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reversing order determining paternity of biological father when the best interests of the child had not been considered in determining paternity between presumed father based upon marriage and presumed father based upon genetic testing
Summary of this case from Rydberg v. RydbergOpinion
No. 99SC90
September 11, 2000
Certiorari to the Colorado Court of Appeals
Law Office of David M. Herrera, David M. Herrera, Fort Collins, Colorado, Law Office of Cris de la Torre, Cris de la Torre, Fort Collins, Colorado, Attorneys for Petitioners.
Mark K. Workman, Fort Collins, Colorado, Attorney for Respondent.
Carole Deeny Carnahan, Guardian Ad Litem, Fort Collins, Colorado.
JUDGMENT REVERSED AND CASE REMANDED
This case concerns the interpretation of Colorado's Uniform Parentage Act (the UPA), and causes us to determine what considerations that Act directs the courts to include in making paternity decisions. Specifically, the case involves a young girl, S.R.H., who was born in 1994, when her mother was married to N.A.H. (Husband). N.A.H. was identified on the birth certificate as her father and accepted the child into his home. However, genetic tests demonstrate that, in fact, S.L.S. (Biological Father) is the biological father of S.R.H. Pursuant to Colorado statutes, both men can claim a presumption of being S.R.H.'s legal father. Because a child can have only one legal father, the court must resolve the competing presumptions afforded these two men and adjudicate paternity for the child. Colorado's UPA specifies that in the face of conflicting presumptions, courts should look to the weight of policy and logic in settling the conflict and adjudicating paternity. Accordingly, we determine that a question of paternity is not automatically resolved by biological testing, but rather calls upon the courts to consider the best interests of the child in analyzing policy and logic as directed by the statute.
We hold that the best interests of the child must be of paramount concern throughout a paternity proceeding, and therefore, must be explicitly considered as a part of the policy and logic analysis that is used to resolve competing presumptions of fatherhood.
In this case, the magistrate did not make express findings on the best interests of the child when he adjudicated Biological Father as the child's legal father. The court of appeals upheld the magistrate's adjudication, even absent such findings See In re S.R.H., 981 P.2d 199 (Colo.App. 1998). Since we conclude that the court must address the best interests of the child, we reverse the court of appeals and remand the case for further proceedings.
We granted certiorari on the question, "[d]id the District Court and the Court of Appeals erroneously fail to apply the best interests of the child standard?" Although the district court held that the magistrate's decision weighed the facts and "resolved them based upon his findings relating to the best interests of the child," the court of appeals did not directly address the best interests of the child in this case.
I. A.
On June 28, 1994, A.H. (Mother) gave birth to a baby girl, S.R.H. At the time of S.R.H.'s conception and birth, Mother was married to Husband and they lived together. Husband attended the child's birth, was listed on the birth certificate as the father, and accepted S.R.H. as his own child. During their twenty-year marriage, the couple periodically experienced marital difficulties and had a history of domestic violence. On one occasion, Mother temporarily moved out of state, and on another occasion, she visited a safe house for counseling for victims of domestic violence.
At a time when she and Husband were having difficulties, Mother became involved in an extramarital affair with a coworker, Biological Father. Mother would visit Biological Father's home, telling him that she did not want to return to her home because she feared Husband. During this time, Mother and Biological Father conceived S.R.H. Mother told Biological Father that he was the real father and that he would be listed on the birth certificate. For approximately eighteen months after S.R.H. was born, Mother left the child in Biological Father's care for ten hours every Friday while Mother worked. Biological Father also took S.R.H. on a weeklong trip out of state to meet his relatives.
Mother and Husband separated in November 1995, and she filed for dissolution of marriage. She alleged that Husband had assaulted her, and that he had not bonded with S.R.H. Shortly thereafter, however, Mother and Husband reconciled and began attending marriage counseling. In January 1996, Mother abruptly terminated Biological Father's visits with S.R.H.
As a result, Biological Father petitioned for a determination of his parent-child relationship with S.R.H. on March 5, 1996. Husband was unaware that S.R.H. was not his biological daughter until Biological Father initiated this action.
