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In re Custody, C.C.R.S. v. T.A.M

Supreme Court of Colorado. EN BANC JUSTICE LOHR dissents, and JUSTICE KIRSHBAUM and JUSTICE SCOTT join in the dissent. JUSTICE SCOTT dissents, and JUSTICE LOHR and JUSTICE KIRSHBAUM join in the dissent
Jan 30, 1995
892 P.2d 246 (Colo. 1995)

Summary

holding that best interest test applies to determine custody between biological and psychological parents

Summary of this case from V.C. v. M.J.B

Opinion

No. 94SC23

Decided January 30, 1995

Certiorari to the Colorado Court of Appeals.

JUDGMENT AFFIRMED.

Indian Law Clinic, Robert J. Golten, Boulder, Colorado, Attorneys for Petitioner.

David C. Johnston, Paonia, Colorado, Attorney for Respondents.

James Schum, Hotchkiss, Colorado, Guardian Ad Litem for C.C.R.S.

Children's Legal Clinic, Seth A. Grob, Shari Shink, Denver, Colorado, Attorneys for Amicus Curiae Children's Legal Clinic.

The National Association of Counsel for Children, Donald C. Bross, Marvin R. Ventrell, Denver, Colorado, Attorneys for Amicus Curiae The National Association of Counsel for Children.

The Colorado Chapter of the DeBoer Committee for Children's Rights, Ellen S. Minnig, Shelly Volkman, Englewood, Colorado, Attorneys for Amicus Curiae The Colorado Chapter of the DeBoer Committee for Children's Rights.


We granted certiorari to review the opinion of the court of appeals in In Re the Custody of C.C.R.S., 872 P.2d 1337 (Colo.App. 1993). The overriding question at issue in this case is whether the best interests of the child standard, without a showing of parental unfitness, is the appropriate test for resolving a custodial dispute between a natural parent and psychological parents under section 14-10-123, 6B C.R.S. (1987).

The court of appeals determined that (1) the respondents did not lack standing to seek custody under section 14-10-123 of the Uniform Dissolution of Marriage Act (UDMA); (2) section 14-10-123 could be used by non-parents, who have custody of a child in contemplation of relinquishment and adoption proceedings, to obtain custody of the child; and that (3) due process did not require a showing of parental unfitness where there is no termination of parental rights. We affirm the court of appeals' decision. We hold that the respondents have standing to petition this court for custody under either section 14-10-123(1)(b) or (1)(c). We further hold that the best interests of the child standard is the paramount consideration in a custodial dispute between a natural parent and the psychological parents. Accordingly, the trial court's award of custody to the respondents, because it was in the best interests of the child, was proper.

For clarity, T.A.M. and M.A.M., the psychological parents, are referred to hereinafter as the respondents.

I.

The trial court's undisputed findings of fact are as follows.

The record on appeal contains only certain pleadings, motions, documents, and the final court order regarding custody. The record does not contain transcripts of any of the hearings. For this reason, the statement of the facts is taken largely from the trial court's order, the briefs of the parties, and the court of appeals' opinion.

On March 5, 1990, C.R.S., the petitioner, gave birth to a son, C.C.R.S. At the time of birth, C.R.S. was twenty-three years old and unmarried. During her pregnancy, C.R.S. decided to place her son for adoption. On March 6, 1990, the day after the birth of C.C.R.S., C.R.S. signed a release-of-custody form and a document entitled "Petition for Relinquishment and Waiver of Notice and Petition for Termination of the Parent-Child Relationship of Natural Father," both drafted by the respondents' attorney.

The mother and the respondents, the prospective adoptive parents, were brought together through relatives and mutual acquaintances, and an agreement for private placement was arranged prior to the child's birth.

The custody agreement stated that, upon the birth of C.R.S.'s child, full custody would be given to the respondents, including authority to authorize medical treatment and make educational and religious decisions concerning the child pending finalization of the adoption proceedings. The petition for relinquishment stated that C.R.S. would relinquish her parental rights after the child was one year old so that the respondents could adopt him. It additionally stated that C.R.S. desired to relinquish the child because she believed she would be unable to provide a suitable social environment in which to raise the child and that she was motivated by the best interests of the child. Finally, the petition requested the court to terminate the parent-child legal relation of the natural father (the identity of the father of C.C.R.S. is unknown). The parties agreed that the petition for relinquishment of the mother's parental rights and petition for termination of the father's parental rights would be filed one year later. They contemplated that at that time a court could enter a final order transferring legal custody and guardianship of the child to the respondents.

The petition for relinquishment additionally contains an averment that C.R.S. is one-half Caucasian and one-half American Indian, but that she has no tribal affiliation and that the father of C.C.R.S. could not be an American Indian.

The custody agreement pledged C.R.S.'s cooperation in obtaining counseling necessary for the relinquishment proceedings and an acknowledgement of her awareness of her right to independent legal counsel. C.R.S. nevertheless did not consult an attorney when she signed these documents, and the petition for relinquishment was never filed in court. We conclude that the custody agreement is unenforceable and that the petition for relinquishment is invalid since C.R.S. had not been adequately counseled nor fully advised of the consequences of the relinquishment as mandated by § 19-5-103(1)(a), (4), (6), (7), 8B C.R.S. (1994 Supp.).

