In re Parental Responsibilities of A.C.H. and A.F

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                              March 21, 2019

                                2019COA43

No. 17CA2105, Parental Responsibilities Concerning A.C.H. —
Family Law — Parental Responsibilities — Psychological Parent
— Child Support

     A division of the court of appeals considers whether a

“psychological parent” — an unrelated person who has received

parenting time and decision-making responsibility for a

nonbiological child under section 14-10-123(1)(b), (c), C.R.S. 2018

— may also be ordered to pay child support to the biological parent

of that child. The division concludes that section 14-10-115, C.R.S.

2018, permits a district court to impose a child support obligation

on a psychological parent when that person sought the legal right to

the same parental responsibilities as a natural or adoptive parent,

and was granted parental responsibilities under section 14-10-123.
COLORADO COURT OF APPEALS                                           2019COA43


Court of Appeals No. 17CA2105
El Paso County District Court No. 16DR30207
Honorable Eric Bentley, Judge


In re the Parental Responsibilities of A.C.H. and A.F., Children,

and Concerning Anastasia C. Magana,

Appellant,

and

Justin Lee Hill,

Appellee.


                        ORDER REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                 Division V
                        Opinion by JUDGE RICHMAN
                        Román and Berger, JJ., concur

                          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
¶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




                                    1
 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.


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¶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.




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¶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

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                extracurricular activities for the children, but the

                parties should share joint decision-making as to all

                other major decisions.

¶9     The court reserved the issue of child support and asked for

  supplemental briefing.

¶ 10   Later, in a separate, detailed, and thoughtfully written order,

  the district court surveyed the reported case law in Colorado and

  concluded that it could not impose a child support obligation on

  Hill for the benefit of his psychological child, A.F., absent a “legal

  parent-child relationship or some other narrowly defined

  exceptional circumstance that is not present here.”

¶ 11   Mother appeals only that portion of the district court’s

  judgment declining to award child support for A.F. Hill has not

  filed a brief or appeared in our court. However, we have invited and

  received an amicus brief supporting Hill’s position filed by the

  Colorado Chapter of the American Academy of Matrimonial

  Lawyers.

                               II. Discussion

¶ 12   Mother contends that as A.F.’s psychological parent, Hill is on

  equal footing with her as a biological parent. This, she suggests,


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  means that he also has the responsibility to pay child support for

  A.F. We agree only to the extent that a psychological parent status

  may, under the circumstances present here, trigger an obligation to

  provide support under section 14-10-115.1

¶ 13   The amicus brief correctly argues that there is no statutory

  provision expressly imposing financial obligations on a

  psychological parent. In relevant part, section 14-10-115(2)(a)

  provides that in a proceeding for child support the district court

  “may order either or both parents owing a duty of support to a child

  . . . to pay an amount reasonable or necessary for the child’s

  support.” (Emphasis added.) Section 14-10-115, however, does not

  define the term “parent.” 2


  1 We acknowledge that a psychological parent does not generally
  share equal footing with a biological parent. See Troxel v. Granville,
  530 U.S. 57, 66 (2000) (“[T]he Due Process Clause of the Fourteenth
  Amendment protects the fundamental right of parents to make
  decisions concerning the care, custody, and control of their
  children.”).
  2 Other statutes define “parent.” See § 13-92-102(4), C.R.S. 2018

  (The statutory provision creating the Office of the Respondent
  Parents’ Counsel defines parent as “a natural parent of a child, . . .
  a parent by adoption, or a legal guardian.”); § 15-14-102(9), C.R.S.
  2018 (probate code defines parent as one whose parental rights
  have not been terminated); § 19-1-103(82)(a), C.R.S. 2018
  (children’s code defining parent as either a natural parent of a child
  or a parent by adoption); § 22-7-302(6), C.R.S. 2018 (The statute

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¶ 14   The amicus brief also correctly argues that no reported

  decision by Colorado appellate courts expressly concludes that

  child support must be paid to a biological parent by a psychological

  parent. But no reported decision addresses whether a

  “psychological parent” comes within the statutory term “parent” as

  applied in section 14-10-115.