B.
After an initial hearing on April 22, 1996, the magistrate ordered genetic testing of the parties to determine whether Biological Father was, in fact, S.R.H.'s biological father. Biological Father submitted to such testing, but Mother did not present the child for testing. As a result, Biological Father moved for a declaration that he was the child's legal father under section 13-25-126(1)(a), 5 C.R.S. (1999), which provides that if a party refuses to submit to genetic tests, the court may adjudicate the question of parentage against that party.
The magistrate held a hearing on the issue on December 30, 1996. Prior to the hearing, the parties stipulated that paternity testing would show Biological Father to be S.R.H.'s biological father with greater than ninety-seven percent accuracy. At the hearing, the Guardian Ad Litem (GAL) recommended that Biological Father be allowed to pursue his paternity claim, and that the court assess the best interests of the child after the paternity determination.
On January 3, 1997, the magistrate issued an order declaring Biological Father to be the legal father. The magistrate recognized that under state law, Husband and Biological Father each were entitled to a presumption of legal fatherhood. He also recognized that the paternity statute required him to resolve the competing presumptions by considering policy and logic. See § 19-4-105(2)(a), 6 C.R.S. (1999). He then stated,
In this case the logically persuasive presumption is that the DNA testing is the most accurate way to determine who the father of the child may be. That individual is [Biological Father]. Therefore, unless this presumption is outweighed by considerations of public policy, it must control. The facts in this case do not rise to the level of showing that public policy would be served by declaring the respondent, [Husband], to be the father of the child. The Court acknowledges that [Husband] is and will continue to be an excellent and committed parent. However, this is not a case in which the Court is to select which male will do a better job of being the father of the child. [Biological Father] isn't just the sperm donor. He has shown that he wishes to be actively involved in the child's life. The record reflects that, throughout the life of the child, [Biological Father] has made reasonable attempts to see the child and be a part of the child's life. . . . Although the Court recognizes that there continues to be a strong presumption of legitimacy, that presumption is overcome by the logic of the scientific evidence.
Mother and Husband appealed this decision to the district court. The district court held that the magistrate should not have accepted the parties' stipulation as to the results of genetic testing. The district court judge stated that, "compliance with the Magistrate's order for genetic testing may eliminate the need to weigh logic and policy considerations in resolving any conflict between presumed fathers." The district court ordered the parties to complete genetic testing, and the magistrate to hold a second hearing on the issue of paternity.
Mother and Husband continued to delay genetic testing. As a result, Biological Father again moved for a declaration of paternity under section 13-25-126(1)(a). In May 1997, the magistrate repeated his order for genetic testing, and Mother and Husband then complied. The tests revealed that Biological Father could not be excluded as S.R.H.'s biological father, and that the probability of his parentage was 99.68% when compared to an untested, unrelated Caucasian male.
The magistrate held a second hearing on July 1, 1997. At the outset of the hearing, the magistrate reiterated that he was deciding between competing presumptions based on policy and logic. He then made factual findings, and again adjudicated Biological Father as S.R.H.'s legal father. The court then took additional testimony, which was directed at allocating parenting time, the reintroduction of Biological Father into S.R.H.'s life, and child support. On July 12, 1997, the magistrate issued his second order declaring Biological Father to be S.R.H.'s legal father. He also ordered S.R.H.'s name to be changed, and the parties to work with a psychologist to formulate a plan to integrate Biological Father into S.R.H.'s life.
In reviewing the magistrate's order in the context of the second appeal, the district court ruled that in "determining where the weightier considerations of policy and logic are to be found, the Court is to look closely at issues touching upon the best interests of the child." After assessing the evidence, the district court concluded that "[n]othing indicated to the magistrate that contact between [Biological Father] and [S.R.H.] would be contrary to [S.R.H.'s] best interest, nor was there any evidence indicating that for [S.R.H.] to become aware that [Biological Father] is her father would emotionally or in some other fashion harm her." Therefore, the district court held that the magistrate's decision that Biological Father should be S.R.H.'s legal father was not clearly erroneous.