Pursuant to the agreement, the respondents were given physical custody of C.C.R.S. the day after his birth. C.C.R.S. lives with the respondents in their home located on Colorado's Western Slope and has continued to reside with them since that time. Despite the trial court's grant of continued visitation to C.R.S., C.R.S. has visited C.C.R.S. twice since his birth and has made little effort to establish a relationship with the child.

In its findings of fact, the trial court noted that C.R.S. has had a difficult time maintaining contact with C.C.R.S. due to the geographic distance between C.R.S.'s home and C.C.R.S.'s home and C.R.S.'s limited financial resources.

Approximately six months after C.C.R.S. was placed with respondents, C.R.S., through an agent, attempted to revoke her release of custody by informing the respondents that C.R.S. had changed her mind about the adoption. C.R.S., however, made no personal or written demand for the return of C.C.R.S., nor did she initiate any immediate proceedings seeking to establish or restore her right to custody.

The respondents refused to return C.C.R.S. to C.R.S. Instead, approximately two weeks later, the respondents filed a motion for a temporary order to restrain C.R.S. from taking C.C.R.S. and contemporaneously filed a petition for custody in the Delta County District Court. The respondents' petition alleged that C.C.R.S. had lived with them since birth, that a strong emotional and psychological bond had developed between the respondents and C.C.R.S., and that it was in the best interests of C.C.R.S. to award legal custody to the respondents.

The district court granted the temporary restraining order in an ex parte proceeding.

A magistrate held a hearing to determine temporary custody in October of 1990. The magistrate granted temporary custody of C.C.R.S. to the respondents with visitation rights to C.R.S. Though notified, C.R.S. did not attend this hearing nor was she represented at the hearing by an attorney.

Immediately prior to the temporary custody hearing, the Oglala Sioux Indian Tribe sought to intervene and have the proceedings transferred to the tribal court pursuant to the Indian Child Welfare Act, 25 U.S.C.A. §§ 1901- 1963 (1983). On July 23, 1991, the magistrate entered an order transferring jurisdiction to the tribal court. This decision was reversed on October 7, 1991, upon a finding that C.C.R.S. was not eligible for enrollment in the tribe and therefore the case was not subject to the Indian Child Welfare Act. That ruling has not been challenged.

On June 17, 1991, C.R.S. filed a renunciation of the custody agreement and the petition for relinquishment and requested that she be awarded custody of C.C.R.S. The renunciation was accompanied by an affidavit stating that she did not fully understand the import of either the custody agreement or the petition for relinquishment, that she did not have the advice of an attorney prior to executing the documents, and that she had changed her mind about relinquishing her parental rights.

In May 1992, the trial court conducted a two-day trial to the court in order to determine custody of C.C.R.S. The court heard testimony from the parties involved, two clinical psychologists regarding issues related to psychological attachment between adults and children and the consequences of interrupting such attachment, and two social workers from the Denver Department of Social Services. The court made extensive findings of fact. The court found that a parent-child relationship had developed between the child and the respondents and that a severance of that relationship would be psychologically traumatic to the child. The trial court acknowledged that the mother "has demonstrated that she can be a fit and proper parent" as evinced by her success with another child, a seven-year-old son. Notwithstanding C.R.S.'s fitness, the court determined that the respondents could provide a more "secure and healthy home environment" than the natural mother.

The custody proceedings were delayed significantly by several factors: (1) the Tribe's request to intervene and its request for a series of continuances that resulted in protracted litigation; (2) the withdrawal of C.R.S.'s counsel; (3) the appointment of new counsel; and (4) new counsel's preparation for trial of the custody proceeding.

Prior to the trial, C.R.S. advised her counsel that a man had acknowledged to her that C.C.R.S. was his child and had stated a willingness to help her in supporting him. The man's identity was revealed to the court and to the respondents' counsel, and the man was served with notice of the custody proceeding in early March 1992. No appearance was made in the custody proceeding by or on behalf of the alleged putative father.

The lower court found persuasive "evidence that significant, life-long bonding occurs from the time of birth through at least three years six months and the Child's [then] present age of two years two months is a very critical time to interrupt the bonding process."

The trial court additionally found that C.R.S. had demonstrated "stability in terms of a reasonably long-term residence in one location where she meets her responsibilities to keep rent paid timely and she maintains a clean home," and that psychological testing revealed that she "is maturing in her attitudes as an adult and a mother."

Based on these findings, the trial court concluded that it was in the best interests of C.C.R.S. to remain in the custody of the respondents. Accordingly, the court granted respondents both physical and permanent legal custody of C.C.R.S. subject to C.R.S. having continuing rights of visitation. The court additionally ordered the respondents to make reasonable efforts to actively promote C.C.R.S.'s awareness of both his Indian and Hispanic heritage. The court finally noted that any further custody proceeding would be decided under section 14-10-131, 6B C.R.S. (1987), which allows C.R.S. to seek a change of custody.

