Colorado Child Custody: How Is Legal Paternity Determined?

By: Jessica A. Bryant

Issue of establishing paternity are something I have seen in child custody, divorce, and separate paternity or child support actions. Most people have the belief that a child’s legal paternity is the same as their biological paternity, except in cases of adoption; however, that is not always the case. Legal paternity is determined by the decision of the court, if there are disputes as to the child’s paternity. The way the court determines legal paternity is based on consideration of presumptions of paternity. Pursuant to statute, C.R.S. 19-4-105, a man is presumed to be the natural father of a child in certain circumstances, including:

• The man and the child’s natural mother are or have been, married to one another and the child was born during the marriage, or within 300 days after the marriage is terminated by death, annulment, invalidity of marriage, divorce, or decree of legal separation.
• Before the birth of the child, the man and child’s natural mother attempted to marry in apparent compliance with the law, even if there is a chance the marriage could be declared invalid and the child is born during the attempted marriage or within 300 days of its termination or termination of cohabitation.
• After the child’s birth the man and the child’s natural mother married, or attempted to marry each other and he acknowledge his paternity of the child in a writing filed with the court or registrar of vital statistics, he is named as the father on the birth certificate with his consent, or he is obligated to support the child under a written voluntary promise or by court or administrative order.
• While the child is under the age of 18, the man receives the child into his home and openly holds him out as his natural child.
• He acknowledges paternity of the child in a writing filed with the court or registrar of vital statistics, with prompt notification to the child’s natural mother, and without dispute from the child’s natural mother within a reasonable time; or
• Genetic tests show the man is not excluded as the probable father and that the probability of his parentage is 97% or higher.

Other Factors That Determine Paternity

Thus, as it can be seen, genetic testing showing a child is a man’s biological child is only one presumption of paternity, it is not necessarily the determining factor. If there are two or more conflicting presumptions of paternity, the court determines legal paternity based on the weightier considerations of policy and logic. In making such determination, the law sets forth that the court is to consider “all pertinent factors,” which can include (but are not only limited) to:

• The length of time between the proceeding to determine paternity and when the presumed father was put on notice that he may not be the genetic father;
• How long the presumed father has acted in the role of father to the child;
• The facts around the presumed father’s discovery of his possible non-paternity;
• The child’s relationship with the presumed father and vice versa;
• The child’s age;
• The relationship, if any, the child has with any of the fathers or presumed fathers;
• The extent of the passage of time reducing the chances to establish the paternity, and a child support obligation, of another man;
• Any other factors that may arise from the disruption of the father-child relationship or the chance of other harm to the child.

While it may still seem obvious that the “weightier considerations of policy and logic” should find the biological father to be the legal father, it is not that simple. As is clear from the factors above, part of the court’s consideration is what effect the determination will have on the minor child, and the court strives to act, and decide, in the child’s best interest. In fact, the Colorado Supreme Court has even stated that “a question of paternity is not automatically resolved by biological testing, but rather calls upon the courts to consider the best interest of the child in analyzing policy and logic as directed by the statute.” See N.A.H. & A.H. v. S.L.S., 9 P.3d 354. Thus, it is not as clear cut as solely relying on biological testing. For cases where there was a child born of the marriage, but a father later learns he was not the biological father, or for men that have held themselves out as the child’s father and raised them as their own, only to later learn they are not the biological father, that is not the end of the inquiry. Those men may still be deemed the legal father of the child, with all associated rights and parental responsibilities, even if another man is the biological father.

As a Denver family law lawyer, it is my advice that people assert their rights early, including requesting testing if they have a shadow of a doubt as to whether they are the child’s biological father. Conversely, a prospective father should not wait too long to seek to establish paternity if they believe a child is theirs.