The court of appeals upheld the district court's ruling that Biological Father is S.R.H.'s legal father. See In re S.R.H., 981 P.2d 199 (Colo.App. 1998). The court of appeals held that the presumption of legitimacy, which would favor Husband as the legal father, was not irrebuttable. See id. at 202. The court determined that evidence in the record supported the factual findings made by the magistrate and the district court, and that their findings as to the positive role Biological Father could play in S.R.H.'s life were not unreasonable or unfair. See id. at 203. Mother and Husband appealed that ruling.
II.
At the outset, we note the extraordinary importance of the outcome of a paternity proceeding. Such a proceeding determines who a child's legal father will be, and therefore, who will enjoy the rights and responsibilities of legal fatherhood. Parenthood in our complex society comprises much more than biological ties, and litigants increasingly are asking courts to address issues that involve delicate balances between traditional expectations and current realities. The determination of parenthood includes the right to parenting time; the right to direct the child's activities; the right to make decisions regarding the control, education, and health of the child; and the right to the child's services and earnings. See Michael H. v. Gerald D., 491 U.S. 110, 118-19 (1989). Legal fatherhood imposes significant obligations as well, including the obligation of support and the obligation to teach moral standards, religious beliefs, and good citizenship. See id.
A determination of legal fatherhood does not, however, by itself conclusively determine parenting time or support obligations. These are separate determinations that the trial judge must make. The term "parenting time" replaces notions of custody and visitation rights. The General Assembly recently clarified that children are not to be treated as property and apportioned between parents. Accordingly, we no longer use the term custody, but rather parental rights and responsibilities. See § 14-1-123, 5 C.R.S. (1999). Courts no longer adjudicate custody and visitation, but rather divide parenting time. See § 14- 10-124(1.5)(a), 5 C.R.S. (1999). Our holding today is consistent with the legislature's general understanding that children's interests must predominate in court proceedings that direct and define those children's lives.
Paternity proceedings are governed by Colorado's version of the Uniform Parentage Act (the UPA). See §§ 19-4-101 to -128, 6 C.R.S. (1999); see also R.McG. v. J.W., 200 Colo. 345, 349, 615 P.2d 666, 669 (1980). Under the paternity statutes, a presumption of fatherhood may arise in a number of different circumstances. See § 19-4-105(1), 6 C.R.S. (1999). These include when a child is born into an intact marriage, see § 19-4-105(1)(a); when a man and a child's mother married or attempted to marry either before or after the child's birth, providing certain other conditions are met, see § 19-4-105(1)(b), (c); when a man receives a child into his home and holds the child out as his natural child, see § 19-4-105(1)(d); when the man files a written declaration of paternity in a court registry, see § 19-4-105(1)(e); or when genetic tests show that the probability of a man's parentage is ninety-seven percent or higher, see § 19-4-105(1)(f) Thus, in a single situation, presumptions of paternity may simultaneously arise in favor of different men.
The UPA recognizes this by providing a mechanism to choose among competing presumptions: "If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls." § 19-4-105(2)(a). Competing presumptions must be resolved, because although a child certainly can have emotional attachments to more than one father figure, she can have only one legal father. See Michael H., 491 U.S. at 130.
In this case, competing presumptions of legal fatherhood arise. Husband benefits from two presumptions: the presumption of legitimacy and the presumption occasioned by accepting the child into his home and holding her out as his own. The presumption of legitimacy declares that "[a] man is presumed to be the natural father of a child if: a) he and the child's natural mother are or have been married to each other and the child is born during the marriage." § 19-4-105(1)(a). A strong public policy supports this presumption. See A.G. v. S.G., 199 Colo. 403, 407, 609 P.2d 121, 124 (1980) (stating that the presumption of legitimacy is "one of the strongest presumptions known to the law"); W.C. ex rel. A.M.K., 907 P.2d 719, 722 (Colo.App. 1995). The presumption associated with accepting the child as his own is closely related to the presumption of legitimacy and arises when a man "receives the child into his home and openly holds out the child as his natural child." § 19-4-105(d).