The trial court additionally found that the respondents shared some Indian heritage and were sensitive to the child's needs in identifying with his Indian and Hispanic heritage.

With one member of the court dissenting, the court of appeals affirmed. The majority held that (1) the respondents did not lack standing to seek custody under section 14-10-123, 6B C.R.S. (1987), of the UDMA; (2) section 14-10-123 could be used by non-parents, who have custody of a child in contemplation of relinquishment and adoption proceedings, to obtain custody of the child; and (3) that due process did not require a showing of parental unfitness where there was no termination of parental rights.

The dissenting judge argued that C.R.S.'s relinquishment was invalid, and that the respondents lacked standing under the UDMA to seek custody of C.C.R.S. The dissent additionally maintained that the respondents had gained temporary custody of C.C.R.S. through the Children's Code and that, once C.R.S. withdrew her consent to the relinquishment and adoption procedure, C.C.R.S. should have been returned to C.R.S. The dissent finally contended that, prior to applying a best interests of the child standard, there must first be a finding by clear and convincing evidence that the natural parent is unfit. Because C.R.S. was not found to be an unfit mother, the dissent concluded that her due process rights were violated.

We granted certiorari and now review the following three issues:

[1] Whether the court of appeals erred in concluding that respondents had standing to seek custody of C.C.R.S. under section 14-10-123, 6B C.R.S. (1987), of the Uniform Dissolution of Marriage Act.

[2] Does a biological parent have a statutory right to the return of her child when she changes her mind several months after purportedly relinquishing her child for adoption, where the mother's relinquishment fails to meet statutory requirements[?]

[3] Whether the court of appeals erred in holding that due process does not require a showing of parental unfitness prior to applying the best interest of the child standard to determine custody of a child under section 14-10-123, 6B C.R.S. (1987), of the Uniform Dissolution of Marriage Act.

C.R.S. maintains that the respondents lacked standing under section 14-10-123(1) to retain custody of C.R.S.'s infant once C.R.S. revoked her relinquishment. C.R.S. additionally claims that, upon her revocation of the relinquishment, the respondents no longer had the lawful right to retain physical custody of C.C.R.S., and that she had a statutory right under the Children's Code to the immediate return of her son. C.R.S. finally asserts that the trial court's failure to award her custody of her son, absent a finding of parental unfitness, offended her constitutional rights. We will address these contentions separately.

II.

Section 14-10-123(1)(b), 6B C.R.S. (1987), was adopted verbatim from section 401(d) of the UDMA. The statute states in pertinent part:

14-10-123. Commencement of Custody Proceedings — Jurisdiction. (1) A child custody proceeding is commenced in the district court or as otherwise provided by law:

. . . .

(b) By a person other than a parent, by filing a petition seeking custody of the child in the county where the child is permanently resident or where he is found, but only if the child is not in the physical custody of one of his parents[.]

In 1973, section 14-10-123 was amended by the addition of a new subsection, now codified as section 14-10-123(1)(c), 6B C.R.S. (1987). Under section 14-10-123(1)(c), a custody proceeding may be commenced:

(c) By a person other than a parent who has had physical custody of a child for a period of six months or more, if such action is commenced within six months of the termination of such physical custody.

Under section 14-10-123, a non-parent must first satisfy the threshold issue of "standing" by demonstrating who has "physical custody" of the child. If the biological parents have "physical custody," then a non-parent does not have standing to seek custody of the child. Conversely, a non-parent can establish standing by demonstrating that the child is not in the "physical custody" of one or both of the biological parents under section 14-10-123(1)(b), or that, under section 14-10-123(1)(c), the non-parent has had "physical custody" of the child for at least six months and a custody proceeding is commenced within six months after the physical custody has ended. If either subsection (b) or (c) is satisfied, then the non-parent has established standing and the court will consider the non-parent's claim for the custody of the child based upon the best interests of the child standard.

In concluding that the respondents had standing to seek custody under section 14-10-123, both the trial court and the court of appeals adopted a literal meaning of the term "physical custody." Both courts construed "physical custody" to mean actual, physical possession of a child. Specifically, the court of appeals stated:

In enacting § 14-10-123(1)(c), the Colorado General Assembly has indicated its preference for a more literal meaning of the phrase "physical custody." Under that section, a non-parent having had physical custody of a child for six months or more is granted standing to commence proceedings for legal custody of such child so long as such proceedings are begun within six months after the physical custody has ended.

The adoption of this section constitutes legislative recognition of the effects of "psychological parenting" upon the best interests of a child. See also § 19-3-702(5)(b), C.R.S. (1993 Cum. Supp.) (recognizing need for custodial stability and permanency planning for children adjudged dependent or neglected and removed from physical custody of their parents without terminating the parent-child relationship). It also makes clear that the Colorado General Assembly did not intend to equate "physical custody" with either "legal custody" or the "parental right to continued physical or legal custody."

In Re the Custody of C.C.R.S., 872 P.2d at 1341.

In contrast, C.R.S. argues that "physical custody" means more than actual, physical possession of a child and that a court should look to a number of factors, including the manner in which the child came into the non-parent's physical possession, the intentions and expectations of the natural parents when relinquishing the child, and the duration of the non-parent's possession.

