Family Law Attorney Kate Miller is the founder and owner of Miller Family Law,LLC in Denver, Colorado. Kate believes that divorce does not have to destroy lives, and wants to help her clients divorce as amicably as possible. She has the experience and skills to handle all facets of divorce and family law. In this podcast Kate answers questions regarding the assessment of the best interests of a child, paternity, and how a parent can protect their children during an emergency.
Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Kate Miller is a Denver attorney focused exclusively on the practices of divorce and family law. She has lived many of the issues regarding divorce and child custody, and is passionate about helping people through this process.
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Read the Transcript of this Podcast Below.
What impact does paternity have on parental rights?
Paternity is the relationship between the biological father and the child. It is possible that the biological parent is not the paternal parent. For example if mother had 100% of the time with the children and is married or lives with someone who is not the biological father, and the biological father has not contacted the children, then the children living with mother may be considered the psychological parent.
The idea behind a psychological parent is that the child has bonded with this psychological parent but not bonded with the biological father. The court feels in these situations that the psychological parent has rights with the children because they’re in the best interest of the children. Establishing paternity gives the biological parent rights to the child.
Married couples are presumed to be the biological parents of the children. In order to establish paternity one must provide the court with genetic testing for the alleged father and child. Generally genetic testing is very obvious. If you’re not the father it’ll be very low percentages. If you are the father it’s going to come back in the 90% range. So there’s not a lot of room for error in those.
If one spouse adopts the other spouse’s biological child while they’re married, does the adoptive parent have the same parental rights as the birth parent during and after divorce?
Yes, the effect of adoption is that the adoptive parent is a biological parent. For example if a stepfather adopts his wife’s child, the stepfather legally becomes the biological child with all rights and responsibilities for the child. The former biological father’s rights are terminated regarding the child.
If a non-biological parent adopts his or her spouse’s child during the marriage, they can obtain primary even sole custody during a divorce. A court will consider the adoptive parent the biological parent and will evaluate the adoptive parent’s request for custody and decision making with the parent being divorced, the one’s who’s for example biological mother had the stepfather adopt the child. Biological mother and stepfather are now getting divorced. Biological father wants custody and decision making, he would be considered the same as biological mother. The court in making this decisions evaluates the best interest of the child when deciding to grant custody, whether or not it is biological or adoptive parent.
Can a parent give up their rights and responsibilities for their child?
In order to give up rights you must first have them. Paternity is how you establish you have rights to the child. The other one is how we discussed about the psychological parent. It’s possible as we previously discussed the biological parent is not the paternal parent. So, establishing paternity gives the biological parent rights to the child. Married couples who are presumed to be the biological parents already have rights to the child.
Once you have established you have rights to the child, there’s two ways parents can relinquish responsibilities. First if the court decides the parent is unfit to be a parent and then terminates that parent’s rights, this step usually happens before the child comes legally available for adoption or is put in foster care.
Second the parent can consent to the termination of his or her rights but there must be another adult ready and willing to take his or her place, like a step-parent. In the second scenario, the psychological parent, by adopting the child would assume the rights of the former biological parent.
The court requires the person to take the place of the biological parent before the biological parent can terminate their rights for policy reasons. Imagine all of those parents who just don’t want to pay child support attempting to terminate their rights without anyone taking their place? The children would be on welfare. So, there’s always two parents responsible for a child. In order for one to voluntarily terminate his or her rights, there has to be another potential parent ready to step in or adopt a child.
We often hear about the best interest of the child. What is the criteria for assessing best interest?
In Colorado courts assess best interest of the child by applying the following factors, the wishes of the child of the parents as to parenting time, and the wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule. Additionally, considered is the interaction and interrelationship of the child with his or her parents or his or her siblings and any other person who may significantly affect the child’s best interest, the child’s adjustment to his home, his school, his community, and the mental and physical health of all individuals involved.
But disability alone is not a basis to deny or restrict parenting time in this factor. The ability of the parent to encourage the sharing of love, affection and contact between the child and the other parent and there’s an exception to this one, if there’s domestic violence or neglect, that’s considered in whether or not the parents are encouraging the child to have a loving relationship with the other parent.
Whether there’s a past pattern of involvement of the parties with the child reflects a system of values, time commitment and mutual support. The physical proximity of the two parties to each other as it relates to practical considerations of parenting time. And finally the ability of each party to place the needs of the child ahead of his or her own needs.
If there’s a lot of conflict between the parents, can they still share equal parenting rights and responsibilities?
If there’s a lot of conflict between the parents, they can still share parenting rights and responsibilities. Unfortunately many parents are high conflict. This means that the children are often used as a weapon against the other parent. Many parents feel that they’re helping their case by turning the child to their side and they’re wrong. A parent who puts the child in the middle of the conflict is asking way too much of the child. A custody battle is hard enough for adults who are fully mentally developed and should be able to process conflict. A child is not fully mentally developed and often does not understand and cannot process the conflict.