Biological Father benefits from a competing presumption that presumes a man to be a child's legal father if genetic testing reveals that he is the biological father. See § 19-4-105(f). Section 13-25-126 outlines the procedures for paternity testing and admission of the results into evidence:
(1)(a) In any action, suit, or proceeding in which the parentage of any child is at issue, upon motion of the court or any of the interested parties, the court shall order the alleged mother, the child or children, and the alleged father to submit to genetic testing . . . for the purpose of determining probability of parentage. If any party refuses to submit to these tests, the court may resolve the question of parentage against such party to enforce its order if the rights of others and the interests of justice so require. . . . .
(e) The results of such tests shall have the following effect:
. . .
(III) If the experts conducting the tests conclude that the genetic tests . . . show that the alleged parent is not excluded and that the probability of the alleged parent's parentage is ninety-seven percent or higher, the alleged parent is presumed to be the parent, and this evidence must be admitted. Other expert testimony can be offered to rebut the presumption, but cannot prohibit the presumption from attaching.
(IV) the presumption of legitimacy of a child born during wedlock is overcome if the court finds that the conclusion of the experts conducting the tests, as disclosed by the evidence based upon the tests, shows that the husband or wife is not the parent of the child.
Section 19-4-112, 6 C.R.S. (1999) also provides, "[u]pon motion of the court of any of the interested parties, genetic tests . . . shall be ordered and the results received as evidence, as provided in section 13-25-126, C.R.S."
Our task in this case is to determine what the General Assembly has directed courts to do in the situation presented by the facts of this case. The first question must be whether there are genuine competing presumptions, or whether one of the men who claims fatherhood is entitled to a conclusive determination.
We note that the parties have not themselves argued that biology defeats all other presumptions and conclusively establishes fatherhood. However, we address the issue in the interest of completeness.
Nowhere in the statutes does the General Assembly identify any presumption as conclusive. Specifically, section 19-4- 105 does not indicate that the presumption of legitimacy automatically outweighs the presumption of biology, or that the converse is true. In fact, no section of the UPA suggests that one presumption of fatherhood should be absolute or conclusive. Rather, the paternity statute indicates that any of the presumptions may be rebutted by clear and convincing evidence. See § 19-4- 105(2)(a); see also In re L.J.P., 2 P.3d 140, 142 (Colo.App. 2000) (remarking that the paternity statutes "plainly state" that paternity presumptions may be rebutted).
Other jurisdictions that have adopted the UPA have interpreted the presumption based on biology in the Act as rebuttable, rather than conclusive. See Child Support Enforcement Agency v. Doe, 963 P.2d 1135, 1155 (Haw.Ct.App. 1998) (holding that "genetic tests do not establish paternity, but can create a rebuttable presumption . . . . The court must give a presumed father the opportunity to rebut this presumption before ordering a final judgment"); In re Witso, 609 N.W.2d 618, 623 (Minn.Ct.App. 2000), reh'g granted, 2000 Minn. LEXIS 464 (Minn. 2000) (noting that the "limited consequence" of genetic testing is that it gives rise to one of two conflicting presumptions of fatherhood which must then be resolved on the basis of policy and logic), petition for further review granted; In re K.E.N., 513 N.W.2d 892, 897 (N.D. 1994) (holding that genetic testing results created a presumption which is rebuttable).
Similarly, the evidentiary statute does not conclusively elevate a biological presumption over other presumptions. That statute indicates that the presumption of legitimacy is overcome "if the court finds that the conclusion of the experts conducting the tests, as disclosed by the evidence based upon the tests, shows that the husband or wife is not the parent of the child," § 13-25-126(e)(IV); it does not state that blood evidence is conclusive of fatherhood in all circumstances, or that it automatically eliminates other presumptions of fatherhood. Additionally, although the evidentiary statute states that evidence of biological fatherhood must be admitted and that a biological presumption must attach, the presumption based on biology is still rebuttable. See § 13-25-126(1)(e)(III).