Because the term "physical custody" is not defined in either the UDMA or the Uniform Marriage and Divorce Act (the Uniform Act), the determination of non-parents' standing to commence a custody action under section 14-10-123(1), 6B C.R.S. (1987), is contingent upon our construction of the term "physical custody." The interpretations offered by both the majority of the court of appeals and the dissent have support within the law.

The Uniform Act does not have a section equivalent to section 14-10-123(1)(c).

The plausibility of the majority's position is reinforced by the statutory rule that statutes relating to the same subject matter should be construed harmoniously in order to avoid inconsistent or absurd results. In re Marriage of Ford, 851 P.2d 295 (Colo.App. 1993). Both the UDMA, in the Domestic Matters Code, and the Uniform Child Custody Jurisdiction Act (UCCJA), in the Children's Code, apply to custodial dispositions of minor children, but each of the codes has different requirements for obtaining custody or maintaining an action. Because the term "physical custody" is defined in section 14-13-103(9), 6B C.R.S. (1987), of the UCCJA as "actual possession and control of a child," it would be contrary to common sense to define "physical custody" differently for purposes of the UDMA. Further, the majority's interpretation finds support in section 14-10-123.5(1), 6B C.R.S. (1987), of the UDMA which distinguishes between legal custody and physical custody in defining "joint custody."

The UDMA is concerned primarily with custody disputes between parents, or disputes involving other persons where there is no longer a custodial parent.

The Children's Code deals with the limited issue of neglect and abuse and involves the interests of the State in the well-being and welfare of the child.

C.R.S.'s interpretation of the term "physical custody" finds support in other jurisdictions that have adopted and interpreted provisions identical to section 401(d) of the UDMA. These cases have precluded standing for third parties where the natural parent retained legal care and control of the child. See Marshall v. Superior Court, 701 P.2d 567 (Ariz. 1985) (finding that a non-parent did not have physical custody where the biological parent retained legal rights to the child); Webb v. Charles, 611 P.2d 562, 565 (Ariz.Ct.App. 1980) (holding that, where a natural father "had not relinquished his legal rights to his son, . . . the grandmother had no standing under A.R.S. § 25-331(B)(2)"); In the Matter of McCuan, 531 N.E.2d 102 (Ill.App. Ct. 1988) (concluding that, to establish standing, non-parent must show that biological parent relinquished "legal custody," not just physical possession of the child); Henderson v. Henderson, 568 P.2d 177 (Mont. 1977) (finding that the term "physical custody" is not limited to having actual, physical possession of the child, but relates to the custodial rights involved in the care and control of the child).

These jurisdictions construed the term "physical custody" in accordance with the factual scenarios presented and the overriding policy of discouraging abductions of minors at the time of filing the petition for custody. For example, in Marshall, the natural mother was awarded custody in the marital dissolution proceeding. The natural father and his mother thereafter sought a change of custody and the trial court reasoned that it retained jurisdiction to change custody despite the fact that the child remained in the physical custody of the mother. In Webb, the child, who was living with his parents, was taken to his maternal grandmother's home on a temporary basis after his mother died. The father requested the return of the child and the grandmother refused. The father thereafter filed a habeas corpus petition. The court determined that legal custody of the child automatically vested in the father after the child's mother died. Similarly, in Henderson, the sister of the deceased father petitioned the court for temporary custody of the child upon the father's death. The aunt argued that the requirement that the children not be in the physical custody of one of the parents was met because, at the time of the father's death, they were being cared for by a babysitter. The court determined that this argument lacked merit. The court reasoned as follows:

In these cases, the definition of "physical custody" was based upon interpretations of sections identical to § 14-10-123(1)(b). None of these jurisdictions, however, had a section containing language similar to § 14-10-123(1)(c) to further assist them in construing the term "physical custody." By adopting § 14-10-123(1)(c), the Colorado legislature has indicated that it does not intend "physical custody" and "legal custody" to be used interchangeably.

"Physical custody" is not limited to having actual, immediate control of the physical presence of the child. Rather, this phrase relates to the custodial rights involved in the care and control of the child. To interpret this phrase otherwise would allow a nonparent to file a petition for custody anytime the child is out of the physical presence of the parent or parents, even if for a few minutes, or under the watchful eyes of an authorized babysitter, as here.

568 P.2d at 181 (citations omitted); see also McCuan, 531 N.E.2d at 106 ("[A] mother does not relinquish custody for purposes of the statute merely because she leaves a child with her in-laws for the weekend.").

In contrast, in the present case, C.R.S. voluntarily relinquished physical custody of C.C.R.S. to the respondents the day after he was born, with the intention of terminating her parental rights upon his adoption by the respondents. C.R.S. and C.C.R.S. were separated from one another during the crucial bond-forming time at infancy and this separation divested C.R.S. of physical custody of C.C.R.S. within the meaning of the statute. C.C.R.S. had been in his prospective adoptive family's home, and under the respondents' control, for approximately six months. The respondents only filed their petition for custody after C.R.S. advised them that she was withdrawing her consent to the adoption and wanted C.C.R.S. returned to her.

