Adoption, family in front of house

Modern families do not necessarily match the nuclear family stereotype, and it’s a safe bet that June & Ward Cleaver (from “Leave it to Beaver”) would have never heard the term “Psychological Parent.” But when it comes to children, the saying “It takes a Village” often applies, even for child custody situations. Colorado family law recognizes the rights of biological parents, legal parents (who may not be the same), adoptive parents, psychological parents, grandparents, and others with close relationships to the children. Pertinent to this post, a psychological parent who meets statutory criteria may be awarded parenting time if it is in the child’s best interests.

And with parenting statutes divided between Title 19 (juvenile code, including adoption & paternity) and Title 14 (dissolution & allocation of parental responsibilities), it’s inevitable that responsibility over a child may be shared by multiple courts, governed by conflicting statutes.

The Colorado Court of Appeals addressed the conflict between the rights of adoptive parents vs psychological parents in E.A.T.1In re: Adoption of E.A.T., 2022 COA 46. The facts are somewhat convoluted, and read a bit like a soap opera:

Psychological parent & adoptionPsychological parent & adoption
  • Mother and Biological Father, who were unmarried, had a child together.
  • Two years later, Mother married the man who would become Psychological Parent.
  • Mother and Psychological Parent separated, and Mother began living with the man who would become Adoptive Father.
  • The court (“Domestic Relations Court” for the sake of simplicity) in Mother and Psychological Parent’s divorce found that he was the child’s psychological father, and awarded him visitation. (We have written about psychological parents in the past, pertaining to their duty to pay child support).
  • Adoptive Father then filed a petition for a stepparent adoption of the child (presumably Mother and Adoptive Father were now married, but the case does not explicitly state that).
  • Mother and Biological Father both consent to the stepparent adoption. Psychological Parent was not given notice of the adoption proceedings.
  • The court in the adoption case (“Adoption Court”) entered a decree of adoption.
  • The Adoption Court issued a supplemental order (the order at issue) which contradicted the Domestic Relations Court by finding there was no “scientific or biological basis” for Psychological Parent to be “the actual psychological father of the minor child” and terminated his visitation rights.

Original & Continuing Jurisdiction over Parenting Responsibilities

Mother and Psychological Parent subsequently appeared in the Domestic Relations Court which had issued their decree of dissolution and originally granted visitation to Psychological Parent. That court, while recognizing the adoption decree, concluded that it had “original and continuing jurisdiction over the parental responsibilities concerning the child”, and reaffirmed Psychological Parent’s visitation rights.

The Psychological Parent then filed a motion to intervene in the Adoption Court case, as well as a motion to set aside the adoption decree, arguing that his rights as a “psychological father” are equivalent to that of a legal parent, so he should have received notice of the adoption proceeding, and the adoption court should not have terminated his “parental rights.”

The Adoption Court denied both motions, finding that Psychological Parent was not entitled to notice, and he lacked standing to challenge the adoption decree, as only “natural parents” had such a right under the adoption statutes, not any third parties, including psychological fathers. The Adoption Court further found that Psychological Parent failed to show how the stepparent adoption impaired his visitation, as the Domestic Relations Court had ordered visitation despite the adoption.

However, the Adoption Court recognized that the Domestic Relations Court asserted original and continuing jurisdiction over Psychological Parent’s parenting time, so it vacated the supplemental order which had terminated such visitation.

The Adoption Court then denied Psychological Parent’s motion for access to the adoption court file, finding that he did not fall within the class of people permitted to access confidential adoption records.

On appeal, the Adoptive Father argued that the Adoption Court erroneously vacated its supplemental order (the one which purported to terminate Psychological Parent’s visitation), and Psychological Parent argued that the Adoption Court erroneously denied his motion to intervene.

Exclusive Jurisdiction of Domestic Relations Court vs Adoption Court

“Juvenile courts (including the juvenile divisions of district courts outside of the City and County of Denver) have exclusive original jurisdiction in proceedings concerning adoption. District courts have jurisdiction over domestic relations matters, including APR. The district court’s jurisdiction in a case, even if continuing, does not preclude the juvenile court from taking jurisdiction in another case involving other issues related to the same child.”

E.A.T.2In re: Adoption of E.A.T., 2022 COA 46, ¶15 (Cleaned Up).

In this case, both courts properly exercised jurisdiction over certain issues related to the child: the Adoption Court over the adoption-related issues, and the Domestic Relations Court for the allocation of parental responsibilities (APR) over the child. “To be sure, nothing in section 19-1-104(5) permitted the adoption court to modify an existing APR to a nonparent.” ¶17.

Adoptions Are Subject to Outstanding Parenting Orders

Kind of analogous to buying a house with a tenant means that the new owner must still honor the lease, adopting a child means the new adoptive parent must still honor outstanding orders for the allocation of parental responsibilities: Adoptive Father’s rights from the adoption are “no more than those enjoyed by the child’s biological father before the adoption”, so are therefore subject to Psychological Parent’s visitation rights. ¶20. Accordingly, the Adoption Court had improperly modified the Domestic Relations Court’s visitation order by issuing the supplemental order, and properly vacated it.

“Indeed, if adoptive father’s position on the issues in this case were correct, a psychological parent would not be entitled to participate in an adoption proceeding, but his rights under an existing court order could nevertheless be taken away. We cannot conclude that the legislature intended to create such a blatant due process problem.”

E.A.T.3In re: Adoption of E.A.T., 2022 COA 46, ¶22.

Psychological Parent Is Not a Parent

“Psychological father is not a “parent” for purposes of the adoption statute. The Children’s Code defines parent as “either a natural parent of a child, as may be established pursuant to article 4 of this title 19, or a parent by adoption.” § 19-1-103(105)(a). At oral argument, psychological father’s counsel invoked the language from a different part of the same statute: “‘Parent’ as used in sections 19-1-114, 19-2.5-501, and 19-2.5-611, includes… a parent allocated parental responsibilities with respect to a child.” § 19-1-103(105)(b). But this provision is unavailing for two reasons: (1) by its terms, this definition of parent applies to only three statutory sections, none of which is at issue here; and (2) it still refers to a “parent” — rather than a “person” — who has been allocated parental responsibilities. Significantly, the General Assembly has used the phrase “person to whom parental responsibilities have been allocated” elsewhere in the Children’s Code. Clearly, when the legislature wants to include people in psychological father’s position in the same group as parents, it knows how to do so.”

E.A.T.4In re: Adoption of E.A.T., 2022 COA 46, ¶19 (Cleaned Up).

The Psychological Parent tried an alternative argument – because he was awarded parental responsibilities, he was tantamount to a legal parent. The court soundly rejected this position:

“we reiterate that psychological father is not a legal parent. We recognize that the domestic relations court noted that psychological
father had “significant rights that are equivalent to a legal parent.” But the court’s statement does not make psychological father a legal parent. It is undisputed that, prior to the adoption, mother and biological father were the child’s legal parents. And the child can only have two legal parents.”

E.A.T.5In re: Adoption of E.A.T., 2022 COA 46, ¶28.

And since the adoption did not terminate Psychological Parent’s right to visitation, he was not entitled to notice or intervention in the adoption case, ¶31, nor does this APR order somehow make the child unavailable for adoption. ¶35.

“But psychological father was not a legal parent facing termination of his parental rights. And his ability to protect his interests related to the APR remains intact, albeit in the domestic relations court. Therefore, the court did not have to ensure that psychological father received notice and the opportunity to be heard on the issue of stepparent adoption.”

E.A.T.6In re: Adoption of E.A.T., 2022 COA 46, ¶37.

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