Children will have behavioural regressions and mental breakdowns. These are signs that the child is struggling to process the conflict. These children need immediate help. The best gift a parent can give his or her child in the midst of custody battle is the ability to just be a kid and not worry about the parent argument.
If one parent has primary parenting rights, does the other automatically get visitation or some parenting time with their children?
If one parent has primary parenting rights, the other parent does not automatically get visitation, although they usually well. The child has a right to have a relationship with both parents just like parents have a right to have a relationship with the child. Generally if a parent has the majority of time with the child, the other parent will have specific parenting time like every other weekend or holidays in the summer. If the court has found the parent to be unfit then he or she will not likely have visitation. If the unfit parent does have visitation it will likely be supervised visitation only.
If the parent with primary parenting rights is preventing the other from exercising visitation with his or her children, can the second parent stop paying child support?
If the parent with primary parenting rights is preventing the other from exercising visitation with his or her children, that’s parental alienation. And that’s one of the reasons why a parent might seek to change custody. The second parent cannot stop paying child support. The issues of parenting time and child support cannot be used as a sort of extortion against the other. A parent is entitled to court ordered parenting time independent of his or her payment status. Likewise, a parent will owe child support ordered by the court, whether or not he or she has actually exercised parenting time.
What if the parent is genuinely concerned about having his or her ex spend time alone with the children perhaps because of a history of abuse, drug addiction or alcoholism? What can the concerned parent legally do to protect his or her children against the other parent?
If the parent legitimately believes the children are in imminent danger with the other parent, then he or she can file an emergency motion with the court asking the court to restrict parenting time. These motions are for emergencies, literal emergencies, for imminent danger and not for a parent who cries wolf regarding danger to the children.
In these types of motions, the rules of evidence can really hurt the parties. For example if the only way the concerned parent knows of the alleged danger is from the child, it is really difficult to get any of that information in so the court can see it. Hearsay is an out of court statement offered for its truth. Statements made by a child out of court, which are being offered to the court to prove what the child said was true is child hearsay. Although there are some exceptions, child hearsay is inadmissible in court. For this reason it is really important to have hard evidence to show the court in these type of motions.
Grandparents can be so important in their grandchildren’s lives. I’d like to ask a couple of questions about grandparents and divorce. First, can primary parenting rights be awarded to grandparents temporarily or permanently if both parents are deemed unfit?
So, yes primary rights can be awarded to grandparents temporarily or permanently and they do not have to show that a parent is deemed unfit in order to do so. There’s a U.S Supreme Court case, Troxel versus Granville, it’s extremely famous. It discusses the presumption in favour of a parent over a grandparent or third party.
A grandparent must first have standing to bring his or her claim to parenting time or visitation against the parents. Once the grandparent or non-parent has standing and request parental responsibilities, the court considers a presumption in favour of the biological parent in her determination of how the child should be raised. Before a court can allocate parental rights and responsibilities to the non-parent over the parent’s objections special factors have to justify the court’s interference with that parent’s fundamental right to parent their child.
Second, in order to rebut the presumption in favour of the parent, the non-parent has to show by clear and convincing evidence that the parental determination of the biological parent is not in the child’s best interest. Finally the non-parent has to show by clear and convincing evidence that their requesting parenting time allocation is in the child’s best interest. The non-parents do not have to show that a parent is unfit. But the non-parents do need to show by heightened standards that the parent’s determinations are not in the child’s best interest, and the non-parents offering parenting plan is in the child’s best interest. In applying this test the court will use the best interest standard.
Under what conditions will a judge grant a visitation with or even custody of a child or a grandchild?
Any non-parent who meets the standing requirements listed above can bring claim for parental responsibility. A grandparent is considered a non-parent. The Supreme Court case Troxel, that we just discussed, talked about the presumption in favour of a parent over a grandparent.
In Colorado the statute has been expanded so long as the party has met the standing requirements, that they can file for custody. A grandparent must first have standing to bring his or her claim for parenting time or visitation against the parent. Once a non-parent has standing and requests parental responsibilities, the court will consider the presumption in favour of the biological parent in her determination of how the child should be raised. Before a court can give parental responsibilities to a non-parent over the parent’s objections, the court has to consider all of those special factors previously discussed.
In Colorado in order to obtain standing, a non-parent must file a petition seeking allocation of parental responsibilities for the child in the county where the child is permanently residing or where the child is found. But only if the child is not in care of the child’s parents or the non-parent must have physical custody and care of the child for a period of 182 days or more, if that action is commenced within 182 days after the termination of their physical care.