In In re Custody of Menconi, 453 N.E.2d 835 (Ill.App.Ct. 1983), the father placed his child with the child's paternal grandparents following the mother's death. The grandparents raised the child from her infancy till she was six-and-a-half years old. The father thereafter forcibly removed the child from the grandparents' home. The court held the grandparents had standing to petition for custody under § 601(b)(2) of the Illinois Marriage and Dissolution Act because the father had voluntarily relinquished physical custody of the child, the child had lived with the grandparents for an extended period of time, and the grandparents had integrated the child into their home.

Under the facts of this case, we hold that the respondents have standing to petition this court for custody. Since the respondents had physical possession and control of C.C.R.S. for six months before the filing of their custody petition, the respondents have standing to bring this action under either section 14-10-123(1)(b) or (1)(c). We therefore conclude that the court of appeals was correct in adopting its literal definition of "physical custody" that factors in the amount of time a child has spent in the actual, physical possession of a non-parent and the psychological bonds non-parents develop with children who have been in their physical possession and control for a significant period of time.

III.

We next briefly remark upon C.R.S.'s contention that, as the natural mother, she had a statutory right under the Children's Code to the return of her child after she changed her mind about placing C.C.R.S. for adoption.

The trial court awarded custody to the respondents pursuant to section 14-10-123 of the UDMA, and not pursuant to any provision in the Children's Code. The trial court recognized that the petition for custody was never filed under the Children's Code and therefore concluded that the Children's Code did not apply. The court of appeals affirmed. We agree that the Children's Code is inapplicable to this case.

A petition for adoption requires that the child is available for adoption. This can be accomplished by the natural parent's relinquishing his/her right to the child. Prior to the juvenile court's issuing an order relinquishing a natural parent's right to the child under the Children's Code, the relinquishing parent is required to obtain counseling from the county department of social services. See § 19-5-103(1)(a), (4), 8B C.R.S. (1994 Supp.). Moreover, the juvenile court must be satisfied that the parent has been advised of the consequences of his/her actions. See § 19-5-103(4), (7). It is undisputed that C.R.S. never obtained the counseling required by section 19-5-103(1). It is also undisputed that the petition for relinquishment was never filed in the juvenile court and the juvenile court never entered a final order of relinquishment.

Further, the custody agreement stated that the respondents had to wait a minimum of one year before they could file the petition for relinquishment and adoption. See also § 19-5-104(1)(d), 8B C.R.S. (1994 Supp.). The earliest date respondents could therefore pursue a relinquishment and adoption proceeding was March 6, 1991. On August 31, 1990, however, an agent of C.R.S. informed respondents that C.R.S. was revoking her consent to the relinquishment of C.C.R.S. When C.R.S. revoked her relinquishment of C.C.R.S., an adoption by the respondents was no longer legally possible. Accordingly, the parties did not have available to them the statutory procedures providing for adoption and relinquishment under Article 5 of the Colorado Children's Code, sections 19-5-101 to -304 (1994 Supp.). Therefore, the prospective adoption proceeding turned into a custodial dispute under the UDMA, which did not involve a termination of parental rights.

Despite the fact that the petition for relinquishment did not comply with the statutory requirements for effectuating a relinquishment, at the time that C.R.S. revoked the agreement, C.R.S. had no statutory right under the Children's Code to the automatic return of C.C.R.S. Rather, at this time, C.R.S. had legal avenues available to her, which she chose not to pursue, in order to reclaim her child.

Since the custodial proceedings before us now were never commenced in the juvenile court under the Children's Code, we need not further address whether C.R.S. has a right to the return of C.C.R.S. based upon non-compliance with the relinquishment and adoption proceedings in the Children's Code.

IV.

We now consider whether the trial court correctly analyzed the custodial dispute between C.R.S. and the respondents. The trial court applied the best interests of the child standard and awarded custody to the respondents. The court of appeals concluded that the trial court was correct in determining the issue of custody under a best interests of the child standard. The court of appeals additionally determined that, since this proceeding did not result in the termination of parental rights, no finding of parental unfitness was required under section 14-10-123.

C.R.S. contends that, as the biological mother of C.C.R.S., she has a fundamental liberty interest in the care, custody, and management of her child. Accordingly, C.R.S. asserts that awarding custody under section 14-10-123 in the absence of a finding of parental unfitness violates her fundamental liberty interest in C.C.R.S. C.R.S. cites Stanley v. Illinois, 405 U.S. 645 (1972), Quilloin v. Walcott, 434 U.S. 246 (1978), Lehr v. Robertson, 463 U.S. 248 (1983), and Santosky v. Kramer, 455 U.S. 745 (1982), to support her position. None of these cases is authoritative or persuasive. All of these cases dealt with the termination of parental rights by which the natural parent was denied "physical custody, as well as the rights ever to visit, communicate with, or regain custody of the child." Id. at 749. Further, all of these cases additionally determine that the natural parent enjoys certain procedural protections during a termination proceeding, and none supports C.R.S.'s assertion that she has a substantive custodial right to the child.

