By: Jessica Bryant
I recently came across a news article regarding a New York custody case. The child custody article focused on a case in which a New York judge awarded what was termed “tri-custody” over a child. The specific background was that a married couple entered into an open relationship with their neighbor. A child was born from the relationship, with the husband being the biological father and the neighbor being the biological mother. Prior to any legal proceedings, the parties had agreed that the child would be raised by all three of them, including the wife, who was not the biological mom. Eventually, though, the wife left husband to be with the neighbor. This resulted in the husband filing a suit for custody of the child and wife filing for a divorce from him. Husband and the neighbor agreed to shared custody, but wife filed her own case out of concern that if her relationship with the neighbor fell apart she would have to rely on the neighbor or her ex-husband to allow her to see the child. The judge ultimately awarded the neighbor (biological mother) primary residential custody, the husband (biological father) weekend time parenting time, and the wife Wednesday nights and one week of vacation during the school year, plus two weeks in the summer.
In making the ruling, the judge cited a court decision by New York’s highest court that allowed non-biological or adoptive parents to seek custody of a child if there was a prior relationship between them and the child. Of course I started to ponder how a case like this might be handled in Colorado.
Unlike New York, which presumably does not have a statute recognizing third party standing to seek custody (since the judge had to rely on prior case decisions and not statutory law), Colorado statutes make it possible for a third party to seek child custody when the minor child is not in the care of either parent or if the third party seeking custody had care and control of the minor child for at least six months within six months of filing. A more detailed discussion of laws related to third party rights can be found in a one of my prior Denver custody blog posts.
One of the things the New York judge did in his ruling was to rebuke the husband by stating that no one had induced him “to conceive a child with his wife’s best friend.” It’s hard to say how much this factored into the judge’s thought process in formulating his overall ruling. However, if Colorado law were being applied, the judge’s perception of the extra-marital relationship should have no impact on the custody decision. In Colorado, initial custody decisions are based on the “best interest” standard, which is comprised of a variety of factors, including, but not limited to, each party’s ability to encourage a relationship between the child and the other parent, the parties’ abilities to put the child’s needs ahead of their own, the mental and physical health of all parties involved, and the parties’ past history of involvement and interaction with the minor child. As long as the parties’ lifestyle choices did not, and do not, negatively impact the minor child, they should have no influence on a court’s custody decision. However, there is a caveat to the best interest standard when third parties are seeking custody of a minor child. Due to a parent’s Constitutional rights, a non-parent has a higher burden of proof to meet to obtain custody of the child. It is unknown how much, if any, this impacted the judge’s decision in the New York case but, if this happened in Colorado, the judge has to start with a presumption that the biological parents are acting in the child’s best interests.
If the New York case were heard in Colorado, the judge would certainly have had to ascertain that the wife had a relationship with the child that rose to that of a parental nature, that the wife had exercised parental control over the child, in one form or another, or was currently doing so, and that there was clear and convincing evidence that it was in the child’s best interest for the wife to have been awarded some modicum of custody. Without having a factual basis to assert custody rights the wife would have had no avenue for relief in Colorado. In Colorado, only grandparents can seek visitation orders with a child without meeting the hurdles of C.R.S. 14-10-123.
Finally, part of the question that arises out of this case is the role the biological mother played versus the wife. Husband and wife were not able to conceive a child so they entered into an agreement with the neighbor, before the child was conceived, that all three parties would raise the child together. In Colorado, if a person is donating sperm or an egg, that individual is not considered a parent of the child. There was no assisted reproduction in the New York case and the intent was clearly not that the neighbor’s role was merely to carry the child. Notably, Colorado does not have any specific laws about surrogacy.
Without knowing every detail of the New York case, it’s hard for this custody attorney to know exactly how the case would have been handled in Colorado. What I can state with a reasonable degree of certainty is that absent evidence of the wife’s involvement, she may have had no rights to the child at all, regardless of what was discussed ahead of the birth. I can also state that we have seen custody come in various forms over the years, including “tri-custody.” Normally, that might be a grandparent and both parents splitting time with and control of a child. One has to remember that each case is different, whether in Colorado or elsewhere.