This understanding of the statutes is in accord with the evidentiary nature of presumptions. Presumptions generally do not conclusively resolve an issue, but create a prima facie case, which "is always subject to be[ing] overcome by evidence to the contrary." American Ins. Co. v. Naylor, 101 Colo. 34, 36-37, 70 P.2d 349, 351 (1937) (quoting Ward v. Teller Reservoir Irrigation Co., 60 Colo. 47, 50, 153 P. 219, 222 (1915)). The purpose of a presumption is to aid the trier of fact in ascertaining the truth at trial. See Denver Publ'g Co. v. City of Aurora, 896 P.2d 306, 318 (Colo. 1995) (stating that "we recognize that a presumption is a rule of convenience based on experience or public policy"); Murray v. Montgomery Ward Life Ins. Co., 196 Colo. 225, 228-29, 584 P.2d 78, 81 (1978); Naylor, 101 Colo. at 37, 70 P.2d at 351.
Both the paternity statute and the evidentiary statute contemplate trials on the issue of paternity, indicating that the presumptions of fatherhood are not conclusive, but are subject to adjudication. See § 19-4-105(2) (stating that presumptions may be rebutted in "an appropriate action" and that a voluntary acknowledgement of paternity is considered a legal finding of paternity on the date of a judicial proceeding); § 13-25-126(d) (stating that objections to blood tests should be made prior to trial); § 13-25-126(e) (regarding the admissibility of evidence at trial). Indeed, substantial portions of the UPA are directed at the right to a trial on the issue of paternity, and to the proper trial and pretrial procedures. See § 19-4-128, 6 C.R.S. (1999) (stating that any party may demand a trial on the issue of paternity); § 19-4-114(3) (stating that a paternity action shall be set for trial if the parties refuse the judge's pretrial recommendation); § 19-4-111, 6 C.R.S. (1999) (outlining pretrial proceedings). If either the presumption of legitimacy or the presumption of biology were conclusive, then a trial on the issue of paternity would never be necessary. Thus, it is evident from the statutory scheme as a whole that presumptions of fatherhood can be the starting point for an adjudication of paternity, not the end of the inquiry.
As a result, we conclude that the statute contemplates that neither the presumption of legitimacy nor the presumption based on biology is conclusive. Rather, the statutory scheme as a whole indicates that all presumptions are rebuttable, including the presumption based on biology. The statutes allow for the creation of various presumptions in favor of men who have claims to fatherhood of a child. When those presumptions conflict, then the statute directs the courts to resolve them on the basis of policy and logic. Accordingly, the next step is to analyze what the courts must consider in the policy and logic equation.
III.
The petitioners, Husband and Mother, argue that we should reverse the magistrate's determination of paternity because the magistrate failed to consider explicitly the best interests of the child as part of the policy and logic used to resolve competing presumptions. We agree, and hold that the best interests of the child must be considered as part of the policy and logic analysis used to decide legal fatherhood. We hasten to add that we are not, in our role as an appellate court, usurping the function of the trial court by anticipating any particular outcome once the trial court rehears this matter. We are not ruling on the ultimate question of whether it is in S.R.H.'s best interests to have Biological Father declared to be her legal father. Rather, we are announcing a test of law, and determining whether the magistrate's findings reflect application of that test.
A.
Although courts previously have considered policy and logic in resolving these competing presumptions, our courts have not had an opportunity to explain what factors are encompassed within "policy" and "logic." The court of appeals used this formula to address a similar conflict between the presumption of legitimacy and the presumption based on biology in W.C. ex rel. A.M.K., 907 P.2d 719. In that case, a mother engaged in an extramarital affair with the putative father, which resulted in the conception of a child. See id. at 720. The mother's husband believed he was the father as he was married to the mother at the time of the child's conception and birth. See id. After recognizing the competing presumptions, the court of appeals upheld the trial court's decision that the mother's husband should be confirmed as the child's legal father. See id. at 722-23. The trial court's decision was grounded in the particular facts of the case, in which the putative father made no effort to establish paternity for the first six years of the child's life, and the child had no relationship with the putative father. See id. at 721. In addition, the child was nine years old at the time of the paternity order, he suffered from hyperactivity and attention deficit disorder, and experts testified that the boy would suffer adverse consequences from learning that the man whom he believed to be his father was not his father. See id. at 277. Although the court of appeals focused on these facts, it did not employ any particular standard in resolving the case.
