and File Writ of Garnishment (revised 7/13)
  • JDF 112 – Instructions for Reviving a Judgment (revised 7/13)

MISCELLANEOUS

  • JDF 122 – Instructions for Issuance of Contempt Citation (revised 7/13)
  • JDF 86 – Instructions for Issuing an Out-of-State Subpoena (revised 7/13)
  • JDF 79 – Instructions for Issuing a Subpoena (revised 7/13)

MONEY CASES

  • JDF 110 – Instructions for County Court Civil Cases (Money Demand) (revised 7/13)
  • JDF 96 – Instructions for Filing an Answer and/or Counterclaim (revised  7/13)
  • JDF 248 – Small Claims Instructions (revised 7/13)
  • JDF 251 – Notice, Claim, and Summons to Appear for Trial (revised 7/13)
  • JDF 122 – Instructions for Issuance of Contempt Citation (revised 7/13)
  • JDF 137 – Instructions for Filing a Foreign Judgment (revised 7/13)
  • JDF 79  – Instructions for Issuing a Subpoena (revised 7/13)
  • JDF 131 – Instructions for an Agistor’s Lien (revised 7/13)
  • JDF 115  – Instructions for Replevin (revised 7/13)
  • JDF 112 – Instructions for Reviving a Judgment (revised 7/13)

NAME CHANGE

  • JDF 432 – Instructions for Filing a Change of Name – Adult (revised 7/13)
  • JDF 420 – Instructions for Filing a Change of Name – Minor (revised 7/13)
  • JDF 385 – Instructions for Filing a Change of Name to Obtain Identity Related Documents (revised 7/13)

PROTECTION ORDERS

  • JDF 400 – Instructions for Obtaining a Protection Order (revised 7/13)

SEALING CASES

  • JDF 323 – Instructions to File a Petition to Seal Underage Alcohol Conviction (revised 7/13)
  • JDF 416 – Instructions to File a Petition to Seal Arrest and Criminal Records (revised 7/13)
  • JDF 611 – Instruction to Seal Criminal Conviction Records (revised 7/13)

SMALL CLAIMS

  • JDF 248 – Small Claims Instructions (revised 7/13)
  • JDF 251 – Notice, Claim, and Summons to Appear for Trial (revised 7/13)

Updated JDF Forms Available in Adoption, Appeals, and Domestic Categories

Three updated JDF forms are now available from the Colorado State Judicial Branch, in the areas of adoption, civil appeals, and domestic relations.

  • JDF 496, “Instructions for Adult Adoption,” in the Adoption category, was revised in February 2013.
  • JDF 126, “Instructions for Filing a County Court Civil Appeal or Small Claims Appeal,” in the Appeals category, was revised in March 2013.
  • JDF 1302, “Order for Publication of Summons/Service by Certified Mail/Publication by Consolidated Notice,” in the Divorce & Family Matters category, was revised in February 2013.

All of State Judicial’s JDF forms are available here.

The State of Kansas Wants a Sperm Donor To Pay Child Support. Could This Happen in Colorado?

Laura Koupal PhotoKansas, 2009. William Marotta provided sperm to a lesbian couple, Angela Bauer and Jennifer Schreiner, to enable them to have their first child together. Schreiner conceived a child, a girl, by artificial insemination done at home with Marotta’s sperm. Marotta has never had a relationship with the child.

Several years later Bauer and Schreiner broke off their relationship but both women continued to co-parent and provide for their child. Schreiner applied for state assistance for the child. Although Schreiner was listed as the sole parent on the birth certificate for the child, the Kansas Department of Children and Families required that she list a father’s name. Schreiner listed Marotta as the father and the state is now ordering Marotta to pay child support.

It is being reported that the parties had entered into a sperm donor agreement prior to the insemination. According to the reports, the donor agreement contained language stating that Marotta waived any parental rights and that Bauer and Schreiner agreed to indemnify Marotta and hold him harmless for any child support payments demanded of him by any other person or entity, public or private.

