In re Parental Responsibilities of A.C.H. and A.F

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
March 21, 2019

2019COA43

No. 17CA2105, Parental Responsibilities Concerning A.C.H. —
Family Law — Parental Responsibilities — Psychological Parent
— Child Support

A division of the court of appeals considers whether a

“psychological parent” — an unrelated person who has received

parenting time and decision-making responsibility for a

nonbiological child under section 14-10-123(1)(b), (c), C.R.S. 2018

— may also be ordered to pay child support to the biological parent

of that child. The division concludes that section 14-10-115, C.R.S.

2018, permits a district court to impose a child support obligation

on a psychological parent when that person sought the legal right to

the same parental responsibilities as a natural or adoptive parent,

and was granted parental responsibilities under section 14-10-123.
COLORADO COURT OF APPEALS 2019COA43

Court of Appeals No. 17CA2105
El Paso County District Court No. 16DR30207
Honorable Eric Bentley, Judge

In re the Parental Responsibilities of A.C.H. and A.F., Children,

and Concerning Anastasia C. Magana,

Appellant,

and

Justin Lee Hill,

Appellee.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE RICHMAN
Román and Berger, JJ., concur

Announced March 21, 2019

The Kanthaka Group, John Scorsine, Colorado Springs, Colorado, for Appellant

No Appearance for Appellee

Sherman & Howard L.L.C., Jordan M. Fox, Denver, Colorado; Polidori,
Franklin, Monahan, & Beattie L.L.C., Peter L. Franklin, Lakewood, Colorado,
for Amicus Curiae the Colorado Chapter of the American Academy of
Matrimonial Lawyers
¶1 Today, more and more children are a part of nontraditional

families — they are raised by at least one person not biologically

related to them, but who acts as a parent. Commonly referred to as

a psychological parent, an unrelated person who meets statutory

criteria may seek an order for parenting time and decision-making

responsibility under section 14-10-123(1)(b), (c), C.R.S. 2018. See

In re Parental Responsibilities Concerning E.L.M.C., 100 P.3d 546,

559 (Colo. App. 2004) (A psychological parent is “someone other

than a biological parent who develops a parent-child relationship

with a child through day-to-day interaction, companionship, and

caring for the child.” (quoting In re Marriage of Martin, 42 P.3d 75,

77-78 (Colo. App. 2002))). In fact, this “statutory grant of standing

to a non-parent to seek legal custody of a child constitutes

legislative recognition of the importance of ‘psychological parenting’

to the best interests of a child.” In re Parental Responsibilities

Concerning V.R.P.F., 939 P.2d 512, 514 (Colo. App. 1997).

Recognition as a psychological parent can occur through a

contested proceeding, see, e.g., In re Parental Responsibilities

Concerning C.C.R.S., 892 P.2d 246 (Colo. 1995), or can be achieved

1
through agreement between the natural/adoptive and psychological

parents.

¶2 But the statute addressing child support, section 14-10-115,

C.R.S. 2018, does not define the term “parent,” let alone mention a

psychological parent. So it comes as little surprise that we are now

asked to decide whether a psychological parent, who fought for and

obtained a parenting time and decision-making responsibility order

for his ex-girlfriend’s biological child, can also be ordered to pay

child support on behalf of that child. For the reasons discussed

below, we answer this question “yes.” As a result, we reverse the

order denying child support from a psychological parent and

remand the case to the district court for additional proceedings.

I. Relevant Facts

¶3 In 2006, Anastasia C. Magana (mother) and Justin Lee Hill

(Hill) became romantically involved and immediately moved in

together. At that time, mother had a three-month-old son, A.F.,

whose biological father had been absent since his birth. In 2007,

mother gave birth to A.C.H., a daughter fathered by Hill, and all of

them lived together as a family until 2010 when the couple broke

up.

2
¶4 Following their split, the parties agreed to and followed an

equal parenting time schedule with both children.

¶5 In 2016, seeking permission to relocate to Texas, mother

petitioned the district court for an allocation of parental

responsibilities with respect only to A.C.H., the parties’ biological

child. Hill, asserting that he was A.F.’s psychological parent,

separately filed his own case seeking an allocation of parental

responsibilities for A.F., moved to consolidate the two petitions, and

argued for parental responsibilities as to both children, including

payment of child support (to him). The district court consolidated

the two cases.

¶6 Hill opposed the children’s relocation and sought to be named

their primary residential parent. He expressed a commitment to

provide the children with a stable, loving, and more permanent

home in Colorado. At Hill’s request, the district court appointed a

parental responsibility evaluator (PRE), a licensed mental health

professional, to investigate, report, and make recommendations on

parenting time. The district court subsequently granted an

unopposed motion for a supplemental PRE.