The child's best interests were implicitly considered by the Court in Stanley v. Illinois, 405 U.S. 645 (1972). Stanley was the first of four Supreme Court cases to address the rights of an unmarried father to establish or maintain a legally recognized relationship with his child. Id. at 646. The Court considered the constitutionality of a statute that denied an unwed biological father custody of his children after their mother died. Id. at 650-52. The Court rejected the State's presumption that an unwed father is an unfit parent. Holding the statute unconstitutional, the Court stated that due process requires the State to provide a due process hearing as to the father's fitness before terminating his parental rights in a dependency and neglect action commenced after the death of the children's mother.

In Quilloin, the unwed father challenged the constitutionality of a Georgia statute which required consent from married parents or unwed mothers of a child prior to the adoption of the child born out of wedlock, but did not require the consent of the unwed father. 434 U.S. at 249-50. The Court denied the unwed father's attempt to prevent the stepfather, now married to the natural mother of the child, from adopting the child. The Court held that the parental rights of a father who had never sought or had physical or legal custody of a child, and who had assumed only minimal responsibilities for the child's welfare and support, could be terminated in a step-parent adoption proceeding based upon the child's best interests rather than upon a finding of the natural father's unfitness. Id. at 255. The Court emphasized that its holding was not an attempt by the State or the adoptive parents to break up a natural family, but rather was a recognition of a de facto family unit already in existence. Id. Therefore, the biological relationship of the unwed father alone did not create a constitutionally protected relationship.

Lehr involved an unmarried father who contested a step-parent's adoption of his two-year old child. 463 U.S. at 249. Since the putative father had never established any personal, custodial, or financial relationship with his child, the State's failure to give him notice of the pending adoption proceeding, despite the State's actual notice of his existence and whereabouts, did not deny the putative father his rights of due process or equal protection. Id. at 256-65. The Court's decision turned on the relationship of the genetic father to the child:

The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessing of the parent-child relationship and make uniquely valuable contributions to the child's development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie.

Id. at 262.
The Court concluded that the statute, by differentiating between those fathers who had shown parental responsibility toward their children and those who had not, bore a substantial relation to the governmental objectives of "promot[ing] the best interests of the child, . . . protect[ing] the rights of interested third parties, and . . . ensur[ing] promptness and finality." Id. at 266.

In Santosky, the Court noted that natural parents have a fundamental liberty interest in the care, custody, and management of their children and that, "[b]efore a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence." 455 U.S. at 747-48.

The situation before us, in contrast, involves a custody dispute between a natural parent and psychological parents where the natural mother's parental rights are not being terminated by awarding custody to the respondents. Rather, C.R.S. was permitted to retain visitation rights with her child and accordingly, her parental rights were preserved in a limited context. Further, awarding custody to the respondents does not preclude a later change of custody to C.R.S.

In a custody dispute between the natural parents, a court determines custody by using a best interests of the child standard. Miller v. Miller, 129 Colo. 462, 271 P.2d 411 (1954); Grosso v. Grosso, 149 Colo. 183, 368 P.2d 561 (1962); see also § 14-10-124(1.5), 6B C.R.S. (1987). In determining a custodial dispute between a parent and a non-parent, Colorado courts recognize a presumption that the biological parent has a first and prior right to custody. This presumption may be rebutted by evidence establishing that the welfare of the child — i.e., the best interests of the child — is better served by granting custody to a non-parent. Abrams v. Connolly, 781 P.2d 651, 657 (Colo. 1989) (finding that custody of the child does not automatically vest with the non-custodial natural parent when the custodial parent dies; the best interests of the child are the overriding consideration); Root v. Allen, 151 Colo. 311, 318, 377 P.2d 117, 121 (1962).

Non-parent, as used in this analysis, "may include friends, relatives, grandparents, step-parents or child-care agencies, or, in other words, any person or agency other than the child's natural parent." 2 Homer H. Clark, The Law of Domestic Relations in the United States § 20.6, at 525 n. 1 (2d ed. 1987).

Courts in other jurisdictions have considered custody disputes between natural parents and non-parents. Some states recognize the importance of a child's maintaining psychological attachments to long-term unrelated caretakers and hold that custody should be decided in the way which best serves the child's interests. See, e.g., Ortner v. Pitt, 419 S.E.2d 907 (W.Va. 1992) (holding that, despite a lack of abandonment or unfitness on the part of the natural mother, the grandmother had become a "psychological parent" to the child, who had resided with her for a significant period of time, and thus custody must remain with her.); R.A.D. v. M.E.Z., 414 A.2d 211 (Del.Super. Ct. 1980) (finding that an award of custody of the child to the maternal grandmother was appropriate even though it was not shown that either of the natural parents was unfit or the child was neglected); Reflow v. Reflow, 545 P.2d 894 (Or.Ct.App. 1976) (concluding that the natural mother did not have the right to change custody of her children since removing the children from the third party's physical custody, pursuant to a marital dissolution action, would cause psychological and emotional harm. The court stated that the preference to be accorded the parent is subject to the best interests of the child in a marriage dissolution case, a juvenile court case, an adoption case, or in a habeas corpus proceeding.); Sorentino v. Family Children's Soc'y of Elizabeth, 367 A.2d 1168 (N.J. 1976) (holding that the natural parents have the burden of proving that no psychological harm results in removing child from home of prospective adoptive parents).