Clearly, the inquiry is fact-intensive, and the trial court's findings concerning paternity ultimately govern the outcome. However, today we clarify that the courts must focus on the best interests of the child and make determinations of paternity with that standard at the forefront.
B.
The UPA is replete with references to the best interests of the child. In fact, the stated policy underlying the UPA is the protection of the best interests of children. See § 19-1-102(1)(a), 6 C.R.S. (1999) (stating that one of the purposes of the Children's Code, which encompasses the UPA, is "[t]o secure for each child subject to these provisions such care and guidance . . . as will best serve his welfare"). Accordingly, the UPA specifically directs trial judges to consider the best interests of the child at other phases of a paternity proceeding. For example, after a paternity action is filed, a trial judge must hold an informal hearing on the issue of paternity if such hearing would be in the best interests of the child. See § 19-4-114, 6 C.R.S. (1999).
In this case, the GAL recommended at the pretrial hearing that the magistrate assess the best interests of the child only after genetic testing had been conducted. In light of the statute, this recommendation was incomplete, and the magistrate should have focused on the best interests of the child at that point in the proceeding, as well as at later stages.
Additionally, following the pretrial hearing, the trial judge "shall evaluate the probability of determining the existence or nonexistence of the father and child relationship in a trial and whether a judicial declaration of the relationship would be in the best interest of the child." § 19-4-114(1), 6 C.R.S. (1999). On the basis of that evaluation, the trial judge may make a recommendation as to paternity or as to whether the action should proceed to trial. See id. One of the judge's options is to recommend an agreement under which legal fatherhood is not determined, but the putative father undertakes some financial obligation for the child. See § 19-4-114(1)(b). As part of such an agreement, the judge may order that the putative father's identity be kept confidential if in the best interests of the child. See id. Colorado law also directs trial judges to return to the best interests of the child standard after paternity has been established, when the court resolves issues of parenting time and decision-making responsibilities. See, e.g., In re Marriage of Francis, 919 P.2d 776, 779 (Colo. 1996); In re Marriage of Mann, 655 P.2d 814, 817 (Colo. 1982).
If the parties refuse to accept the judge's pretrial recommendation, the court may order genetic testing if it has not already been done, and the action will be set for trial. See § 19-4-114(3), 6 C.R.S. (1999). After the genetic testing has been conducted, competing presumptions of paternity may arise.
Of course, if genetic testing had been obtained before the putative father brought his paternity action, the court may need to resolve the competing presumptions at an earlier stage.
Hence, although the term best interests of the child is used numerous times throughout the legislation, at the stage of resolving competing presumptions, the UPA directs the court to use policy and logic as the dispositive criteria. See § 19-4- 105(2)(a). Therein lies the confusion, and Colorado courts have not addressed the role that the best interests of the child should play in measuring policy and logic. See W.C. ex rel. A.M.K., 907 P.2d 719 (resolving competing presumptions of legal fatherhood without referring to the best interests of the child).
However, it is clear to us that the General Assembly intended the whole paternity proceeding to be about the best interests of the child, and it is, therefore, axiomatic that the trial judge must focus on best interests in resolving the competing presumptions. The policy of the UPA is to meet the best interests of the child: such policy is necessarily a part of the final determination of paternity. Accordingly, we now hold that the best interests of the child must be part of a court's consideration of policy and logic when the presumption of legal fatherhood arises in more than one man. As the Washington Supreme Court recognized, "A paternity suit by its very nature, threatens the stability of the child's world." McDaniels, 738 P.2d at 261. This is especially true if the paternity action is filed after a child has established strong family ties with one parent. The outcome of a paternity action irrevocably alters a child's current family situation and her future. Therefore, "`[d]espite the numerous burdens and benefits of being a father . . . it is the child who has the most at stake in a paternity proceeding.'" Id. (quoting State v. Santos, 702 P.2d 1179, 1180 (Wash. 1985)). Because a paternity action significantly impacts a child, concern for her welfare should be paramount at every stage of the proceedings.
