In 2010, I accepted a case through the Colorado Pro Bono Appellate Program to represent a client in her efforts to get the Colorado supreme court to grant certiorari on her custody case. I filed the petition for writ of certiorari in October 2010, and after both an answer and a reply were filed, the court granted certiorari. I filed an opening brief in August 2011, and we had oral argument on March 7, 2012. You can listen to the oral arguments on the supreme court’s website.
Today, almost two years after getting involved in the case, we received a unanimous decision from the supreme court in my client’s favor. Because the case involves custody of a minor child, it is called In the Interest of Child: B.B.O. This case considered whether a parent must consent to a nonparent caring for a child before a nonparent may establish standing to petition for an allocation of parental responsibilities (custody) under Colorado law. In a concise, en banc opinion, the supreme court concludes that the plain language of the statute does not require consent and that a biological parent’s fundamental liberty interest in the care, custody, and control of a child does not require consent to be read into the statute.
This case will have important implications for psychological parents throughout Colorado and reaffirms the important role that psychological parents play in the lives of children. By requiring parental consent to nonparent standing, the court of appeals effectively precluded a large class of nonparents from having a place at the table in deciding what is in the best interests of children. Although the supreme court’s decision does not comment on the merits of the case (because that issue was not before the supreme court), it removes that impediment and makes it easier for nonparents to be part of the discussion of what is in children’s best interests.
On an interesting side-note, this also provides a bit of insight into how long an appeal can take. Children’s cases are generally expedited, meaning they are supposed to work through the system more quickly than other appeals. Even with that in mind, just the supreme court appellate process took approximately 21 months. As noted in the opinion, this case started when the minor child’s father died in 2008, approximately four years ago.
The Colorado supreme court has done citizens of Colorado a great service by establishing the pro bono appellate program, which will hopefully allow more individuals to have their cases appealed. The court has also tried diligently in recent years to move cases through the system more quickly and efficiently. Even with those efforts, clients looking to appeal a case must be prepared to wait for relief.
For Ellis Wright & Ewegen, this case is also important as we work to build our appellate practice. I have always loved appellate law, which is one reason I became involved in the pro bono appellate program. Although this was my first case before the supreme court, it was by no means my first appeal, and I look forward to working on many more. Appellate law is an interesting challenge because the decisions we ultimately receive affect so many more people than our individual clients. The precedents established have far-reaching implications, and practicing appellate law allows attorneys to help shape and define the law in ways that trial practice do not.