¶ 15   Though neither the statute nor any reported decision expressly

  imposes financial obligations on a psychological parent, we find

  support for the proposition that such obligations may be imposed in

  the statute and in case law precedent.

¶ 16   “When interpreting a statute, we strive to give effect to the

  legislative purposes by adopting an interpretation that best

  effectuates those purposes.” In re Marriage of Joel & Roohi, 2012

  COA 128, ¶ 18. Section 14-10-115(1)(a) outlines the statute’s

  purpose:




  creating the Colorado State Advisory Council for Parent Involvement
  in Education defines parent as “a child’s biological parent, adoptive
  parent, or legal guardian or another adult person recognized by the
  child’s school as the child’s primary caregiver.”); § 22-33-
  104.5(1)(b), C.R.S. 2018 (Under school attendance law of 1963,
  “‘[p]arent’ includes a parent or guardian.”).

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            (I) To establish as state policy an adequate
            standard of support for children, subject to the
            ability of parents to pay;

            (II) To make awards more equitable by
            ensuring more consistent treatment of persons
            in similar circumstances; and

            (III) To improve the efficiency of the court
            process by promoting settlements and giving
            courts and the parties guidance in establishing
            levels of awards.

  The first two purposes are relevant to our analysis. Imposing

  financial obligations on a psychological parent helps to establish an

  adequate standard of support. And when a psychological parent

  occupies circumstances equivalent to those of a legal parent, it is

  equitable to impose financial obligations on him or her, pursuant to

  the factors outlined in the statute. To that end, our courts have

  interpreted the term “parent,” as used in the child support statute,

  to include adoptive parents. See In re Marriage of Ashlock, 629 P.2d

  1108, 1109 (Colo. App. 1981).

¶ 17   Divisions of this court have upheld orders that child support

  be paid by a person who is neither a biological nor an adoptive

  parent. We conclude that a survey of those decisions, as well as

  those reversing orders awarding child support against nonbiological



                                    8
  parents, provides guidance and informs how we should decide this

  case.

¶ 18      In People in Interest of P.D., 41 Colo. App. 109, 580 P.2d 836

  (1978), the district court permanently terminated the parental

  rights of the child’s natural parents and awarded a husband and

  wife legal and physical custody of the child, anticipating that they

  would complete adoption proceedings. See id. at 111, 580 P.2d at

  837. But before any adoption proceedings were initiated, the

  custodial parents filed a dissolution action. See id. The resulting

  decree of dissolution awarded custody of the child to the wife and

  required the husband to pay child support, despite the husband’s

  request to terminate custody and the accompanying child support

  obligation. See id.

¶ 19      In reversing, the division held that because the husband was

  only the child’s legal custodian, and not an adoptive parent, he was

  serving in a voluntary capacity and could end his support obligation

  at will. See id. at 112-13, 580 P.2d at 838. Pertinent to the court’s

  decision was the fact that the husband had filed a motion to

  terminate legal custody of the child. Id. at 111-12, 580 P.2d at 837.




                                       9
¶ 20   By contrast, in In re Marriage of Bonifas, 879 P.2d 478, 478

  (Colo. App. 1994), the couple signed an agreement to adopt a child

  and expressly agreed to assume “full financial responsibility for a

  child” and pay all expenses relating to the care of the child. The

  couple raised the child for ten years but did not complete the formal

  adoption. Id. When the couple separated, the district court ordered

  the husband to pay child support for the child, noting that he had

  accepted “full financial responsibility for a child.” Id. at 479.

¶ 21   On appeal, the husband argued that he had no duty to

  support the child under the decision in P.D. and the child support

  statute. Id. The division agreed with husband. Id. But it

  concluded that, under a contract theory, husband’s agreement to

  provide financial support was binding on him, and the child was a

  third-party beneficiary of that agreement. Id. The division also

  concluded that the husband had received some benefit of the

  agreement as he was awarded “liberal visitation rights” with the

  child. Id. at 479-80.

