Legal Allies: Psychological Parent Standing for Allocation of Parental Responsibilities

Factual Scenario:  Jill was in a relationship with her same-sex partner, Barbara, and they raised Barbara’s daughter, Emily, together as a family in Colorado.  Jill and Barbara never entered into a Colorado civil union, and they were never legally married in another state.  Emily’s father was not in the picture.  During their relationship, Emily referred to both Jill and Barbara as “mom.”  Recently, Jill and Barbara ended their relationship.  Now, Barbara is refusing to let Jill spend time with Emily.  Barbara told Jill she has no legal parental rights.  Is there anything that Jill can do?

If you find yourself in a similar situation as Jill, you may be able to successfully make a psychological parent argument before a Colorado family court.  A non-legal parent “may be deemed a psychological parent for the purposes of seeking and receiving an award of parental responsibilities. . . .”  In re E.L.M.C., 100 P.3d 546, 559 (Colo. App. 2004).  In general, a psychological parent who had the physical care for a child for 182 days or more may file a petition with the court for allocation of parental responsibilities.  Colo. Rev. Stat. § 14-10-123(1)(c)(2013).  Further, the petition for allocation of parenting time must be filed within 182 days after the termination of physical care.

When assessing physical care, Colorado courts consider “the nature, frequency, and duration of contacts between the child and the nonparent, including the amount of time the child has spent in the actual, physical possession of the nonparent and the [legal] parent.”  In re L.F., 121 P. 3d 267, 270-271 (2005).  To illustrate, in L.F., the Colorado Court of Appeals denied a grandmother’s petition for parenting time because “the terms of the [physical] care were subject to the discretion and direction of the parents” and meant to provide assistance to the legal parents.  Id.at 273.  On the other hand, in E.L.M.C., the court determined that the same-sex partner of an adoptive parent physically cared for the child because the couple discussed having a family together, lived together for six years, raised the child as one family with two parents, and the child considered both parents as her mother.  E.L.M.C. 100 P.3d at 549-550.   It should be noted that the nonparent’s physical care does not have to be uninterrupted or exclusive from the legal parent’s care.  L.F., 121 P.3d at 270-271.

Colorado courts will also assess whether the “nonparent assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation.”  E.L.M.C., 100 P.3d at 560.  In E.L.M.C., the Colorado Court of Appeals found that the nonparent contributed to the support of her ex-domestic partner’s adoptive child because she shared the financial cost of supporting the child and shared in all major decisions involving the child’s life including daycare when the parents’ worked.  Id. at 550.  Lastly, and perhaps most importantly, Colorado courts assess whether the psychological, nonparent’s role resulted in a sufficient bond between the nonparent and child wherein the relationship formed was dependent and parental in nature.  E.L.M.C. 100 P.3d at 560, 562.

In sum, when determining whether a nonparent is a psychological parent with standing, Colorado courts weigh the following three factors:  (1) whether the nonparent physically cared for the child for at least 182 days (living in the same home as a family with the child will usually meet this factor); (2) whether the nonparent took on significant parental responsibilities such as child care, education, childhood development, and child support with no financial reimbursement expectations; and (3) whether the nonparent’s role resulted in a sufficient bond between the nonparent and child wherein the relationship formed is dependent and parental in nature.[1]  E.L.M.C., 100 P3d at 560, 562.  So long as the these factors are sufficiently met and the petition for parental responsibilities is timely filed with the court (i.e. within 182 days from parental care termination), the court will grant the psychological parent standing to pursue parental responsibilities.

Standing is only the first hurdle that the psychological parent must overcome.  “Standing” can be generally thought of as a person’s ability to take an action before the court.  In terms of psychological parent standing, the court must first determine whether the nonparent qualifies as a psychological parent.  Once the standing hurdle has been successfully crossed, the court will then assess factors related to the best interests of the child in determining whether or not to allocate parental responsibilities (parenting time and parental decision-making) to the psychological parent.  The best interest of the child factors that the psychological parent must meet will be the topic of our next editorial piece.  Stay tuned.

The Law Offices of Frazer & Parks, LLC