Other states hold that a natural parent may not be deprived of the right to custody absent a showing of parental unfitness. See, e.g., Sheppard v. Sheppard, 630 P.2d 1121 (Kan. 1981), cert. denied, 455 U.S. 919 (1982); Stuhr v. Stuhr, 481 N.W.2d 212 (Neb. 1992); Rozas v. Rozas, 342 S.E.2d 201 (W.Va. 1986); Barstad v. Frazier, 348 N.W.2d 479 (Wis. 1984).

Colorado courts have long recognized the child's best interests as a guiding principle in awarding custody to a person other than a natural parent. In Wilson v. Mitchell, 48 Colo. 454, 465, 111 P. 21, 25 (1910), involving a custodial dispute between the child's paternal grandparents and the natural mother, we stated that, "in controversies affecting the custody of an infant, the interest and welfare of the child is the primary and controlling question by which the court must be guided." The paternal grandmother in Coulter v. Coulter, 141 Colo. 237, 347 P.2d 492 (1959), was also awarded custody over the natural mother. This court held that a natural parent enjoys a preference in custody cases but does not necessarily obtain custody even if the natural parent is found to be fit, unless it serves the best interests of the child. Id. at 241, 347 P.2d at 494. In discussing Wilson, the Coulter court stated:

While the Wilson case indicates that the natural parents have a first and prior right to custody, we do not interpret it as requiring that custody be awarded to the parent or parents merely because the evidence shows fitness and ability to care for the child. The controlling factor, recognized and applied in all of these cases, and confirmed in the Wilson case, is the welfare of the child.

Id.

The court also quoted from Hocheimer's Custody of Infants, as follows:

"Unquestionably when the power of the court is invoked to place an infant into the custody of its parents and to withdraw such child from other persons, the court will scrutinize all the circumstances and ascertain `if a change of custody would be disadvantageous to the infant.' If so, the change will not be made, `and it matters not whether it is through the fault or the mere misfortune of the legal guardian that the infant has come to be out of his custody.'"

Id.

In Devlin v. Huffman, 139 Colo. 417, 339 P.2d 1008 (1959), the mother had been awarded legal custody of three children pursuant to a divorce proceeding. Unable to care for her children, the mother gave physical custody to her parents, who had custody for six years. She thereafter filed a habeas corpus action against her parents for the return of her children. The grandparents refused to acquiesce. We awarded custody to the grandparents based on the best interests of the children. We stated that "[t]he law is equally well settled that in custody proceedings the welfare and best interests of the children is the paramount consideration." Id. at 420, 339 P.2d at 1010; see also Walcott v. Walcott, 139 Colo. 27 [ 139 Colo. 37], 336 P.2d 298 (1959) (concluding that the paternal grandmother should be awarded custody over the natural mother based on the best interests of the child).

Further, in Root v. Allen, 151 Colo. 311, 377 P.2d 117 (1962), pursuant to a divorce agreement, a mother was awarded custody of her child subject to the natural father's visitation rights. The mother remarried and the child lived with the mother and her stepfather. At the time of the mother's death, the stepfather requested the natural father's consent to the stepfather's adoption of the child. The natural father refused and instead requested the stepfather to relinquish the child back to him, which the stepfather declined to do. The natural father thereafter filed a petition for habeas corpus. The trial court denied the habeas corpus petition. The trial court specifically found:

"That if [the child] were to return to [the natural father], if she were to leave [her psychological father] with whom she has lived for these years, the effect would be very damaging. The natural ties between parents and children do not endure unless they are nurtured. It is unmistakably important that children have a sense of continuity, or otherwise stated, that they are unable [sic] to avoid the damages which result from serious separations. This need that a child has for continuity, the need to avoid separation, is particularly marked at certain times in life."

Id. at 314, 377 P.2d at 119.

We therefore determined that, although the natural father was a fit and proper person, it was nevertheless in the child's best interests to remain in the custody of the stepfather with whom she had lived for five years. See also Petition of R.H.N., 710 P.2d 482 (Colo. 1985) (concluding that the best interests standard, and not parental fault standard, should be used in step-parent adoption cases).

Turner v. Hunter, 142 Colo. 129, 350 P.2d 202 (1960), is the only opinion which strays from our long-standing position. In Turner, this court stated that, absent a showing of unfitness, the natural mother's right to custody of her child, then ten years of age, prevailed over the sister of the child's deceased father, even though the child had been in the sister's custody since infancy. Turner ironically relies on Wilson, which held that the child's best interests are paramount, in arriving at its result. We conclude that Turner has been overruled by these later cases.

Based on our long line of cases involving custody disputes, and the foregoing case law from other jurisdictions, we conclude that the best interests of the child standard is the prevailing determination in a custody contest between biological parents and psychological parents. Our foremost priority is therefore to resolve the dispute in a way that minimizes the detriment to the child.

