Paternity & Unmarried Parents

Colorado has adopted the Uniform Parentage Act, or UPA, codified at C.R.S. 10-4-101, et seq. Under that statute, and under the “Colorado long-arm statute” at C.R.S. 13-1-124, the Colorado juvenile court has jurisdiction to determine the parentage of a child (formerly known as “paternity”) if the child or one of the parents lives in Colorado, and one of the following conditions is met:

1. Personal service on the respondent parent within the state of Colorado (including a waiver of service),
2. The child was conceived as a result of intercourse in the state of Colorado, or
3. The respondent parent consents to Colorado jurisdiction.

Colorado paternity jurisdiction means Colorado can adjudge parentage, order the child’s birth certificate changed, and order child support and birthing costs. However, without more, the paternity court cannot issue child custody or visitation orders. Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), only the child’s home state can adjudicate parenting issues, so if Colorado is the child’s home state, the Colorado paternity judge can also determine those parenting issues. For more information, see our UCCJEA parenting jurisdiction article in this Guide.

Parentage is not just about the genetics – Colorado paternity is a complicated area, and the result depends upon a variety of issues, such as genetic testing, the name on the birth certificate, whether the mother is married to someone else, whether there has been an acknowledgment of paternity, the age of the child, etc. And even if Child Support Services is assisting, they only handle child support, and representation from a skilled family law attorney who knows both family law, and paternity issues, is critical.

Paternity vs Parentage

The term “paternity” is itself outdated, but still used in several statutes, as well as in most cases interpreting the Uniform Parentage Act. Colorado now uses the term “parentage”, which recognizes that a parentage case can establish the existence of any parent, be it a mother, father, or a same-sex parent. Accordingly, the traditional term “father” is no longer used exclusively in a parentage case, and the “second parent” may be a father, mother, “co-parent”, or “other”. This article may still refer to “father” at times, but in reality it means the “second parent” who did not actually birth the child.

Legally establishing parentage in Colorado is a good idea, even if the parents get along. It cements the other parent’s bond to the child and gives him legal rights. Should the parties disagree in the future, it ensures the parent with primary residential responsibility receives child support, and it allows the child to grow up with certain knowledge of who his/her parents are.

Colorado Acknowledgment of Parentage

Pursuant to C.R.S. 19-4-105(2)(a.5), the birth parent and another person can jointly sign a voluntary acknowledgment of parentage. See a sample State of Colorado Voluntary Acknowledgment of Parentage. This form establishes the other parent’s parentage, and is a legally binding document. It can only be rescinded within 60 days of signing. C.R.S. 19-4-105(2)(b)(I) or by a court proceeding.

Note that the acknowledgment itself does not establish a child support amount, custody rights or a parenting schedule – if the parties disagree on them, they will still need a court order.

In order to be on the birth certificate, Colorado requires a father who is not married to the child’s mother to execute an acknowledgment of parentage. Since the practical effect may be that the alleged father cannot later challenge parentage, think carefully before a smiling person brings the acknowledgement, and you’re tempted to sign it in the immediate euphoria of a child being born that may not really be yours!

An acknowledgment of parentage may be challenged in court based upon fraud, duress or mistake of fact. C.R.S. 19-4-105(2)(c), but the person’s legal obligations continue until/unless there is a court order finding no parentage.

Parentage Case Must Include All Presumptive Parents

Since a paternity case is intended to establish who the child’s legal parents are, necessarily that means anyone with a claim to parentage, including all presumptive parents, must be included in the action, even if only to rule them out as parents. C.R.S. 19-4-110 provides “the mother, each man presumed to be the father under section 19-4-105, and each man alleged to be the natural father shall be made parties or, if not subject to the jurisdiction of the court, shall be given notice in a manner prescribed by the court and an opportunity to be heard.”  

The failure to include all presumed and alleged parents deprives the court of subject matter jurisdiction to determine parentage;

“we conclude that a district court lacks jurisdiction to resolve matters in a paternity action unless each man presumed to be the children’s father and each man alleged to be the children’s natural father are made parties to or given notice of the action.”

E.K., at ¶ 12.

Even when the parentage case includes the biological father, failure to include all presumptive parents rendered the parentage decree void! C.L.B. (For a more detailed discussion of the facts of the C.L.B. case where the mother’s husband, while not the biological father, was not served, see our blog post). Moreover, per that same decision, failure to include the presumptive parent from the outset could not be “cured” with some kind of after-the-fact notice to him.

Who is a Presumptive Parent?