3
¶7 The parties eventually stipulated, and the PREs agreed, that

Hill was A.F.’s psychological parent, that mother could relocate to

Texas, that the children should not be separated, and that the

district court should enter the same parental responsibilities order

for both children.

¶8 After a three-day permanent orders hearing, the district court

• noted that neither party pursued a paternity finding

under the Uniform Parentage Act, sections 19-4-101 to

-130, C.R.S. 2018;

• determined that Hill was A.F.’s psychological parent

under section 14-10-123;

• found that “the children [were] well bonded and

attached to both parents”;

• concluded that it was in the children’s best interests

for them to reside primarily with mother in Texas, but

allocated substantial parenting time to Hill during

school breaks and over the summer, with a total of

107 overnights; and

• further concluded that mother should have sole

decision-making responsibility as to education and

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extracurricular activities for the children, but the

parties should share joint decision-making as to all

other major decisions.

¶9 The court reserved the issue of child support and asked for

supplemental briefing.

¶ 10 Later, in a separate, detailed, and thoughtfully written order,

the district court surveyed the reported case law in Colorado and

concluded that it could not impose a child support obligation on

Hill for the benefit of his psychological child, A.F., absent a “legal

parent-child relationship or some other narrowly defined

exceptional circumstance that is not present here.”

¶ 11 Mother appeals only that portion of the district court’s

judgment declining to award child support for A.F. Hill has not

filed a brief or appeared in our court. However, we have invited and

received an amicus brief supporting Hill’s position filed by the

Colorado Chapter of the American Academy of Matrimonial

Lawyers.

II. Discussion

¶ 12 Mother contends that as A.F.’s psychological parent, Hill is on

equal footing with her as a biological parent. This, she suggests,

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means that he also has the responsibility to pay child support for

A.F. We agree only to the extent that a psychological parent status

may, under the circumstances present here, trigger an obligation to

provide support under section 14-10-115.1

¶ 13 The amicus brief correctly argues that there is no statutory

provision expressly imposing financial obligations on a

psychological parent. In relevant part, section 14-10-115(2)(a)

provides that in a proceeding for child support the district court

“may order either or both parents owing a duty of support to a child

. . . to pay an amount reasonable or necessary for the child’s

support.” (Emphasis added.) Section 14-10-115, however, does not

define the term “parent.” 2

1 We acknowledge that a psychological parent does not generally
share equal footing with a biological parent. See Troxel v. Granville,
530 U.S. 57, 66 (2000) (“[T]he Due Process Clause of the Fourteenth
Amendment protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their
children.”).
2 Other statutes define “parent.” See § 13-92-102(4), C.R.S. 2018

(The statutory provision creating the Office of the Respondent
Parents’ Counsel defines parent as “a natural parent of a child, . . .
a parent by adoption, or a legal guardian.”); § 15-14-102(9), C.R.S.
2018 (probate code defines parent as one whose parental rights
have not been terminated); § 19-1-103(82)(a), C.R.S. 2018
(children’s code defining parent as either a natural parent of a child
or a parent by adoption); § 22-7-302(6), C.R.S. 2018 (The statute

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¶ 14 The amicus brief also correctly argues that no reported

decision by Colorado appellate courts expressly concludes that

child support must be paid to a biological parent by a psychological

parent. But no reported decision addresses whether a

“psychological parent” comes within the statutory term “parent” as

applied in section 14-10-115.

¶ 15 Though neither the statute nor any reported decision expressly

imposes financial obligations on a psychological parent, we find

support for the proposition that such obligations may be imposed in

the statute and in case law precedent.

¶ 16 “When interpreting a statute, we strive to give effect to the

legislative purposes by adopting an interpretation that best

effectuates those purposes.” In re Marriage of Joel & Roohi, 2012

COA 128, ¶ 18. Section 14-10-115(1)(a) outlines the statute’s

purpose:

creating the Colorado State Advisory Council for Parent Involvement
in Education defines parent as “a child’s biological parent, adoptive
parent, or legal guardian or another adult person recognized by the
child’s school as the child’s primary caregiver.”); § 22-33-
104.5(1)(b), C.R.S. 2018 (Under school attendance law of 1963,
“‘[p]arent’ includes a parent or guardian.”).

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(I) To establish as state policy an adequate
standard of support for children, subject to the
ability of parents to pay;

(II) To make awards more equitable by
ensuring more consistent treatment of persons
in similar circumstances; and

(III) To improve the efficiency of the court
process by promoting settlements and giving
courts and the parties guidance in establishing
levels of awards.

