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Supreme Court of Colorado issues unique ruling regarding standing

Unique custody issues may arise when one parent passes away after divorce.
 
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    December 05, 2013 /24-7PressRelease/ -- Supreme Court of Colorado issues unique ruling regarding standing

Article provided by Polidori Franklin & Monahan LLC
Visit us at http://www.pfmlaw.com

When a parent passes away, the emotional, psychological and social effects on a child can be devastating. When parents are married at the time one dies, it seems logical and natural that the child will remain in the custody and care of the other parent. However, when the parents were divorced at the time of one parent's passing, custody issues may arise that present more unique circumstances.

Such was true in the case of In re Child B.B.O. The case was brought on behalf of the child by the child's adult half-sister against the child's mother. The case arose upon the death of the child's father. Until age three, the child lived with its mother outside of the State of Colorado. At the request of the child's mother, the child went to live with her father and half-sister in Colorado, where they all lived together for about six years. While, initially, the mother visited the child regularly, the child had no contact physically with her mother for the five years prior to the father's death in 2008.

When the father passed away, the half-sister petitioned for, and was granted primary parental responsibility for the child. It was at this point that the child's mother entered into a complicated legal battle concerning who was the rightful person to have parental responsibility over the child. The main argument in the case involved the issue of standing, which determines whether someone, legally, may bring a case. The mother sought to persuade the trial court that the half-sister did not have the right to seek parental rights under Colorado law.

Colorado statute currently provides that proceedings concerning parental rights can be brought by:
-A parent.
-A non-parent, but only if the parents are not taking physical care of the child.
-A non-parent who had the physical care of the child for 182 days or more, if the action is brought within 182 days of the termination of that care.
-Someone granted custody or allocation of parental responsibilities through a juvenile court order.

The trial court found that the half-sister had "standing" (the legal right) to bring the case because the child was in her physical care, stating that the mother "implicitly consented and acquiesced" to the half-sister caring for the child when she turned her over to the care of the father.

The mother appealed the trial court's decision, and the Court of Appeals found in her favor, based on a determination that a "non-parent must show that the child's parents voluntarily permitted the non-parent to share in or assume the parents' responsibility for the child's care."

On appeal to the Supreme Court of Colorado, the Court determined that the half-sister had the legal right to assert parental rights to the child, based on the portions of the law that provide access to the courts for a non-parent who is physically caring for the child, and for non-parents who have been caring for the child for more than 182 days (six months). While the mother disputed that either circumstance was the case, the Court relied on the plain language of the statute, and allowed the half-sister to continue with the case.

Family law and custody cases can be more complicated than anyone initially expects. If you are involved in a family law dispute, the assistance of an experienced family law attorney can help you navigate the court process, and provide the best possible outcome.



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