¶ 22   In In re Marriage of Rodrick, 176 P.3d 806 (Colo. App. 2007),

  the division affirmed an order directing a custodial father to pay

  child support for a nonbiological child as part of a dissolution


                                     10
  proceeding. Pursuant to an “Order of Permanent Parental

  Responsibility” the husband and wife had obtained custody of the

  biological child of a friend and had raised the child in their home for

  several years. Id. at 809. As described by the division, the parental

  responsibility order was designed to be a step toward adopting the

  child, but adoption proceedings were not commenced. Id. The

  couple later separated and filed a dissolution proceeding. Id. at

  809-10. Husband stated at the dissolution hearing that he wanted

  parenting time with the child but argued that since he was only a

  legal guardian of the child, he had no duty to pay child support

  under section 14-10-115. Id. at 810. Relying on Bonifas, the

  district court concluded the husband had a contractual duty to

  support the child and awarded child support. Id.

¶ 23   The division affirmed the order awarding child support but did

  so on statutory grounds. The division concluded that

            [t]he parental responsibility order was entered
            under § 14-10-123, which is part of article 10
            of title 14. It established a child support
            obligation by imposing the duties on husband
            and wife, described in § 19-1-103(73)(a), to
            provide [the child] with the necessities of life.
            Therefore, the trial court had the authority,
            under § 14-10-115(1) and (17), to order
            husband to pay child support.


                                    11
  Id. at 812. The division distinguished this case from P.D. because

  husband had not asked the court to relieve him of custody or

  terminate his relationship with the child; rather, he wanted

  “parenting time and parental decision-making responsibility.” Id.

¶ 24   In People in Interest of B.S.M., 251 P.3d 511 (Colo. App. 2010),

  the stepfather, who was not the child’s adoptive parent, declined to

  exercise parenting time despite an out-of-state joint custody order.

  He then refused to take custody of the child during a dependency

  and neglect proceeding against the mother. Id. at 512. The

  Department of Human Services initiated a petition and obtained an

  order from the district court directing that, as joint custodian,

  stepfather was obligated to support the child financially and pay

  foster care fees incurred for the child. Id.

¶ 25   A division of this court, relying on (1) the definition of “parent”

  in the Children’s Code, see §§ 19-1-115(4)(d), -103(82)(a), C.R.S.

  2018, as the child’s natural parent or parent by adoption; (2) P.D.’s

  holding that a child’s legal custodian may elect to terminate that

  status at any time and has no legal obligation to continue

  supporting the child; and (3) the distinction in Rodrick that the




                                     12
  psychological parent in that case had sought parenting time,

  reversed the financial award against the stepfather. Id. at 513-14.

¶ 26   And in Sidman v. Sidman, 240 P.3d 360, 362-63 (Colo. App.

  2009), the division determined that only the parents’ income, and

  not the guardians’ income, can be included when determining child

  support payable to the guardians under section 14-10-115. See id.

  at 362. This was appropriate, said the division, because there was

  no parental responsibility order and the guardians did not hold

  themselves out as the child’s “de facto parents,” but instead were

  designated his legal guardians by a court order. Id. at 362-63.

¶ 27   Thus, the amicus brief correctly points out that Colorado has

  not obligated a nonbiological or nonadoptive parent to financially

  support another’s natural child, absent the exception of an

  expressed intent to adopt. But none of the relevant cases involved a

  biological parent seeking child support from a recognized

  psychological parent who had raised and supported a child as his

  own, taken real and substantial legal steps to seek and maintain

  the same parental rights as the biological parent, and obtained a

  court order enforcing those rights.