In adopting the best interests of the child standard, we must reject Husband and Mother's argument that we apply an endangerment standard. The endangerment standard generally applies when a change in custody or geographic removal is at issue. See In re Marriage of Francis, 919 P.2d at 783. The standard is more restrictive, inquiring whether the child's present environment endangers his health and whether any harm caused by a change would be outweighed by the advantage to the child. See id. at 779. A less restrictive standard is more appropriate in paternity actions, especially given a putative father's interest in establishing paternity.
Other states agree, and require that the best interests of the child be fully considered in resolving competing presumptions of paternity. See Ban v. Quigley, 812 P.2d 1014, 1018 (Ariz.Ct.App. 1990); Department of Health Rehabilitative Servs. v. Privette, 617 So.2d 305, 309 (Fla. 1993); In re Marriage of Ross, 783 P.2d 331, 339 (Kan. 1989); C.C. v. A.B., 550 N.E.2d 365, 373 (Mass. 1990); In re Paternity of B.J.H., 573 N.W.2d 99, 102 (Minn.Ct.App. 1998) (holding that the best interests of the child is part of the analysis for resolving conflicting presumptions); In re Paternity of "Adam", 903 P.2d 207, 211 (Mont. 1995); M.F. v. N.H., 599 A.2d 1297, 1302 (N.J. Super. Ct. App. Div. 1991); McDaniels v. Carlson, 738 P.2d 254, 261 (Wash. 1987); In re Paternity of C.A.S., 468 N.W.2d 719, 726 (Wis. 1991) (finding that state statutes explicitly direct courts to consider the best interests of the child).
A number of these states, including Kansas, Minnesota, Montana, New Jersey, and Washington, have adopted versions of the UPA.
At oral argument in this case, petitioners raised the suggestion for the first time that the trial court should consider the best interests of the child before ordering paternity testing. Section 19-4-111(1) regarding pretrial proceedings dictates that indeed trial courts should employ the best interests standard before ordering a hearing. However, to the extent that petitioners advocate that a court may forego paternity testing altogether if it would be in the best interests of the child, their argument must fail based upon the clear language of the next section of the current statute. The statute states that genetic testing "shall be ordered and the results received in evidence" upon motion of an interested party. § 19-4-112; see also § 13-25- 126; R.McG., 615 P.2d at 669 (holding that a putative father had standing under the UPA to bring an action to establish paternity). Certainly a policy argument could be made to the General Assembly that the courts should be able to consider whether biological testing would be in the best interests of the child, and bar such testing if it is not. However, that position finds no support in our current statute.
The National Conference of Commissioners on Uniform State Laws recently modified the UPA to support this position. The revision allows a court to deny genetic testing if the court determines that it would not be in the best interests of the child to disprove a relationship between a child and a presumed father. See Proposed Revisions of the Uniform Parentage Act § 608.
C.
Having determined that the best interests of the child standard applies, we next must determine what factors the court should consider in assessing those interests when competing presumptions of paternity arise. Some states have set out exhaustive lists of factors to be considered in determining the best interests of the child. See In re Paternity of "Adam", 903 P.2d at 211; M.F., 599 A.2d at 1302. Other states have left the determination largely to the discretion of the trial judge. See In re Paternity of C.A.S., 468 N.W.2d at 728.
We believe the latter course is the wiser. The General Assembly has chosen not to define the best interests of the child in the context of a paternity proceeding, although they have done so in the context of dissolution of marriage. See § 14- 10-124, 5 C.R.S. (1999). We defer to that choice. We hold merely that the trial judge should take into account all the facts and circumstances of the case. Affording the trial judge significant deference recognizes the myriad relevant facts that may properly influence a trial judge's decision. It also allows the judge to assess the credibility of the parties' competing claims as to the child's best interests, and to consider expert evidence if appropriate. However, all the facts considered by the trial judge should bear directly on the child's best interests. In some cases, the child's best interests may not match the best interests of any of the adults involved. Perhaps, as King Solomon observed many centuries ago in a battle over parentage, the true parent is the one who can elevate the best interests of the child over his or her own best interests.
