Category: Child Custody

A recent decision by the Colorado Court of Appeals is good
news for those seeking parental responsibilities of a child that is not the
parent of the child.  The court found in In
re M.W., 12CA0771, 2012 WL 4464386 (Colo. Ct. App. Sept. 27,
2012), that a psychological parent who has standing under C.R.S.
14-10-123(1)(c) (2012) may bring an action for parental responsibilities
without having to show that the parent(s) of the child is unfit to parent.

Many courts were reluctant to intervene with a parent’s
fundamental right to parent after the U.S. Supreme Court’s decision in Troxel
v. Granville, 530 U.S. 57 (2000).  In
Troxel, the court held that parents have a fundamental right protected
by the Due Process Clause to make decisions concerning the care, custody, and
control of their children.  530 U.S.
at 66.

In re M.W. has set a clear test for the courts to
follow in these matters.  The court found
that while a presumption exists favoring the parent, allocation of parental
responsibilities to a nonparent can be ordered if the nonparent has standing
and can show by clear and convincing evidence that 1) the parental
determination regarding parental responsibilities is not in the child’s best
interests and 2) it is in the child’s best interests to allocate parental
responsibility to the nonparent.  2012 WL
4464386 at *3.

While the clear and convincing standard is a high evidentiary
burden, this case has set a clear standard for the many step-parents and same-gender
parents who are seeking allocation of parental responsibilities.

As any divorcing parent knows all too well, divorce takes a toll on the kids””even in the most amicable splits. From the emotional to the physical, children have many needs that parents must address, all while they struggle to balance their own emotions and make difficult decisions.

Recently, I came across an organization””Rainbows for All Children, Inc.””that helps parents and kids deal with the emotional toll of divorce. They’ve created a packet full of tips and insights for divorcing parents.

Rainbows for All Children is an international nonprofit founded to help children deal with grief, including feelings of grief stemming from divorce. They’ve put out a terrific packet chock full of practice tips for parents on helping their children cope during and after divorce. Here’s a link to a PDF copy of the packet.

A few things we found most helpful include a list (on page 4) of what children need””from the child’s perspective””during their parents’ divorce. Some of our favorites on their list include:

• I want to be allowed and encouraged to love and be loyal to both of my parents
• I am upset when I am interrogated about my time with my other parent
• I need the transition between parenting time to be comfortable and flexible

Divorce impacts children differently by age, too, which means parents of two or more children may have to employ different strategies for each child as they help them transition. The packet includes a great list of the various reactions to divorce your kids might have, based on their age. Here are common reactions for a child 3 to 6 years in age and some recommended actions by family caregivers:

Age Level Reactions ”“ Child 3 ”“ 6 years

• realize someone is missing in family unit
• blames self; believe their actions control others’ behavior
• identify with opposite sex parent
• maintains fantasies of parent’s return
• fears abandonment
• yearning for absent parent

Reactions

• regression in behavior, bed wetting, thumb sucking
• irritable
• aggression and hostility

Caregiver Responses

• attention
• nurturing through cuddling
• explain changes that are occurring
• teach appropriate ways to release hostility, aggression
• reassure of love

This is a very helpful packet of information for divorcing parents. There’s also a great piece on creating a strong single-parent household and dealing with post-divorce reality, which brings its own share of ups and downs.

Divorce is never easy on the children involved, but the folks at Rainbows have put some strong tools in place to help ease the transition.

Oftentimes, people wonder how much they should tell their children about their divorce. There are a lot of challenges that divorcing couples must wade through with their children. It’s not just about custody and parenting time. There is an ocean of emotional issues to swim through. How do you explain the divorce to your children? How do you cope with your own whirlwind emotions while still helping your children through theirs?

