Two Moms, One Baby: Colorado Sheds New Light on King Solomon’s Dilemma

In the Interest of S.N.V., a Child,
And Concerning C.A.T.C., Petitioner-Appellee
And N.M.V., Respondent-Appellee,
And B.V., Intervenor-Appellant

10CA1302

Petitioner-Appellee (“birth mother”) and Respondent-Appellee (“husband”) are parents to minor child, who was born in 2007. Petitioner brings this case, seeking an allocation of parental responsibilities. The Intervenor-Appellant (“wife”) seeks to establish her rights as the minor child’s legal mother. It is clear to the Court that the minor child was conceived through sexual intercourse between husband and birth mother.

What remains in dispute are the circumstances surrounding the minor child’s conception. Husband and wife asserted that there was a non-verbal agreement that birth mother was to act as a surrogate. As part of this agreement, they attended all of birth mother’s medical appointments and paid for all her expenses relating to the pregnancy and birth. Husband and wife claim that they have been the minor child’s sole caregivers since his birth.

Birth mother claims that the minor child’s conception came from an intimate relationship between her and husband. She states she was involved in the care of the minor child for the first two years of his life, but that husband severed her contact with the child.

The crux of this case is that two women are claiming to be the minor child’s mother. In a 2000 Colorado Supreme Court case, N.A.H. v. S.L.S., two men claimed to be a child’s father, one biologically, and the other because he was married to the mother and received the child into his home, and held it out as if it were his own. In N.A.H., the Colorado Supreme Court held that “neither the presumption of legitimacy nor the presumption based on biology is conclusive,” meaning that both men had a claim to paternity of the child. One claim was based on statutory presumptions, and the other was based on biology, or genetic testing. The Court held in N.A.H. that the competing claims must be decided in the best interests of the child.

The Colorado Appellate Court has held that this interpretation of the UPA should also apply to maternity actions. Under the UPA, giving birth, or biology is one way to determine a parent-child relationship, however, this relationship can be proven by any other proof that is specified in § 19-4-105. A woman’s proof of marriage to the child’s father, or her proof of receiving the child into her home, and holding the child out as her own may establish the mother-child relationship.

Having remanded the case back down to the trial court the Colorado Court of Appeals stated that it did not suggest that a court must treat biological relationships and relationships based upon statutory presumptions as being equal. It merely stated that “these interests must be considered, along with all other relevant facts, in determining the outcome of an action under the UPA.”

The trial court will now have the task of weighing the two women’s legal claims to the child, as well as what is in the child’s best interest in this matter, to determine which woman will have the legal mother-child relationship with the minor child.

How to Deal with Exes and Parenting Issues Post-Divorce

Our Twitter feed has been full of great tips for dealing with ex-spouses this week! Whether emotionally or legally, dealing with your ex after your divorce can be a bumpy””but often necessary””ride. The most common reason an ex stays in your life after the relationship ends is shared custody of the kids. If you have children together, your life will likely never be completely free of a former spouse””even after the kids enter adulthood.

Maintaining a civil relationship with an ex””in most cases, except instances of abuse or violence””can benefit everyone involved, particularly children. It may not always be easy, but here are a few tips for dealing with an ex in ways that everyone can live with:

