August 23, 2019

Colorado Court of Appeals: Nonparent Has Standing to Request Parental Responsibilities, but Court Must Apply Clear and Convincing Evidence Standard to Justify Allocation of Parental Responsibilities

The Colorado Court of Appeals issued its opinion in In re the Parental Responsibilities of E.S. and Concerning Lauzon on May 12, 2011.

Dissolution of Marriage—Parental Responsibilities—Nonparent—Standing—Clear and Convincing Evidence.

In this post-dissolution of marriage matter concerning parental responsibilities for E.S., who is the child of Auriel Lauzon and Timothy Smith, Smith appealed from the order allocating primary parenting time to Laura Silvernail, a nonparent. The portion of the order finding that Silvernail has standing was affirmed. The remainder of the order was vacated and the case was remanded for further findings.

Smith and Lauzon’s marriage was dissolved in 2006, and Lauzon was allocated majority parenting time with E.S. In 2008, Lauzon moved to relocate out of state. Smith objected, contending that E.S. should remain in Colorado. Silvernail, who is the adoptive parent of two other children of Smith and Lauzon, moved to intervene, contending that E.S. spent substantial time with her and with E.S.’s siblings, and that she was concerned that the proposed relocation would prevent E.S. from continuing to do so in the future. The trial court ordered that (1) Silvernail has standing to request parental responsibilities for E.S.; and (2) it was in E.S.’s best interests for Silvernail to be her primary residential custodian, with limited parenting time for Smith and Lauzon. Smith’s appeal followed.

Smith contended that the trial court erred by concluding that Silvernail has standing to request parental responsibilities for E.S. It is undisputed that E.S. was living with Silvernail, and not with either parent, when Silvernail sought parental responsibilities for her. It also is undisputed that Smith requested that Silvernail take E.S. into her home and assume physical care of E.S. under temporary guardianship. Accordingly, Silvernail had standing under CRS § 14-10-123(1)(b).

Smith also contended that the trial court erred by allocating primary parental responsibilities to Silvernail, over his objections, without recognizing his constitutional preference as the child’s parent and without finding by clear and convincing evidence that doing so was in the child’s best interests. The court’s order does not indicate that the court used a clear and convincing evidence standard of proof or found special factors to justify its allocation of parental responsibilities. Accordingly, that part of the order was vacated and the case was remanded for further findings.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on May 12, 2011, can be found here.

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