Here are some tips to help you through your communication with your children:

• Prepare ahead of time. Be ready for the hard stuff. This is a confusing time for your children, regardless of what age they are. Their world is being changed forever, and they may be scared and uncertain or feel like they have to take sides. Those occasionally painful or awkward questions will arise, and when they do, it will be easier if you have prepared yourself emotionally. If you start to get frustrated or upset, take a few breaths and try to remember that they are just as upset as you are and will need to be comforted.
• Be civil. Nothing puts children in a more difficult spot than being privy to the betrayed feelings and hostile emotions of one or both parents. Children already have a sense of responsibility regarding their parents’ divorce, they may wonder if it was something they might have done to cause the divorce ”“ or if there was something they could have done to prevent it. Protect them from the glare of the strong emotions you are likely feeling and stay away from negative characterizations of your spouse.
• Be honest. Children are very in tune to the changes in the atmosphere and mood in their household. Even if you have not mentioned a single word about the divorce to them, they may already be aware that things are not all as they should be. They do not need to know every detail about your divorce, but what information you do provide should be honest.
•  Focus on them. You are going through a very difficult time right now, even if your divorce is amicable. So are your children. It is perfectly understandable and okay for them to feel upset, sad, or scared during this process. Listen to their questions and concerns and answer thoughtfully, no matter how hard it seems when faced with your own struggles.
•  Find a confidante. Find someone you can vent your emotions to, so you don’t have bottled up emotions that may spill over into your interactions with your children. Your soon-to-be-ex-spouse is still your children’s parent, and they are likely experiencing their own emotional ups and downs. A good confidante can help you avoid being tempted to give them yours. If you can, consider speaking to a therapist about the process.
• Spend quality time with your children. It can be easy to get caught up in your own challenges, so set aside some time especially for your children. Ideally, they should spend time alone with both parents, so they still understand that they are important to you and that you won’t abandon them. Find fun things to do that take you and your kids away from the wave of emotions all of you are likely experiencing ”“ take a nature walk, watch the sun set, play ball, whatever you enjoy doing together. Even little breaks can help everyone maintain their emotional balance.

Conclusion

What children want more than anything during a divorce is to feel like things will be normal again ”“ even if it is a new normal. They need to know they are still loved, valued, and cherished. There will be good days and bad days with kids during the process, and their emotions will manifest in many ways, from acting out to withdrawal. They may be confused, angry, and scared. Remember to find small respites in the day to make things feel normal again. Taking care of yourself is also important because it allows you to take care of them.

Summer is right around the corner in Colorado””which means school is out and kids’ schedules are about to change. For separated or newly divorced parents, summer can bring added quality time spent with the kids, but also worry and anxiety as parents juggle modified schedules, summer vacations, and visits from out-of-town family and friends.

Here are a few tips to make adjusting to summer schedules easier for you and your ex:

• Review your co-parenting plan. When you divorced, you may have already created a parenting plan that includes summer vacation. Every summer brings changes to schedules, from camps and summer vacations to visits from out of town friends and relatives. All can impact your co-parenting plan. Further, summer schedules for children can change a parent’s schedule, with camps or other care arrangements starting or ending at different times. Review your parenting plan and adjust for summer. When are vacations scheduled? Are grandparents visiting? Where might scheduling conflicts arise and what are backup plans for childcare then?
• Communicate. Whether you want to take your child on your vacation or enroll him or her in a summer camp, talk with your ex as soon as possible. Check that your plans and your ex’s plans are compatible. If they are not, start discussing necessary changes early. Do not let yourself be caught off guard once you have already made plans.
• Be detailed. Create a summer plan. Who has your children when? Are you alternating weeks or weekends? Will either of you have your child with you for a longer period of time during the summer? How about who will be picking up your children after summer care and when? Delineate it all on paper (or on the computer, as the case may be).
• Talk to your kids. Older children will likely have some input over summer schedules, so be sure and engage them early as plans for the summer begin to solidify. What activities will they be involved in over the summer? Will they attend summer camp, daycare or a combination of both? Be sure and include your children in conversations about the impact of summer schedule changes and what it might mean to co-parenting arrangements.
• Share costs. Summer vacations and events all cost money. Review your separation agreement. Does your child support include extra summer activities, such as daycare? If not, be ready to talk to your ex about sharing the costs of unforeseen joint expenses.
• Do not stick your kids in the middle. Summer vacation is a time of fun and relaxation for your children. Do not make them choose between you and your ex. You can have plenty of fun planned without making it a competition between you and your ex.

One of the most challenging parts of co-parenting is cooperation. It is also the most important part. By planning and communicating with your ex in a civil and cooperative manner as summer schedules emerge, you can make the school break fun and stress-free for both your children and yourself.

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.