Determining Abandonment

I have often had clients ask me about the legal standards for a determination of abandonment in Colorado.  A new Colorado supreme court case sheds some light on the subject by clarifying that a determination of abandonment must consider the totality of the circumstances.  The supreme court also decided that the determination of abandonment by a trial court is a factual determination that should only be disturbed if it constitutes an abuse of discretion.  D.P.H. v. J.L.B., 10 SC 104 (Colo. 2011).  Interestingly, the supreme court also clarified that filing pleadings asking for parenting time is not necessarily enough to preclude a finding of abandonment.

This issue often arises when a parent wants a new step-parent to be able to adopt a child.  In Colorado, a child is available for adoption without the consent of the other parent if there is a lack of financial support or abandonment for a period of one year.  C.R.S. § 19-5-203(1)(d)(II).  In the D.P.H. case, the father had had no contact with the child for several years, but testified that he believed the mother had interfered with his ability to contact the child.  The juvenile court believed the mother’s testimony that she had not interfered with the father’s ability to see the child and that the father always knew how to contact the child.  The juvenile court also believed that the weight of the evidence demonstrated abandonment by the father, despite the pleadings he filed in the domestic court seeking to enforce parenting time.  The court of appeals reversed the trial court, concluding that the filing of the pleadings precluded a finding of abandonment.

On appeal, the supreme court clarified that a finding of abandonment requires a consideration of the totality of the circumstances to determine whether the parent’s intent was to abandon the child.  Ultimately, the supreme court remanded to the trial court to make express findings regarding whether the totality of the circumstances indicate that the father intended to abandon the child.

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