A presumptive parent does not necessarily mean the child’s actual parent, and a child may have multiple presumptive parents who need to be included in a paternity case. C.R.S. 19-4-105(1) sets out who a child’s presumptive parents are:

• Spouse. A person who, at the time of birth or within 300 days prior to birth, was the spouse (or civil union partner) of the birth parent. Subsection (a).
• Attempted Spouse. A person who attempted to marry the birth parent prior to birth, but the marriage was potentially invalid. Subsection (b).
• After-the-Fact Spouse or Attempted Spouse. A person who married, or tried to marry, the birth parent and the marriage could be invalid, and the person either:
  • Filed an acknowledgment of parentage,
  • Is named on the birth certificate with the birth parent’s consent, or
  • Is obligated to pay child support pursuant to court order, administrative order, or written voluntary promise. Subsection (c).
• Hold the Child Out as Own. “While the child is under the age of majority, the person receives the child into the person’s home and openly holds out the child as the person’s natural child”. Subsection (d).
• Biological Parent, as shown by genetic testing with a probability of 97% or higher. Subsection (f).

Competing Presumptions of Paternity

Note that no one presumption, including biology, is more important than any other presumption:

“Nowhere in the statutes does the General Assembly identify any presumption as conclusive. Specifically, section 19-4-105 does not indicate that the presumption of legitimacy automatically outweighs the presumption of biology, or that the converse is true. In fact, no section of the UPA suggests that one presumption of fatherhood should be absolute or conclusive. Rather, the paternity statute indicates that any of the presumptions may be rebutted by clear and convincing evidence.

Similarly, the evidentiary statute does not conclusively elevate a biological presumption over other presumptions.”

N.A.H., at 361. (Cleaned Up).

“As a result, “we conclude that the statute contemplates that neither the presumption of legitimacy nor the presumption based on biology is conclusive. Rather, the statutory scheme as a whole indicates that all presumptions are rebuttable, including the presumption based on biology. The statutes allow for the creation of various presumptions in favor of men who have claims to fatherhood of a child. When those presumptions conflict, then the statute directs the courts to resolve them on the basis of policy and logic.”

N.A.H., at 362.

And how to resolve conflicting presumptions? Juvenile courts “must focus on the best interests of the child and make determinations of paternity with that standard at the forefront.” N.A.H., at 362. Those factors, which are set forth in C.R.S. 19-4-105(2)(a) include:

• Length of time between the presumptive parent being placed on notice that the presumptive parent may not be the genetic parent.
• How long the presumed parent acted as parent to the child.
• Facts surrounding the presumed parent’s discovery he was not a genetic parent.
• Nature of the existing parent-child relationship
• Child’s age
• Child’s relationship to any other presumed parents
• The extent the passage of time may have reduced the chances of establishing another person’s parentage and child support obligation.
• “Any other factors that may affect the equities arising from the disruption of the parent-child relationship between the child and the presumed parent or parents or the chance of other harm to the child.”

For more information on resolving competing paternity presumptions, see our blog post on biology vs parentage presumptions.

Child Can Only Have Two Parents

People in polyamorous relationships note – a judge in a parentage case cannot adjudicate more than two legal parents for a child. This also precludes compromises between multiple competing parents. In K.L.W., the twin babies had a mother, and two presumptive parents – a biological father, and a woman who was listed on the birth certificate and had raised the children, holding them out as her own.

The trial court ultimately found the biological father should be the legal parent, and it was precluded from also recognizing the other woman as a parent. That woman appealed, and lost:

“The plain language of section 19-4-105(2) is mandatory – the court must weigh two or more conflicting parentage presumptions and determine which controls… These provisions mean that a child is limited to having just two legal parents.

K.L.W., at ¶¶ 20-21.

For a more detailed discussion of the K.L.W. case, see our blog post Uniform Parentage Act Limits Child to Only 2 Parents.

Parentage Over Unborn Child

There is no requirement that the child actually be born before a parentage case can be commenced. C.R.S. 19-4-105.5(3) provides: “Proceedings under this article may be commenced prior to the birth of a child.”

In G.C.M.M., the court confirmed that a father could start a paternity case prior to the child’s birth. However, this simply allows a court to establish parentage; the court cannot enter any parenting orders until the child is born and Colorado has child custody jurisdiction:

“While a paternity proceeding under the UPA may be initiated before a child’s birth, the court must also have jurisdiction under the UCCJEA before it may make a child-custody determination as part of the proceeding. The juvenile court here did not have jurisdiction under the UCCJEA because that statute does not provide a basis for jurisdiction over an unborn child. Nor does the UPA expressly authorize a court to make a child-custody determination before the child is born.”

G.C.M.M., ¶ 2.

In G.C.M.M., the child was conceived in Colorado, but the pregnant mother-to-be moved to New Hampshire prior to giving birth, so the court held that Colorado could adjudicate parentage only, and not child custody issues. For a more in-depth discussion of this case, see our blog post Colorado Paternity Case Before Birth, Not Child Custody.