The first two purposes are relevant to our analysis. Imposing

financial obligations on a psychological parent helps to establish an

adequate standard of support. And when a psychological parent

occupies circumstances equivalent to those of a legal parent, it is

equitable to impose financial obligations on him or her, pursuant to

the factors outlined in the statute. To that end, our courts have

interpreted the term “parent,” as used in the child support statute,

to include adoptive parents. See In re Marriage of Ashlock, 629 P.2d

1108, 1109 (Colo. App. 1981).

¶ 17 Divisions of this court have upheld orders that child support

be paid by a person who is neither a biological nor an adoptive

parent. We conclude that a survey of those decisions, as well as

those reversing orders awarding child support against nonbiological

8
parents, provides guidance and informs how we should decide this

case.

¶ 18 In People in Interest of P.D., 41 Colo. App. 109, 580 P.2d 836

(1978), the district court permanently terminated the parental

rights of the child’s natural parents and awarded a husband and

wife legal and physical custody of the child, anticipating that they

would complete adoption proceedings. See id. at 111, 580 P.2d at

837. But before any adoption proceedings were initiated, the

custodial parents filed a dissolution action. See id. The resulting

decree of dissolution awarded custody of the child to the wife and

required the husband to pay child support, despite the husband’s

request to terminate custody and the accompanying child support

obligation. See id.

¶ 19 In reversing, the division held that because the husband was

only the child’s legal custodian, and not an adoptive parent, he was

serving in a voluntary capacity and could end his support obligation

at will. See id. at 112-13, 580 P.2d at 838. Pertinent to the court’s

decision was the fact that the husband had filed a motion to

terminate legal custody of the child. Id. at 111-12, 580 P.2d at 837.

9
¶ 20 By contrast, in In re Marriage of Bonifas, 879 P.2d 478, 478

(Colo. App. 1994), the couple signed an agreement to adopt a child

and expressly agreed to assume “full financial responsibility for a

child” and pay all expenses relating to the care of the child. The

couple raised the child for ten years but did not complete the formal

adoption. Id. When the couple separated, the district court ordered

the husband to pay child support for the child, noting that he had

accepted “full financial responsibility for a child.” Id. at 479.

¶ 21 On appeal, the husband argued that he had no duty to

support the child under the decision in P.D. and the child support

statute. Id. The division agreed with husband. Id. But it

concluded that, under a contract theory, husband’s agreement to

provide financial support was binding on him, and the child was a

third-party beneficiary of that agreement. Id. The division also

concluded that the husband had received some benefit of the

agreement as he was awarded “liberal visitation rights” with the

child. Id. at 479-80.

¶ 22 In In re Marriage of Rodrick, 176 P.3d 806 (Colo. App. 2007),

the division affirmed an order directing a custodial father to pay

child support for a nonbiological child as part of a dissolution

10
proceeding. Pursuant to an “Order of Permanent Parental

Responsibility” the husband and wife had obtained custody of the

biological child of a friend and had raised the child in their home for

several years. Id. at 809. As described by the division, the parental

responsibility order was designed to be a step toward adopting the

child, but adoption proceedings were not commenced. Id. The

couple later separated and filed a dissolution proceeding. Id. at

809-10. Husband stated at the dissolution hearing that he wanted

parenting time with the child but argued that since he was only a

legal guardian of the child, he had no duty to pay child support

under section 14-10-115. Id. at 810. Relying on Bonifas, the

district court concluded the husband had a contractual duty to

support the child and awarded child support. Id.

¶ 23 The division affirmed the order awarding child support but did

so on statutory grounds. The division concluded that

[t]he parental responsibility order was entered
under § 14-10-123, which is part of article 10
of title 14. It established a child support
obligation by imposing the duties on husband
and wife, described in § 19-1-103(73)(a), to
provide [the child] with the necessities of life.
Therefore, the trial court had the authority,
under § 14-10-115(1) and (17), to order
husband to pay child support.

11
Id. at 812. The division distinguished this case from P.D. because

husband had not asked the court to relieve him of custody or

terminate his relationship with the child; rather, he wanted

“parenting time and parental decision-making responsibility.” Id.

¶ 24 In People in Interest of B.S.M., 251 P.3d 511 (Colo. App. 2010),

the stepfather, who was not the child’s adoptive parent, declined to

exercise parenting time despite an out-of-state joint custody order.