Husband and Mother argue that society's interest in the preservation of marriage and intact families should be part of the court's determination. Were we to adopt this argument, we essentially would undermine our decision to recognize the paramount importance of the child's interests. We, therefore, direct the trial court to consider these factors only to the extent that they bear on the best interests of the child.
See, e.g., Root v. Allen, 151 Colo. 311, 318, 377 P.2d 117, 121 (1962) (stating that the best interests of the child, rather than biological ties, should control custody determinations, and that biological ties create only a rebuttable presumption of a right to custody).
IV.
Given our conclusion that a court must apply the best interests of the child standard in weighing competing presumptions, we must now turn to the ultimate question of whether the magistrate in this case did so. We conclude that the findings are insufficient to convince us that he did apply the best interests standard, and thus, we remand the case.
At the first hearing, the magistrate took testimony from the parties, Husband and Mother's marriage counselor, S.R.H.'s day care provider, and a friend of Husband and Mother's. All of that testimony might have pertained to S.R.H.'s best interests. In his order following the hearing, however, the magistrate failed to address the best interests of the child. The magistrate instead stated that the presumption in favor of the biological father must control unless outweighed by considerations of public policy. The judge acknowledged Husband's fitness as a parent as well as the role that Biological Father had played in S.R.H.'s life, and then concluded that the scientific weight of the genetic evidence overcame the presumption of legitimacy. None of the magistrate's analysis appears to have been directed at S.R.H.'s best interests.
At the second hearing, the magistrate first stated that he would decide between the competing presumptions based on policy and logic. He went on to recognize the public policy interest in preserving marriages and intact families. The magistrate noted that Husband and Mother's marriage, although strong at the time of the hearing, had been troubled in the past. He noted that Biological Father believed he was the father, had insisted on a relationship with S.R.H., and that Mother had accommodated his relationship with the child. The magistrate then found that Biological Father's relationship with S.R.H. ended because Mother reconciled with Husband and she wanted to prevent Husband from learning of S.R.H.'s true parentage. All of the magistrate's factual findings focused on the adults, and not on the impact that the adults' actions and relationships might have on S.R.H.
The GAL recommended that the court make further inquiry into S.R.H.'s best interests before making a paternity determination. The magistrate did not do so, however, and proceeded to conclude that Biological Father should be adjudicated the legal father. Only then did the court hear expert testimony, all of which was directed at parenting time and the reintroduction of Biological Father into S.R.H.'s life.
On the whole, we find that the record of the hearings does not indicate that the magistrate made findings concerning whether it was in the best interests of the child to name Biological Father the legal father.
Biological Father argues that the magistrate's determinations implicitly considered the best interests of the child, and therefore, no further action is necessary. We disagree, and find that the record contains insufficient evidence to conclude that the trial court clearly took evidence and engaged in an inquiry focused on the child's best interests. Because the magistrate did not affirmatively consider S.R.H.'s best interests, we remand this case for specific findings as to the best interests of the child. In conducting the analysis, the trial judge should take into account all the facts that may bear on S.R.H.'s best interests, including those facts that have developed since this appeal began.
When appellate review is hindered by the absence of factual findings as to key contested issues, we will remand the case for further fact finding by the trial court. See People v. D.F., 933 P.2d 9, 14 (Colo. 1997).
V.
In conclusion, we hold that when presumptions of paternity arise in more than one potential father, trial courts must take the best interests of the child into account as part of policy and logic in resolving competing presumptions. This is consistent with the statutory approach to paternity proceedings as a whole.
In this case, the magistrate's findings were not sufficient to demonstrate that he affirmatively considered the best interests of the child. Accordingly, we reverse the court of appeals and remand the case for additional findings consistent with this opinion.
JUSTICE COATS dissents, and JUSTICE RICE joins in the dissent.