                                   13
¶ 28   In those cases where child support was ordered to be paid,

  Bonifas and Rodrick, a common and, perhaps decisive, factor was

  that the husband who was ordered to pay child support had sought

  and received a continuing relationship with the child. This is the

  case with Hill. In those cases where child support was not ordered,

  P.D. and B.S.M., the husband and stepfather, respectively, had

  taken affirmative steps to terminate the relationship with the child.

¶ 29   While we found no Colorado decision that deals with the

  precise circumstances in this case — where a psychological parent

  sought and fought for the same parental responsibilities as a

  natural or adoptive parent — cases from other states have

  addressed this situation and their decisions have heavily weighted

  the actions of a psychological parent who seeks to maintain a

  parental relationship with a child in determining child support

  obligations.

¶ 30   A very recent Alaska Supreme Court decision addressed this

  scenario. In Moore v. McGillis, 408 P.3d 1196 (Alaska 2018), the

  stepfather, in petitioning for dissolution of marriage, sought legal

  and physical custody for his biological daughter and his stepson,

  the mother’s child from a previous relationship. Id. at 1198. He


                                    14
  had established himself as the stepson’s psychological parent and

  had received summer and holiday visitation and shared legal

  custody of him. Id. A few years later, the stepson’s biological father

  reappeared and intervened in the case. Id. at 1198-99. The mother

  argued that the stepfather could not maintain custody of the

  stepson and yet absolve himself of his child support obligation. Id.

  The Alaska Supreme Court agreed with mother:

             [Stepfather] has not sought to disestablish his
             parental relationship to the [stepson] here.
             The trial court found that he has continued to
             act as the boy’s psychological father, and [he]
             has fought for and obtained continued
             physical and legal custody of the child. We
             have stated that those with legal custody of a
             child are obliged to support that child.

  Id. at 1203.

¶ 31   A decision by the Pennsylvania Supreme Court on this issue is

  also pertinent. In A.S. v. I.S., 130 A.3d 763 (Pa. 2015), the child’s

  stepfather “haled a fit [biological mother] into court, repeatedly

  litigating to achieve the same legal and physical custodial rights as

  would naturally accrue to any biological parent.” Id. at 770. The

  court described the case as not a typical one “of a stepparent who

  has grown to love his stepchildren and wants to maintain a



                                    15
  post-separation relationship with them.” Id. Instead, the stepfather

  “ha[d] litigated and obtained full legal and physical custody rights,

  and ha[d] also asserted those parental rights to prevent a competent

  biological mother from relocating with her children.” Id. The

  Pennsylvania Supreme Court held that, because the stepfather had

  “taken sufficient affirmative steps legally to obtain parental rights,”

  he “should share in parental obligations, such as paying child

  support.” Id. at 770-71. The supreme court added, “[e]quity

  prohibits [the] [s]tepfather from disavowing his parental status to

  avoid a support obligation to the children he so vigorously sought to

  parent.” Id. at 771. 3

¶ 32   The reasoning in these cases is persuasive. Here too, Hill held

  himself out as A.F.’s father, almost from birth, by treating him as


  3 Michigan, New Jersey, and Connecticut courts have also held that
  a stepparent’s duty to pay child support after divorce can be
  enforced by applying principles of estoppel. See Nygard v. Nygard,
  401 N.W.2d 323, 326-27 (Mich. Ct. App. 1986) (applying promissory
  estoppel to conclude that a husband who had agreed to raise an
  unborn child as his own could be held responsible for child
  support); see also Miller v. Miller, 478 A.2d 351, 357-58 (N.J. 1984)
  (applying equitable estoppel to enforce child support where the
  husband had discussed adopting the wife’s children and he had
  prohibited any support from or visitation with the natural father
  during their marriage); W. v. W., 779 A.2d 716, 720-22 (Conn.
  2001). Mother in this case does not assert an estoppel theory.

