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In re Parental Responsibilities of A.C.H.

Court of Appeals of Colorado, Fifth Division

March 21, 2019

In re the Parental Responsibilities of A.C.H. and A.F., Children, and Concerning Anastasia C. Magana, Appellant, and Justin Lee Hill, Appellee.

          El Paso County District Court No. 16DR30207 Honorable Eric Bentley, Judge

          Announced March 21, 2019 The Kanthaka Group, John Scorsine, Colorado Springs, Colorado, for Appellant

          No Appearance for Appellee

          Sherman & Howard L.L.C., Jordan M. Fox, Denver, Colorado; Polidori, Franklin, Monahan, & Beattie L.L.C., Peter L. Franklin, Lakewood, Colorado, for Amicus Curiae the Colorado Chapter of the American Academy of Matrimonial Lawyers

          OPINION

          RICHMAN, JUDGE

         ¶ 1 Today, more and more children are a part of nontraditional families - they are raised by at least one person not biologically related to them, but who acts as a parent. Commonly referred to as a psychological parent, an unrelated person who meets statutory criteria may seek an order for parenting time and decision-making responsibility under section 14-10-123(1)(b), (c), C.R.S. 2018. See In re Parental Responsibilities Concerning E.L.M.C., 100 P.3d 546, 559 (Colo.App. 2004) (A psychological parent is "someone other than a biological parent who develops a parent-child relationship with a child through day-to-day interaction, companionship, and caring for the child." (quoting In re Marriage of Martin, 42 P.3d 75, 77-78 (Colo.App. 2002))). In fact, this "statutory grant of standing to a non-parent to seek legal custody of a child constitutes legislative recognition of the importance of 'psychological parenting' to the best interests of a child." In re Parental Responsibilities Concerning V.R.P.F., 939 P.2d 512, 514 (Colo.App. 1997). Recognition as a psychological parent can occur through a contested proceeding, see, e.g., In re Parental Responsibilities Concerning C.C.R.S., 892 P.2d 246 (Colo. 1995), or can be achieved through agreement between the natural/adoptive and psychological parents.

         ¶ 2 But the statute addressing child support, section 14-10-115, C.R.S. 2018, does not define the term "parent," let alone mention a psychological parent. So it comes as little surprise that we are now asked to decide whether a psychological parent, who fought for and obtained a parenting time and decision-making responsibility order for his ex-girlfriend's biological child, can also be ordered to pay child support on behalf of that child. For the reasons discussed below, we answer this question "yes." As a result, we reverse the order denying child support from a psychological parent and remand the case to the district court for additional proceedings.

         I. Relevant Facts

         ¶ 3 In 2006, Anastasia C. Magana (mother) and Justin Lee Hill (Hill) became romantically involved and immediately moved in together. At that time, mother had a three-month-old son, A.F., whose biological father had been absent since his birth. In 2007, mother gave birth to A.C.H., a daughter fathered by Hill, and all of them lived together as a family until 2010 when the couple broke up.

         ¶ 4 Following their split, the parties agreed to and followed an equal parenting time schedule with both children.

         ¶ 5 In 2016, seeking permission to relocate to Texas, mother petitioned the district court for an allocation of parental responsibilities with respect only to A.C.H., the parties' biological child. Hill, asserting that he was A.F.'s psychological parent, separately filed his own case seeking an allocation of parental responsibilities for A.F., moved to consolidate the two petitions, and argued for parental responsibilities as to both children, including payment of child support (to him). The district court consolidated the two cases.

         ¶ 6 Hill opposed the children's relocation and sought to be named their primary residential parent. He expressed a commitment to provide the children with a stable, loving, and more permanent home in Colorado. At Hill's request, the district court appointed a parental responsibility evaluator (PRE), a licensed mental health professional, to investigate, report, and make recommendations on parenting time. The district court subsequently granted an unopposed motion for a supplemental PRE.

         ¶ 7 The parties eventually stipulated, and the PREs agreed, that Hill was A.F.'s psychological parent, that mother could relocate to Texas, that the children should not be separated, and that the district court should enter the same parental responsibilities order for both children.

         ¶ 8 After a three-day permanent orders hearing, the district court

• noted that neither party pursued a paternity finding under the Uniform Parentage Act, sections 19-4-101 to -130, C.R.S. 2018;
• determined that Hill was A.F.'s psychological parent under section 14-10-123;
• found that "the children [were] well bonded and attached to both parents";
• concluded that it was in the children's best interests for them to reside primarily with mother in Texas, but allocated substantial parenting time to Hill during school breaks and over the summer, with a total of 107 overnights; and
• further concluded that mother should have sole decision-making responsibility as to education and extracurricular activities for the children, but the parties should share joint ...

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