He then refused to take custody of the child during a dependency

and neglect proceeding against the mother. Id. at 512. The

Department of Human Services initiated a petition and obtained an

order from the district court directing that, as joint custodian,

stepfather was obligated to support the child financially and pay

foster care fees incurred for the child. Id.

¶ 25 A division of this court, relying on (1) the definition of “parent”

in the Children’s Code, see §§ 19-1-115(4)(d), -103(82)(a), C.R.S.

2018, as the child’s natural parent or parent by adoption; (2) P.D.’s

holding that a child’s legal custodian may elect to terminate that

status at any time and has no legal obligation to continue

supporting the child; and (3) the distinction in Rodrick that the

12
psychological parent in that case had sought parenting time,

reversed the financial award against the stepfather. Id. at 513-14.

¶ 26 And in Sidman v. Sidman, 240 P.3d 360, 362-63 (Colo. App.

2009), the division determined that only the parents’ income, and

not the guardians’ income, can be included when determining child

support payable to the guardians under section 14-10-115. See id.

at 362. This was appropriate, said the division, because there was

no parental responsibility order and the guardians did not hold

themselves out as the child’s “de facto parents,” but instead were

designated his legal guardians by a court order. Id. at 362-63.

¶ 27 Thus, the amicus brief correctly points out that Colorado has

not obligated a nonbiological or nonadoptive parent to financially

support another’s natural child, absent the exception of an

expressed intent to adopt. But none of the relevant cases involved a

biological parent seeking child support from a recognized

psychological parent who had raised and supported a child as his

own, taken real and substantial legal steps to seek and maintain

the same parental rights as the biological parent, and obtained a

court order enforcing those rights.

13
¶ 28 In those cases where child support was ordered to be paid,

Bonifas and Rodrick, a common and, perhaps decisive, factor was

that the husband who was ordered to pay child support had sought

and received a continuing relationship with the child. This is the

case with Hill. In those cases where child support was not ordered,

P.D. and B.S.M., the husband and stepfather, respectively, had

taken affirmative steps to terminate the relationship with the child.

¶ 29 While we found no Colorado decision that deals with the

precise circumstances in this case — where a psychological parent

sought and fought for the same parental responsibilities as a

natural or adoptive parent — cases from other states have

addressed this situation and their decisions have heavily weighted

the actions of a psychological parent who seeks to maintain a

parental relationship with a child in determining child support

obligations.

¶ 30 A very recent Alaska Supreme Court decision addressed this

scenario. In Moore v. McGillis, 408 P.3d 1196 (Alaska 2018), the

stepfather, in petitioning for dissolution of marriage, sought legal

and physical custody for his biological daughter and his stepson,

the mother’s child from a previous relationship. Id. at 1198. He

14
had established himself as the stepson’s psychological parent and

had received summer and holiday visitation and shared legal

custody of him. Id. A few years later, the stepson’s biological father

reappeared and intervened in the case. Id. at 1198-99. The mother

argued that the stepfather could not maintain custody of the

stepson and yet absolve himself of his child support obligation. Id.

The Alaska Supreme Court agreed with mother:

[Stepfather] has not sought to disestablish his
parental relationship to the [stepson] here.
The trial court found that he has continued to
act as the boy’s psychological father, and [he]
has fought for and obtained continued
physical and legal custody of the child. We
have stated that those with legal custody of a
child are obliged to support that child.

Id. at 1203.

¶ 31 A decision by the Pennsylvania Supreme Court on this issue is

also pertinent. In A.S. v. I.S., 130 A.3d 763 (Pa. 2015), the child’s

stepfather “haled a fit [biological mother] into court, repeatedly

litigating to achieve the same legal and physical custodial rights as

would naturally accrue to any biological parent.” Id. at 770. The

court described the case as not a typical one “of a stepparent who

has grown to love his stepchildren and wants to maintain a

15
post-separation relationship with them.” Id. Instead, the stepfather

“ha[d] litigated and obtained full legal and physical custody rights,

and ha[d] also asserted those parental rights to prevent a competent

biological mother from relocating with her children.” Id. The

Pennsylvania Supreme Court held that, because the stepfather had

“taken sufficient affirmative steps legally to obtain parental rights,”