                                     16
  his own. They lived together as a family for nearly four years, and

  Hill is the only father A.F. has ever known. And even after the

  parties broke up, Hill did not take his relationship with A.F. for

  granted. He exercised equal parenting time with the child for the

  next six years. When mother wanted to relocate with the child to

  Texas, he initiated an allocation of parental responsibilities,

  including a PRE investigation, and, at all times, he insisted that he

  be named the child’s primary parent in Colorado. In the end, after

  numerous hearings, the court ultimately granted him an order for

  parenting time and decision-making responsibility for the child.

¶ 33   We laud his efforts to maintain this bond with the child, but

  with the privileges of parenting should go the duties, including

  financial support. We cannot embrace a situation in which a

  psychological parent who fights for and obtains all the same

  responsibilities of a legal parent does not also assume the

  responsibility to pay child support. We find these circumstances

  much more akin to those in Bonifas and Rodrick (where parents

  attempted adoption and continued a parent-child relationship) than

  to P.D. and B.S.M. (where former stepfathers denied that they were

  the child’s parent).


                                    17
¶ 34   We emphasize that here, as in Rodrick, the court has entered a

  parental responsibilities order under section 14-10-123 that was

  intended to be permanent. Like the order entered in Rodrick, the

  parenting time and decision-making order entered in favor of Hill

  imposes a duty to provide the child with the necessities of life.

  Rodrick, 176 P.3d at 812.

¶ 35   We conclude that in cases like Rodrick and this one the district

  court has the authority to determine that a psychological parent

  owes a “duty of support” to the child within the meaning of section

  14-10-115(2), and, upon such a finding, the district court has the

  authority to impose a child support obligation on a psychological

  parent.

¶ 36   We emphasize that our opinion is limited to those

  psychological parents who have (1) established themselves as

  “parents,” rather than “guardians”; and (2) sought and received an

  intended-to-be-permanent allocation of parental responsibilities.

  We are not creating a new class of stepparent obligors, nor are we

  suggesting that the mere existence of a psychological parent-child

  relationship, on its own, establishes a support obligation under

  section 14-10-115. And we note that our opinion does not mean


                                    18
  that A.F.’s biological father, if found, is relieved from his duty to

  support his child.

¶ 37   We acknowledge that the district court was persuaded on

  public policy considerations in reaching its decision. Citing B.S.M.,

  251 P.3d at 514, it stated:

             A stepparent who tried to create a warm family
             atmosphere with his or her stepchildren would
             be penalized by being forced to pay support for
             them in the event of a divorce. At the same
             time, a stepparent who refused to have
             anything to do with his or her stepchildren
             beyond supporting them would be rewarded by
             not having to pay support in the event of a
             divorce.

  The court further indicated that if it were to “impose a child support

  obligation on [Hill] for caring for [A.F.] as if he were his own son, it

  would unfairly penalize him for behavior that should be

  encouraged, and it would create a perverse incentive for him to

  diminish the relationship in order to reduce his child support

  obligation.” And when considering the broader implications, it

  added, “Good-[S]amaritan relatives who [take] on substantial

  responsibilities with minimal or no compensation, could find their

  humanitarian good deeds penalized in the form of a substantial

  child support order.”


                                     19
¶ 38   But Hill here did more than create a “warm family

  atmosphere” with A.F. See id. He took active legal steps to place

  himself on equal footing with the biological mother and prevent her

  relocation. And he sought an allocation of parental responsibilities,

  rather than an order of guardianship. By concluding that a

  psychological parent, under these circumstances, is responsible for

  child support, we “increase the likelihood that only individuals who

  are truly dedicated and intend to be a stable fixture in a child’s life

  will take the steps to litigate and obtain rights equal to those of the

  child’s parent.” See A.S., 130 A.3d at 771.

                              III. Conclusion

¶ 39   We reverse that part of the district court’s order holding that it

  was foreclosed from ordering Hill to pay child support as to A.F.,

  and we remand with directions to further consider Hill’s child

  support obligations in accordance with section 14-10-115.

       JUDGE ROMÁN and JUDGE BERGER concur.




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