  • Do not badmouth your ex in front of your kids: Face it””everyone is human. And all of us are tempted at times to express anger, frustration, annoyance, or sadness when the kids are going to visit the ex. For your children’s sake””and for your own mental health””please refrain. Seriously. It will not help you, and it certainly is not good for the children to feel stuck in the middle. In fact, try and go the opposite direction. Be generous. Let your children know your ex””their mother or father””loves them as much as you do, even if””inside your head””you have negative thoughts. Try to remember that the most important people in this relationship are your children. They will watch your actions as well as listen to your words. And it is not just the kids who will benefit. Avoiding arguments, harsh words, and negative emotions will reduce your own stress. Find someone to confide in””a good friend, family member, or therapist””and save your negative thoughts for a better setting and recipient.
  • Adjust to changes and be understanding: Your ex is dealing with his or her life too. There may be times when he or she is late for the children’s drop-off and pick-up. Or maybe there is a work conflict or an after-school activity to navigate around. Try to be flexible and understanding. Life happens, so be open to changes and adjust as best you can. If unplanned changes to parenting schedules and visits seem to be happening often, it might be time to review arrangements. If your ex is late to a few drop-offs, the world will not end; however, if it is a precursor to more serious behaviors or habits, consider whether there will be long-term effects. Again, the most important person here is your child. Will this behavior eventually impact your child negatively? If not, do your best to be flexible, even when it is hard.
  • Find neutral help: If you are finding it beyond difficult to maintain civility””and believe us, it happens””find someone who can act as a go-between or mediator for you. This can be a friend or family member, but it should be someone who both of you like and respect””and importantly, someone who can be neutral. This neutral party could then attend drop-offs and pick-ups or any additional meetings between the two of you regarding your child’s upbringing. Often, involving someone who is not directly affected can defuse a tense situation and keep everyone calm.
  • Keep the lines of communication open: Whether your child is having a hard time adjusting to the divorce, is involved in sports that bring frequent schedule changes, or even is having problems in school””you and your ex will need to be able to communicate. The first step is to find the communication style that works for both of you. It could be that email is easiest because face-to-face dredges up too many emotions. It could be that you need a neutral third party we discussed above. Either is fine. Just pick what works for you and the kids and make sure to keep talking. If you see a potential problem at your home with your child, make sure you let the other parent know. If your child is interested in joining a sport, and the games will require out-of-state travel, talk to each other. Communication in any fashion that reduces stress, prevents misunderstanding and ensures both parents know all they need to know to effectively address a child’s needs is the ultimate goal.

Conclusion

Your marriage may have ended, but you will always have your kids in common””and that means a little extra challenge when you are adjusting to life as ex-partners. Whether it is scheduling joint attendance at events, juggling the challenges of daily scheduling or child-rearing challenges, you and your ex will want to develop new””and perhaps unexpected””coping and communication skills to make sure children grow up with as much involvement and interaction from both parents as possible, despite the divorce.

Divorce Matters Overturns Wrongful Adoption, Reunites Father with Son

Recently, we handled a case that really reminded us of why our work is so important.

In this case, the mother and step-father filed for a step-parent adoption without the biological father’s consent. Along with their petition for step-parent adoption the mother and step-father filed an affidavit alleging the biological father had abandoned his son and failed to pay reasonable child support for more than a year.

A hearing was held to determine whether the father had abandoned his son and failed to pay reasonable child support and whether to grant the step-parent adoption. The father did not attend the hearing. At the hearing, the mother and step-father failed to inform the court that the father had recently filed and won, two months earlier, a hearing to enforce his parenting time and that he was exercising his parenting time with his son at the time of the hearing. They also failed to inform the court the father had repeatedly fought to enforce his parenting time for years. The court relied on the fraudulent affidavit, terminated the father’s parental rights, and granted the step-parent adoption. Thereafter, the father was not allowed to see his son.

Father, without an attorney, filed a motion to set aside the adoption based on fraud. The trial court refused to hold a hearing regarding father’s allegations that the step-parent adoption was obtained through fraud.

Divorce Matters began representing Father to reinstate his parental rights and to vacate the step-parent adoption.

First, Divorce Matters appealed to the Colorado Court of Appeals the Judge’s decision in which he refused to hold a hearing regarding father’s allegations of fraud. Divorce Matters got the Court of Appeals to reverse the Judge’s decision and the Court of Appeals sent the case back to the trial court to determine whether the adoption was obtained through fraud.

Second, Divorce Matters went to hearing and argued the step-parent adoption was obtained through fraud. The trial court agreed. The trial court found the father had not abandoned his son and that the mother and step-father fraudulently misrepresented to the court that the father had abandoned his son. The court vacated the step-parent adoption and reinstated the father’s parenting time effective immediately. After not seeing his son for almost two years, the father gets to see his son again.

This is the type of case””and outcome””we always hope to secure for our clients and remind us why we work so hard on our clients’ behalf every day.