Parents owe their children a duty of support – this has long been recognized in Colorado’s child support statute (C.R.S. 14-10-115), and in every family law case imaginable. But can psychological parents, or other third party nonparents owe child support?
Three years ago, in a groundbreaking decision, the Colorado Court of Appeals held that a psychological parent who filed a petition seeking parenting time from the child’s mother, and was ultimately found to be a psychological parent entitled to parenting time, owed a duty of support to the mother. For a detailed discussion of that A.C.H.1In re: Matter of A.C.H., 2019 COA 43. case, see our blog post Psychological Parent Duty to Pay Child Support.
In Flanders,2In re: Marriage of Flanders, 2022 COA 18. the Court of Appeals considered a situation where a third party nonparent did not file a petition seeking parenting time, but simply stepped up to the plate in a dependency & neglect case to assume parental responsibilities to avoid the child having to be placed in foster care.
After the parent’s divorce, the state initiated dependency & neglect proceedings against them, and the juvenile court found that both parents were unfit, and found it was in the child’s best interests to allocate parental responsibilities to the child’s maternal grandmother. The trial court ordered both parents to pay child support to the grandmother.
Three years later, the father had become more stable, so the grandmother reintroduced the child into his life. The father subsequently filed a motion to modify parenting time, and a motion to modify child support, asking the court to find the grandmother was a “psychological parent” under the A.C.H. case, and therefore owed him child support.
The trial court granted the father’s parenting motion in part, but denied the father’s request to order the grandmother to pay child support to him on the grounds that she had a formal, legal relationship with the child which arose from the dependency & neglect case, rather than being the result of a nonparent seeking parenting time as a psychological parent. Moreover, the grandmother did not affirmatively seek parental rights, but agreed to become a temporary guardian only after both parents were deemed unfit.
The father appealed the decision not to order the nonparent to pay child support. and the Court of Appeals affirmed the trial court’s denial of support.
Nonparent Awarded Parental Responsibilities in D&N is not “Psychological Parent”
The appellate court distinguished the grandmother in Flanders from the situation in A.C.H., which involved “a psychological parent who fights for and obtains all the same responsibilities of a legal parent” except for the obligation to pay child support. Flanders.3In re: Marriage of Flanders, 2022 COA 18, ¶ 14.
In this case, however, the grandmother did not initiate a parenting case against the parents, thereby seeking the rights of a parent without the responsibilities, nor did she ever fight for permanent custody of the child or hold herself out as the child’s parent or psychological parent. Instead, the state brought the Dependency & Neglect proceeding, and the grandmother offered to provide the child with a stable home.
“We hold that maternal grandmother’s willingness to assume parental responsibilities caused by mother’s and father’s parenting deficits did not transform her into a permanent custodian or a psychological parent with an obligation to pay child support under A.C.H. Accordingly, we discern no abuse of discretion in the court’s order declining to impose a child support obligation on maternal grandmother.”Flanders.4In re: Marriage of Flanders, 2022 COA 18, ¶ 18.
Dissent – Nonparent Duty of Support Not Limited to Psychological Parent
One of the three judges on the panel dissented, asserting that while the grandmother may have originally started out as the knight in shining armor (my phrase, not the judge’s) to prevent the child from being placed in foster care, once the father sought to modify parenting time, she became an active litigant, fighting the father’s efforts to retake legal custody of the child.
While the dissent did agree that the grandmother should not pay support to the father, as she had primary care, and spent her own funds housing, feeding and clothing the child, not to mention that the father had fewer than 93 overnights, so would not be entitled to support from her anyway.
But the dissent does not believe that a nonparent’s obligation to pay child support should depend upon whether that third party was a “psychological parent,” as that term is simply one means by which a nonparent may seek parenting rights. Rather, what should matter is “whether one is in a position to seek parental rights.” Flanders.5In re: Marriage of Flanders, 2022 COA 18, ¶ 29 (Tow, J., Dissenting).
Judge Tow’s dissent notes that the child support statute applies to “any proceeding” under the UDMA (Uniform Dissolution of Marriage Act), not just to divorce cases, and that third party nonparents can seek parental rights under a variety of circumstances, not just when they are psychological parents:
“So what does “parent” mean in the context of a support order established pursuant to section 14-10-115? Clearly, it is not always limited to a natural, legal, or adoptive parent, as it is in section 14-10-123.”Flanders.6In re: Marriage of Flanders, 2022 COA 18, ¶ 34 (Tow, J., Dissenting).
The dissent would expand the obligation to pay support to a much broader class of nonparents:
“In sum, to harmonize section 14-10-115 with the statutes that explicitly incorporate it, I believe it is necessary to conclude that “parent” as used in that section means an individual who is the present recipient of an allocation of parental responsibilities pursuant to section 14-10-123 or who has legal custody as defined in section 19-1-103(94)(a).”Flanders.7In re: Marriage of Flanders, 2022 COA 18, ¶ 40 (Tow, J., Dissenting).
The takeaway? In the A.C.H. case, it is hard to have much sympathy for a nonparent who, claiming to be a psychological parent, wanted only the rights of parenthood, without the financial obligations. And in Flanders, it would simply be wrong to impose a financial obligation upon a grandmother who did not seek her role, but instead when the court found the child’s parents unfit, she stepped up to the plate to avoid the child being placed in foster care.
While Judge Tow’s dissenting position that anyone with parental rights should be subject to child support may be a more legally-defensible position, it also presents public policy problems – nonparents who voluntarily spend thousands of their own money to raise a child who is not theirs may think twice if doing so could subject them to future child support obligations.
For more information about a third party nonparent’s duty to pay child support in a wide variety of circumstances, see our Child Support and Third Party Non-Parents article in the Colorado Family Law Guide.
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