The state of Kansas is arguing that it does not recognize the agreement because the artificial insemination was not performed by a licensed physician. Kansas statutory law provides that the donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman. Kan. Stat. Ann §23-2212(f).

This story has made national news in the last week. Colorado sperm donors and intended parents may be wondering if a similar claim could be brought in Colorado. The short answer is yes. Colorado statutory law has a similar requirement stating that the assisted reproductive procedure must be done under the supervision of a licensed physician or advanced practice nurse. Specifically, the statute states, in part: “If, under the supervision of a licensed physician or advanced practice nurse, and with the consent of her husband, a wife consents to assisted reproduction with an egg donated by another woman, to conceive a child for herself, not as a surrogate, the wife is treated in law as if she were the natural mother of a child thereby conceived. Both the husband’s and the wife’s consent must be in writing and signed by each of them. The physician or advanced practice nurse shall certify their signatures and the date of the assisted reproduction and shall file the consents with the department of public health and environment, where they shall be kept confidential and in a sealed file; however, the physician’s failure to do so does not affect the father and child relationship or the mother and child relationship.” C.R.S. §19-4-106. Colorado has the added requirement that the recipient of the sperm must be married.

However, Colorado does allow second parent adoptions. After a child is born to a sole legal parent, same-sex couples may petition the court to have the other non-biological parent added to the birth certificate. The child’s two legal parents responsible for support and care would then be the biological mother and the adoptive mother, not the sperm donor.

Laura Koupal founded Koupal Law Firm, P.C. this year. Prior to starting her own firm, Laura spent nine years in private practice representing clients in assisted reproductive technology matters, complex divorce litigation, non-traditional family formation and dissolution, adoption and estate planning matters. Laura also completed a one-year clerkship with the Honorable Christina M. Habas of Denver District Court following law school.

Laura holds a Bachelor of Science degree from the University of Colorado and a Juris Doctor from the University of Denver. She is a Fellow of the American Academy of Assisted Reproductive Technology Attorneys, a professional Member of the American Society for Reproductive Medicine and RESOLVE, a Member of the Colorado Bar Association Family Law Section and the Denver Bar Association, and a Member of the American Bar Association Assisted Reproductive Technology Committee. Laura regularly writes and speaks on the issues of family law and assisted reproductive technology law. You can visit her website at www.koupallaw.com.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Tenth Circuit: Preadoptive Parents May Possess Liberty Interest in Familial Association

The Tenth Circuit issued its opinion in Elwell v. Byers on Wednesday, November 14, 2012.

The Elwells had been foster parents to T.S. since he was three months old and were in the process of adopting him. After receiving a report that Ms. Elwell had emotionally abused a second foster child, the state department of Social and Rehabilitative Services (SRS) decided to remove that child and terminate the Elwell’s foster care license. Officials then removed T.S. from the Elwell’s home with no prior notice.

A state court found that SRS should have notified the Elwells prior to the removal but did not consider returning T.S. to the Elwells until he had spent a year in another placement. After the state court refused to order the return of T.S. because of the disruption it would cause him, the Elwells filed a 42 U.S.C. § 1983 action against two SRS employees. The employees claimed qualified immunity and the district court granted summary judgment on a substantive due process claim, but denied it on a procedural due process claim.

Kansas law required 30 days notice before a foster child such as T.S. could be removed from his placement and provided for a court hearing at the foster parents’ request. The Tenth Circuit held that because this law mandated procedures, not outcomes, it did not convey a protected liberty interest to the Elwells.

The court did, however, find the Elwells had a protected liberty interest in familial association with T.S. based on the Due Process Clause of the Fourteenth Amendment. While typical foster parents do not possess such an interest, the fact that T.S. had been cared for nearly his entire life by the Elwells and that they were close to adopting him made them closer to being adoptive parents than foster parents. The court also found the Elwell’s constitutional rights were violated by T.S.’s removal without advance notice. Because no other Tenth Circuit or Supreme Court case had held that preadoptive parents have a liberty interest, the right was not clearly established, so qualified immunity applied. The court reversed the district court’s denial of summary judgment for the defendants.