Who is a Parent Under Colorado Law?

There are two sections of Colorado law that address parentage: Title 19 which is called “The Children’s Code” and Title 14 which covers “Domestic Matters.” These statutes provide the structure for how to be a parent under the law in Colorado.

In addition, Colorado courts have had the opportunity to interpret these statutes in various kinds of cases. Those cases add clarification and nuance to the statutes, further defining the law.

Together, the statutes and the court decisions are what we have to go on in trying to figure out how different facts work under the law. But there are facts that the Court hasn’t addressed directly, and so there are questions that are unsettled in the law.  That is why it is hard to get a black and white answer.  

Title 19: The Children’s Code

The goal of this law is essentially to “To secure for each child…such care and guidance, preferably in his own home, as will best serve his welfare and the interests of society.”

It includes provisions about juvenile law, dependency and neglect, adoption, foster care, and parentage.

Article 4: Uniform Parentage Act

Article 4 of the Children’s Code describes ways to be recognized as a parent under the law. This law is specific to Colorado, but it is based on a model that many other states use too. There are many parts to Article 14 including how a parent-child relationship is established and how to establish parentage using assisted reproduction. Neither of these sections account for all the ways people create family.

The sections that determine how a parent-child relationship is established provides for a range of ways to “prove” that a parent-child relationship has been established not limited to gender, biology, or marriage.  Adoption is one kind of proof and assisted reproduction is another kind of proof. Surrogacy was recently added. Genetics is another kind of proof, but it is not exclusive; holding yourself out as a parent is yet another kind of proof. The law provides for several ways to prove that a parent-child relationship has been formed. This process results in an order establishing parentage or a parent-child relationship. The order establishing parentage in this way has the same legal effect as an order for adoption.The law recognizes “natural” parents (which can include parents with no genetic connection to the child) and “adoptive parents,”

The most common scenario where you have to prove that you are a parent is when someone else claims to be a parent as well and there is disagreement about who is the “real” parent.[1] Another common scenario where proving parentage comes into play is when the State needs to determine parentage either for benefits (a child needs resources) or when a child is being adjudicated “dependent and neglected.” The law is really built to figure out who the parent is when there is a conflict about parentage. It isn’t built to establish who the parent is when there are multiple people who could qualify but who are all in agreement about parentage. That is one reason why it doesn’t fit alternative family formation as well.  The assisted reproduction, surrogacy and adoption provisions address this to some extent, but none fit every imaginable situation. Furthermore the act is written in a heteronormative, gendered way. Although Colorado law is required to be read as gender neutral, many statutes are gendered.

Assisted Reproduction: 19-4-106

This provision of the law is written primarily for a heterosexual infertility context: it assumes that a medical provider is doing the insemination, and it assumes that the insemination is happening in a heterosexual marriage. It does acknowledge the possibility of other egg and sperm donation contexts, but doesn’t go into depth about those scenarios. Essentially – the law leaves many questions unresolved with regard to how egg sperm get combined, gestated, and cared for.

Surrogacy: 19-4.5-101-114

In 2021, the Colorado legislature passed the Colorado Surrogacy Agreement Act which makes surrogacy legal in Colorado. The Act defines a genetic surrogate, a gestational surrogate and intended parents and describes the basic requirements for a surrogacy agreement. The Act also explains that the intended parents can petition a court prior to the birth of a child for determination of the parent-child relationship. It also distinguishes this process from adoption.

Article 5: Adoption

Article 5 of the Children’s Code describes ways to be adopted and ways to adopt. It recognizes varieties of adoption: including “step-parent” adoption (where one person is married to a parent and wants to become a legal parent to their child, and the other parent agrees to the adoption or is deceased), and “second-parent” adoption, where the child only has one legally recognized parent before the adoption. When the one legal parent wishes to have another person become a parent they have to undergo a home-study, similar to the home study a family undergoes when they want to adopt a child from an agency or from another country.

Adoption recognizes that a person can have parents who will no longer be recognized legally as parents after the adoption; it also provides for processes to deal with those former parents. It does allow for a person to have two parents of the same sex.[2]

Another way a child can become available for adoption is if their parents have their legal parenting status terminated, or has to have abandoned the child for a year or more.

Title 14: Domestic Matters

The other piece of the parenting puzzle is the law that helps people figure out how parenting roles and parameters after a divorce, or when a non-parent is involved in taking care of a child.  This is handled by a section of law that is separate from the Children’s Code.

This part of the law allows the court to allocate “parental responsibilities” – so it is not the same as being a legal parent, but it does allow a court to give a non-parent the right to care for a child and make decisions for a child. The law provides ways for people to ask the court to assign parental responsibilities and the court uses the “Best Interest of the Child” standard to do so.

Before same-sex parents were legally recognized people would use this part of the law to argue that the same-sex partner should have “parental responsibilities” because it would be in the best interest of the child. They would argue that since the child had bonded with them, and the child relied on them “like a parent” that the court should honor that child’s need to have them remain in a parenting role.[3]

The best interest of the child standard is important because when a case has been before the court with open questions – the court has used that standard to figure out what to do.[4] It also factors in to the process the court uses to make a determination of parentage under the Uniform Parentage Act.

Conclusion

There are several ways to create a family under the existing law, given that the existing law does not directly address all circumstances none of these options may be perfect.  Each of the options comes with different pros and cons.  

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[1] There isn’t a law that requires anyone who is acting as a parent to prove that they are a parent, which means it is possible to just act as a parent and never have to prove it.

[2] The law is silent with regard to transgender people, but given the way the law allows parentage to be blind to gender, it certainly doesn’t prohibit a transgender person being recognized as a legal parent.

[3] Of course, people would also argue that the same-sex partner should not have parenting responsibilities because their moral flaws as gay people would not be in the best interest of the child.

[4] One Colorado case was called In the Interest of S.N.V., 2011WL6425562 (Colo. App. 12/22/11), in it were competing maternal claims. Birth mother versus the wife of biological father.  Birth mother had consented to the father and his wife raising the child although the birth mother claimed that the birth of the child was as a result of an intimate relationship between she and the father whereas the father and his wife maintained that the birth mother was simply a surrogate by arrangement.  The court found for the “intended parents” – not the biological mother. Another case called In the Interest of K.L.W. and J.L.W, No. 20CA1387 (Colo. App. 4/22/21) used the best interest standard as a factor in determining parentage under the Uniform Parentage Act when one parent claimed a genetic connection and the other claimed they had held themselves out as the parent. The case arose from a dependency and neglect action. One potential parent claimed that there could be more than two legal parents and that would be in the best interest of the children, but the court disagreed, and affirmed the lower court’s determination that the parent with the genetic connection was the legal parent.