Effect of a Colorado Parentage Decree

Colorado child support arrangements are similar to those in any other family law cases, with a couple of twists: the obligor may have to pay back support retroactive to the child’s birth, plus the child’s birthing costs!

Back support is mandatory to repay Colorado social services for any public benefits paid to the mother, and at the discretion of the juvenile court in other situations. When public assistance has been paid, the retroactive child support ordered will necessarily be the full amount paid by the state – rather, it is capped by the current guidelines amount multiplied by the number of months public assistance was received. S.M.

If you are a potential parent served with a parentage summons, just like any other summons, do NOT ignore it. Doing so risks the court imposing a very one-sided decree against you, so contact a Colorado paternity lawyer if you have questions.

Genetic Testing to Establish Parentage

An alleged father has the right to a genetic test to establish if he is the biological father. See C.R.S. 13-25-126 for how the results of genetic testing are admissible in a parentage case. Note also that a request for genetic testing by either parent will have no impact on parenting or child custody issues. C.R.S. 14-10-124(3.5).

See www.labcorp.com for more information on paternity genetic testing.

Challenging Paternity

Once there has been a legal determination of paternity, the parent has two years from the date the order was entered to file a motion to set aside the parentage order. C.R.S. 19-4-107.3(2)(a). The parentage order may only be set aside if:

1. Genetic testing determines that the named father is not the biological father, and
2. The Court determines that it is just and proper, and in the best interests of the child, to set aside the parenting determination.

Moreover, per C.R.S. 19-4-107.3(3) a person legally adjudged to be the child’s parent cannot request that the order be set aside if he:

• Acknowledged paternity despite knowing he was not the father,
• Adopted the child, or
• The child was conceived by means of assisted reproduction.

Per C.R.S. 14-10-122(6), a person whose parenting determination has been set aside is relieved of his child support obligation for all installments accruing after the motion to set aside was filed. And the juvenile court has the option to set aside any child support arrears outstanding from prior to the motion being filed, but that is not automatic. Moreover, there is no provision to recoup support which the adjudicated father has paid prior to the motion to set aside being filed.

Parentage vs Allocation of Parental Responsibilities

There are two ways in which unmarried parents may seek judicial resolution of parenting – through a parentage action under Title 19, or, if both parents are on the birth certificate and there are no other presumptive parents, through an “Allocation of Parental Responsibilities” (APR) case filed pursuant to C.R.S. 14-10-123.

The two types of cases have some similarities, but they also have key differences including:

• If one parent is not on the child’s birth certificate, the parties must bring a paternity case to establish legal parentage. If both parents are on the birth certificate, they can either file a paternity or an APR case.
• A court in a parentage case may order child support back to the date of birth, whereas in an APR the court’s jurisdiction to order child support only goes back to the date the summons was served on the other parent. C.R.S. 14-10-123(2)(a).
• A parentage case may order birthing costs.
• An APR case necessarily involves child custody, so can only be filed in the state which has UCCJEA home-state jurisdiction over the child.

Child support is the big difference between the two types of cases for most parents. Because a court cannot order retroactive child support prior to birth with an APR case, the parent who has raised the child since birth will typically have an interest in filing a parentage case to at least have the chance of a large retroactive child support award, while the other parent would want an APR case filed instead.

But these actions are not mutually exclusive – if one parent files an APR first, either parent can still later file a parentage case to seek retroactive child support. In G.E.R., the mother filed for an allocation of parental responsibilities, and after that case was completed and a decree entered, she then filed a petition for paternity under the Uniform Parentage Act, seeing birthing costs.

The trial court denied the mother’s parentage petition, finding that she could have filed a UPA case initially, but chose to file an APR case, and since that case resolved all issues and parentage was not at issue, she could not now file a parentage case.

The Court of Appeals reversed, noting that the Uniform Parentage Act authorized a parent to bring an action “at any time” to determine the existence of the father/child relationship. So while the better practice would have been to join the UPA case with the APR one, she was not precluded from later seeing birthing costs in a UPA case. G.E.R., at 639. The fact that paternity itself was not at issue did not preclude a parentage case if the mother sought other relief pursuant to the UPA.

This “at any time” rule also prevents a “race to the courthouse”. In a later unpublished decision, the mother filed a parentage case two weeks after the father filed an APR case, and the trial court dismissed the UPA case because parentage was not at issue. The Court of Appeals reversed:

“We also agree with mother’s contention that she should not be precluded from seeking relief under the UPA simply because father sought relief under the UDMA first.”

C.H.H.-H. at ¶ 13.