Establishing parentage, or legal parenthood, is an important step in child custody cases in the state of Colorado if there is a dispute over who the parents of the child are, or if there are multiple potential parents for a child. In cases where the parents are not married, it may be necessary to establish parentage in order to determine the legal rights and responsibilities of each parent. In this blog post, we will discuss the process of establishing parentage in child custody cases in Colorado.
What is Parentage? Why is establishing parentage important?
Parentage is the legal relationship between a parent and their child. In Colorado, there are two ways to establish parentage: through marriage or through a legal process called a paternity action.
What are the Presumptions of Paternity?
Colorado Statutes, specifically C.R.S. 19-4-105, explains that there are five ways that a person can be presumed a parent to a child:
- if the parents were married when the mother gave birth to the child, or the child was born less than 300 days after the marriage ended.
- If the parents tried to marry before the child was born, but were unsuccessful. For example, the parents get a marriage license before the child is born, but do not fill it out correctly or file it with the county clerk.
- After the child is born, the parents attempt to marry, but the marriage is invalid for some reason, and:
- the second parent acknowledges their parentage in writing and files it with the registrar of vital statistics; or
- the other parent is named on the child’s birth certificate; or
- the person writes a promise to support the child, or an administrative order is issued obligating the other parent to support the child.
- If the other parent receives the child into their home and openly holds the child out to be the child’s natural parent.
- If a genetic test result shows that the alleged genetic parent is not excluded as a genetic parent by a 97% or higher probability.
If more than one person can claim parentage based on any of the above, then a paternity action is necessary to rule out the other potential parents.
It is worth noting that parentage actions can involve parents that are same-gendered parents.
Marital Presumption of Parentage
When a child is born to a married couple, or a couple that tried to marry even if they were unsuccessful, or to a couple whose marriage ended within three hundred days of the child’s birth, there is a legal presumption that the husband is the father of the child. This is known as the marital presumption of parentage. This presumption can be rebutted by evidence that someone other than the husband is the biological father or that there are competing presumptions of paternity such as another person openly holding themselves out as the parent of the child, or someone other than the husband is the biological parent to the child.
Paternity Action
In cases where the parents are not married, a paternity action can be filed to establish parentage. A paternity action is a legal proceeding to determine the biological parent of a child and to establish legal rights and responsibilities for that parent.
Who can File a Paternity Action?
In Colorado, a paternity action can be filed by the mother, the father, the other parent if it is a same sex relationship, or the child. If the mother is married, her husband is presumed to be the father of the child. In this case, the husband may file a paternity action to establish that he is not the father of the child, or the other parent may file a paternity action to establish that the husband is not the legal father of the child.
In Colorado, all potential parents must be added to the case – meaning that any person who satisfies any of the potential paternity elements must be added as a respondent to the parentage action so the court can determine which parent-child relationship is in the child’s best interests. Click Here for a copy of C.R.S. 19-4-105 – the Presumption of Paternity statute.
How is Parentage Established in a Paternity Action?
In a paternity action, parentage can be established through stipulation, evidence, or genetic testing.
Genetic testing involves collecting DNA samples from the mother, the alleged father, and the child. The DNA samples are analyzed to determine whether the alleged father is the biological father of the child.
If genetic testing confirms that the alleged father is the biological father of the child, a court order can be issued to establish parentage. This court order will determine legal rights and responsibilities for the father, such as child support, parenting time, and decision-making authority.
What if the Alleged Father Refuses to Take a DNA Test?
If the alleged father refuses to take a DNA test, the court can order him to do so. If he still refuses, the court may make an adverse inference, meaning that the court may assume that he is the biological father based on other evidence presented in the case.
What if the Mother Refuses to Allow Genetic Testing?
If the mother refuses to allow genetic testing, the court can issue a court order requiring her to cooperate with testing. If she still refuses, the court may make an adverse inference, meaning that the court may assume that the alleged father is not the biological father based on other evidence presented in the case.
However, as genetic tests have improved over the years, it is possible for a genetic test to be completed without the mother’s genetic sample.
Conclusion
Establishing parentage can bean important step in child custody cases in Colorado. It is necessary to determine legal rights and responsibilities for each parent, including child support, parenting time, and decision-making authority. Parentage can be established through marriage or through a paternity action, which involves genetic testing to determine biological fatherhood. If you are involved in a child custody case and need to establish parentage, it is important to seek the advice of an experienced family law attorney to guide you through the legal process.
Brooke Alexander is an experienced Fort Collins Child Custody Lawyer with a team that is ready and prepared to help with all cases establishing parentage, as well as custody and divorce cases. Call us before your ex does.
