Same Sex Divorce and Child Custody Issues in Colorado

As we have earlier covered on this blog, same-sex marriages are now legal in Colorado because the United States Supreme Court decided not to hear any appeals regarding the constitutionality of same-sex marriage bans from the 10th Circuit. Now that same-sex civil marriages are recognized in Colorado, divorces are also possible, and with divorce will come child custody and visitation issues. Assuming both partners are legal parents of the child, the same standards will be used for child custody issues as are used when heterosexual couples divorce. The parents may both be legal parents of the child when the child is born into a same-sex marriage or when a non-biological or non-adoptive parent adopts his or her partner’s biological child through a second parent or stepparent adoption. The standard for child custody and visitation in that case will be the best interests of the child under

C.R.S. 14-10-123.4. However, if only you or only your same-sex spouse is your child’s legal parent, you may need to bring a paternity or maternity petition in order to obtain custody and visitation when you and your spouse separate. Based on prior case law, it does not appear that Colorado child custody and visitation proceedings will be handled any differently because of the legalization of same-sex marriage. In general, it is to be expected that the Colorado courts will place the child’s best interests first and award parenting time to the parent who is not a legal parent when that parent has acted as a parent throughout the child’s life, and when there is no other biological parent whose rights would be affected. A 2013 case, In re Parental Responsibilities of ARL, is instructive on the nuances that may be involved when same-sex parents have not obtained equal legal rights and responsibilities regarding the child during their marriage. In that case, the Colorado Court of Appeals heard a case in which two women, Havens and Limberis, began living together. The couple tried to have a child through artificial insemination, but it did not happen. Havens had a child through insemination by a friend without revealing it to Limberis. However, no father was identified on the birth certificate, and Limberis co-parented the child with Havens during the time they were together. The couple separated and reconciled multiple times, but the parents retained their equal parenting status through these separations. At one point, Limberis petitioned for a second-parent adoption, but the court denied it. She did not appeal. After the couple’s final separation, Havens terminated all contact between Limberis and the child and opposed Limberis’ petition for parental responsibilities, bringing the friend who had donated the sperm into the action. The friend had no interest in exercising any paternity rights. Limberis brought a maternity petition, arguing she was a presumed parent under C.R.S. § 19-4-105(1)(d) because she had held the child out as her own. The trial court denied both of Limberis’ petitions, ruling that she lacked capacity to bring the action. She appealed the denials. The appellate court explained that nothing in the law prohibited a child from having two same-sex parents, and that the language of the law was gender-neutral. It recognized that a child can have two legal mothers under the Colorado Uniform Parentage Act.

The court held that nothing limits parents’ fundamental liberty interests in the care, custody, and control of their children to heterosexual parents. Based on the court’s reasoning, however, it should be noted that there is a slight possibility that the case could have turned out slightly differently if the biological father been listed as the father on the birth certificate or sought paternity rights over the child. If you are considering a separation or divorce from your same-sex spouse and you share children, you may need representation for a maternity petition, paternity petition, or divorce proceedings. The knowledgeable and experienced Denver divorce lawyers of Plog & Stein can help you understand your rights and responsibilities and can prepare the best possible case for you. To schedule an initial consultation with a dedicated Colorado family law attorney, contact us today through our website or at 303-781-0322.