With respect to adoption proceedings that are dismissed, the legislature has recently adopted modifications to the Children's Code in which the legislature has asserted the best interests of the child doctrine as the paramount consideration in determining custody of the child. See §§ 19-5-104(4.7), 19-5-105(3.4)(c), 8B C.R.S. (1994 Supp.). These amendments indicate the legislature's sensitivity to the importance of an established bond between a child and the person in whose custody he resides, and lend further support for our conclusion that the best interests of the child standard is controlling in this case.

The court resolved competing interests in Borsdorf v. Mills, 275 So.2d 338 (Ala.Civ.App. 1973), which closely approximate those with which we are confronted here. In Borsdorf, the State had removed the child, then twenty-one months old, from the mother's custody and placed him in a foster home. Several years later, the foster parents sought to adopt him and the mother objected. The court of appeals granted the foster parents permanent custody, stating: "[T]he evidence and reasonable inferences therefrom that the child knows only the [foster parents] as his parents, loves and is loved by them and is assured of a future in their home, is more than sufficient to support the decree of the court that his welfare will be best served in their custody." Id. at 341.

The resolution of this custody matter must rest upon the judgment of the trier of fact, and we are reluctant to disturb a ruling of the trial court in light of the evidence presented, absent an abuse of discretion. Coulter, 141 Colo. at 242, 347 P.2d at 495. The trial judge had an opportunity to hear the testimony, observe the witnesses and their demeanor, evaluate the fitness of both the natural mother and the respondents, the psychological attachments developed by the child, and the cultural identity of the child and each set of parents, in making his findings. The trial court found that the respondents had become the psychological parents of the child and that disrupting the emotional bond that had formed between them "would likely prove devastating to the child and would result in long-term, adverse psychological effects on the child." The trial court therefore awarded custody to the respondents and gave the natural mother rights to visitation. The trial court did not terminate C.R.S.'s parental rights.

We have carefully reviewed the record in light of the claims advanced and have determined that the trial judge applied the appropriate standard to the facts and arrived at the correct result. As the trial court found, C.C.R.S. has lived with the respondents for the entire four and one-half years of his life and, to C.C.R.S., this is the only home he has ever known. C.C.R.S. is happy and well adjusted. The respondents have formed a loving relationship with the child, the respondents have raised C.C.R.S. since birth, the respondents have fulfilled C.C.R.S.'s psychological needs, have provided a stable home for C.C.R.S., and, above all, C.C.R.S. identifies the respondents as his parents. The continuation of this relationship can therefore be presumed to be in the child's best interests.

Conversely, C.R.S. has never assumed any of the responsibilities of a parent. C.R.S. has never contributed to the education and welfare of her child. She has failed to provide any monetary support and has failed to establish any emotional attachment or personal contact with C.C.R.S.C.R.S. visited the child twice prior to the trial, and, despite being awarded visitation privileges, C.R.S. has not seen C.C.R.S. since the trial.

Removing C.C.R.S. from the parents he has known, with whom he has emotionally bonded, and giving custody to his biological mother, who is virtually a stranger to him, ignores the welfare of the child and is likely to have a detrimental effect on his emotional and psychological well-being.

We have the difficult task of trying to resolve the custodial dispute in the least damaging manner to the child. Unfortunately, custodial contests tend to be emotionally charged situations where one party is not necessarily satisfied with the arrangement. Although we empathize with C.R.S., we agree with the court of appeals that it is in C.C.R.S.'s best interests to continue in the custody and care of the respondents.

V.

We affirm the court of appeals' judgment and hold that the respondents have standing to petition this court for custody under either section 14-10-123(1)(b) or (1)(c). We further conclude that the best interests of the child standard is the paramount consideration in a custodial dispute between a natural parent and the psychological parents. Accordingly, the trial court's award of custody to the respondents, because it was in the best interests of the child, was proper.

JUSTICE LOHR dissents, and JUSTICE KIRSHBAUM and JUSTICE SCOTT join in the dissent.

JUSTICE SCOTT dissents, and JUSTICE LOHR and JUSTICE KIRSHBAUM join in the dissent.


Summaries of

In re Custody, C.C.R.S. v. T.A.M

Supreme Court of Colorado. EN BANC JUSTICE LOHR dissents, and JUSTICE KIRSHBAUM and JUSTICE SCOTT join in the dissent. JUSTICE SCOTT dissents, and JUSTICE LOHR and JUSTICE KIRSHBAUM join in the dissent
Jan 30, 1995
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Case details for

In re Custody, C.C.R.S. v. T.A.M

Case Details

Full title:In the Matter of the Custody of C.C.R.S., a Child, and concerning: C.R.S.…

Court:Supreme Court of Colorado. EN BANC JUSTICE LOHR dissents, and JUSTICE KIRSHBAUM and JUSTICE SCOTT join in the dissent. JUSTICE SCOTT dissents, and JUSTICE LOHR and JUSTICE KIRSHBAUM join in the dissent

Date published: Jan 30, 1995

Citations

892 P.2d 246 (Colo. 1995)

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