Tension between parents and non-parents regarding children seems to be the hot-button issue facing family law courts in Colorado over the last few years. On April 12, 2012, the Colorado court of appeals issued another published opinion addressing that conflict when it decided In re the Parental Responsibilities Concerning B.R.D. The case involved a dispute between biological parents and a couple with whom their son was living. The parents and the couple had previously agreed that the couple would have sole decision-making and majority parenting time with the boy. When Father changed his mind, the trial court elected not to give Father the Troxel presumption that he makes decisions in the best interests of his biological child.
The court of appeals reversed the trial court after applying the decision and rationale in D.I.S. and concluding that the Troxel presumption in favor of biological parents applies even when the child resides primarily in the care of a non-parent. In reaching this conclusion, the court of appeals reasoned that the burden of proof rests with the non-parent in a disagreement between parents and non-parents even when the modification sought by the parent would normally place the burden on the parent to show endangerment. In this case, that meant that the trial court should have given special weight to Father’s request in the form of a presumption that Father’s request should occur even if that change would normally require Father to prove endangerment. Then, the court must give ample opportunity to the non-parents to prove that the modification is in the child’s bests interests and that the existing parenting plan does not endanger the child. The court further clarified that the non-parents must prove best interests and non-endangerment by a preponderance of the evidence.