On May 12, 2011, the Colorado court of appeals decided a case (In re the Parental Responsibilities of E.S.) involving standing of non-parents to seek parental responsibilities over the objections of the child’s biological parent. This issue is of particular interest to me right now, since that is the issue on which the Colorado supreme court granted certiorari in the appellate case I am handling through the Colorado Bar Association’s Pro Bono Appellate Program. In this new case, the court of appeals provides a great overview of the existing Colorado law regarding standing of non-parents and of the Colorado law regarding the allocation of parental responsibilities when a non-parent does have standing to seek parental responsibilities.
On the standing issue, the court concluded that the non-parent had standing in this case because the parent was not in the physical care of either parent at the time she sought an allocation of parental responsibilities. C.R.S. section 14-10-123(1)(b). The court of appeals noted that a court trying to determine who has physical care of a child “considers the nature, frequency, and duration of contacts between the child and the parent and between the child and the nonparent, including the amount of time the child spends in the actual, physical care of each.” In re the Parental Responsibilities of E.S., 09CA2088, announced May 12, 2011. The court also noted, however, that “the manner by which the child came to be under the physical care of the nonparent” also matters and that “the nonparent must show that the parent voluntarily permitted the nonparent to assume the responsibility of physically caring for the child.” In re the Parental Responsibilities of E.S., 09CA2088, announced May 12, 2011.
Regarding the allocation of parental responsibilities, the court analyzed the body of post-Troxel case law, restating the principle that a parent is “entitled to a presumption that he or she has a first and prior right to the primary care of his or her child.” In re the Parental Responsibilities of E.S., 09CA2088, announced May 12, 2011. That presumption is rebuttable by clear and convincing evidence.