he “should share in parental obligations, such as paying child

support.” Id. at 770-71. The supreme court added, “[e]quity

prohibits [the] [s]tepfather from disavowing his parental status to

avoid a support obligation to the children he so vigorously sought to

parent.” Id. at 771. 3

¶ 32 The reasoning in these cases is persuasive. Here too, Hill held

himself out as A.F.’s father, almost from birth, by treating him as

3 Michigan, New Jersey, and Connecticut courts have also held that
a stepparent’s duty to pay child support after divorce can be
enforced by applying principles of estoppel. See Nygard v. Nygard,
401 N.W.2d 323, 326-27 (Mich. Ct. App. 1986) (applying promissory
estoppel to conclude that a husband who had agreed to raise an
unborn child as his own could be held responsible for child
support); see also Miller v. Miller, 478 A.2d 351, 357-58 (N.J. 1984)
(applying equitable estoppel to enforce child support where the
husband had discussed adopting the wife’s children and he had
prohibited any support from or visitation with the natural father
during their marriage); W. v. W., 779 A.2d 716, 720-22 (Conn.
2001). Mother in this case does not assert an estoppel theory.

16
his own. They lived together as a family for nearly four years, and

Hill is the only father A.F. has ever known. And even after the

parties broke up, Hill did not take his relationship with A.F. for

granted. He exercised equal parenting time with the child for the

next six years. When mother wanted to relocate with the child to

Texas, he initiated an allocation of parental responsibilities,

including a PRE investigation, and, at all times, he insisted that he

be named the child’s primary parent in Colorado. In the end, after

numerous hearings, the court ultimately granted him an order for

parenting time and decision-making responsibility for the child.

¶ 33 We laud his efforts to maintain this bond with the child, but

with the privileges of parenting should go the duties, including

financial support. We cannot embrace a situation in which a

psychological parent who fights for and obtains all the same

responsibilities of a legal parent does not also assume the

responsibility to pay child support. We find these circumstances

much more akin to those in Bonifas and Rodrick (where parents

attempted adoption and continued a parent-child relationship) than

to P.D. and B.S.M. (where former stepfathers denied that they were

the child’s parent).

17
¶ 34 We emphasize that here, as in Rodrick, the court has entered a

parental responsibilities order under section 14-10-123 that was

intended to be permanent. Like the order entered in Rodrick, the

parenting time and decision-making order entered in favor of Hill

imposes a duty to provide the child with the necessities of life.

Rodrick, 176 P.3d at 812.

¶ 35 We conclude that in cases like Rodrick and this one the district

court has the authority to determine that a psychological parent

owes a “duty of support” to the child within the meaning of section

14-10-115(2), and, upon such a finding, the district court has the

authority to impose a child support obligation on a psychological

parent.

¶ 36 We emphasize that our opinion is limited to those

psychological parents who have (1) established themselves as

“parents,” rather than “guardians”; and (2) sought and received an

intended-to-be-permanent allocation of parental responsibilities.

We are not creating a new class of stepparent obligors, nor are we

suggesting that the mere existence of a psychological parent-child

relationship, on its own, establishes a support obligation under

section 14-10-115. And we note that our opinion does not mean

18
that A.F.’s biological father, if found, is relieved from his duty to

support his child.

¶ 37 We acknowledge that the district court was persuaded on

public policy considerations in reaching its decision. Citing B.S.M.,

251 P.3d at 514, it stated:

A stepparent who tried to create a warm family
atmosphere with his or her stepchildren would
be penalized by being forced to pay support for
them in the event of a divorce. At the same
time, a stepparent who refused to have
anything to do with his or her stepchildren
beyond supporting them would be rewarded by
not having to pay support in the event of a
divorce.

The court further indicated that if it were to “impose a child support

obligation on [Hill] for caring for [A.F.] as if he were his own son, it

would unfairly penalize him for behavior that should be

encouraged, and it would create a perverse incentive for him to

diminish the relationship in order to reduce his child support

obligation.” And when considering the broader implications, it

added, “Good-[S]amaritan relatives who [take] on substantial

responsibilities with minimal or no compensation, could find their

humanitarian good deeds penalized in the form of a substantial

child support order.”

19
¶ 38 But Hill here did more than create a “warm family

atmosphere” with A.F. See id. He took active legal steps to place

himself on equal footing with the biological mother and prevent her

relocation. And he sought an allocation of parental responsibilities,

rather than an order of guardianship. By concluding that a

psychological parent, under these circumstances, is responsible for

child support, we “increase the likelihood that only individuals who

are truly dedicated and intend to be a stable fixture in a child’s life

will take the steps to litigate and obtain rights equal to those of the

child’s parent.” See A.S., 130 A.3d at 771.

III. Conclusion

¶ 39 We reverse that part of the district court’s order holding that it

was foreclosed from ordering Hill to pay child support as to A.F.,

and we remand with directions to further consider Hill’s child

support obligations in accordance with section 14-10-115.

JUDGE ROMÁN and JUDGE BERGER concur.

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