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.
