In re the Parental Responsibilities of A.R.L.

Citations: 318 P.3d 581; 2013 COA 170; 2013 WL 6354606; 2013 Colo. App. LEXIS 1879Docket: Court of Appeals No. 13CA0342

Court: Colorado Court of Appeals; December 4, 2013; Colorado; State Appellate Court

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Under the Colorado Uniform Parentage Act (UPA), a child can have both a biological mother and a presumptive mother, particularly in the context of a same-sex relationship. The trial court initially ruled against Elizabeth Limberis' petition for maternity regarding A.R.L., conceived during her relationship with Sabrina Havens, without addressing whether Limberis could be considered a presumed mother. The court's denial was based on the premise that A.R.L. could not have two mothers. However, the appellate court reversed this decision, asserting that Limberis could indeed be recognized as a presumed mother under the UPA.

Limberis and Havens lived together and attempted to conceive, first through artificial insemination and later through insemination by a friend, Mare Bolt, without Limberis’ knowledge. After A.R.L.'s birth in 2008, Limberis participated in parenting and was recognized by the family. Despite a series of separations, Limberis and Havens co-parented until Havens eventually cut off contact between Limberis and A.R.L.

Limberis previously attempted a second-parent adoption, which was dismissed, and later filed for parental responsibilities after their final separation. Bolt, who had acted solely as a sperm donor, confirmed he had no intent to be involved in A.R.L.’s life. When Limberis petitioned for maternity under the UPA, asserting her role as a presumed parent, Havens moved to dismiss, claiming A.R.L. already had a mother and a father. The trial court dismissed Limberis' petition based on this argument. Limberis sought reconsideration, emphasizing her eligibility under the UPA to establish her status as A.R.L.'s presumptive parent.

The trial court consolidated parental responsibilities proceedings with maternity proceedings and held a hearing, during which it denied Limberis' maternity petition, stating the case did not involve surrogacy or sperm donation and that A.R.L. had two biological parents, thus unwilling to establish a new legal category. The court allocated all parental responsibilities to Havens based on the child and family investigator's testimony and report. Subsequently, Bolt's petition to relinquish his parental rights was granted, leaving A.R.L. with only one legal parent. Limberis appealed the denial of her maternity petition and the allocation of parental responsibilities to Havens.

Limberis argued that the trial court erred legally by not considering the merits of her petition. The appellate review is de novo regarding whether Limberis can bring a maternity petition under the UPA as a second legal mother. The UPA allows any interested party to seek a determination of the mother-child relationship, and Limberis alleged sufficient facts to be recognized as an interested party, which Havens did not contest. Thus, the trial court's basis for denying Limberis' petition due to lack of capacity was incorrect.

The UPA aims to establish and protect parent-child relationships irrespective of marital status and prioritizes the child's best interests. It includes both mother-child and father-child relationships and does not limit definitions of parentage to biological or adoptive ties. The UPA allows for the establishment of parentage based on various factors beyond biology or adoption, such as marriage, written acknowledgment of paternity, consent to be listed on the birth certificate, promises of support, or receiving the child into one's home.

The legal framework governing the establishment of parent-child relationships in Colorado allows for parentage to be established through various forms of proof beyond biological ties or adoption, as indicated in 19-4-104, C.R.S. 2013. A person may be recognized as a presumed parent based on evidence presented, such as the "holding out" provision under 19-4-105(1)(d), which applies equally to both men and women. This provision stipulates that a man is presumed to be the father if he receives a child into his home and openly presents the child as his own. The same principles apply to women seeking to establish presumptive motherhood, as clarified in 19-4-122. 

In the case of S.N.V., the court affirmed that a woman could be recognized as a legal mother without biological ties by demonstrating the receipt of the child into her home and holding the child out as her own. The court's ruling confirmed that presumptive parenthood applies equally to both genders. However, Havens contested the notion of a child having two legal mothers under the Uniform Parentage Act (UPA), claiming that allowing Limberis' maternity petition would result in three legal parents for A.R.L., given that Bolt was considered the biological father. The court rejected this assertion, noting that Bolt's status as a biological father was unverified, as there were no genetic tests confirming his paternity, and thus he could only be considered an alleged father without the statutory presumption of paternity that requires a high probability of parentage established through genetic testing.

Bolt was not entitled to a non-biological presumption of paternity regarding A.R.L. because he did not marry or attempt to marry Havens, is not listed as A.R.L.'s parent on the birth certificate, did not acknowledge paternity in writing, did not offer child support, did not present A.R.L. as his child, and did not adopt her. Even if he were presumed to be A.R.L.'s legal father based on a belief of biological connection, that presumption is rebuttable, and Bolt provided clear evidence to rebut it. There was no evidence supporting the presumption of Bolt as A.R.L.'s legal father, nor was there evidence to counter Limberis’ claim that she took A.R.L. into her home and held her out as her own child.

If both Bolt and Limberis had filed petitions for parentage, it would not create three legal parents, but rather two competing petitions based on different presumptions of parentage. The trial court would determine which presumptive parent prevails based on policy considerations and the child's best interests. Bolt did not claim paternity; instead, he denied it and sought to relinquish his parental rights, with neither Limberis nor Havens contesting this, meaning the court did not face a situation of three competing parentage claims.

The trial court erred in dismissing Limberis' maternity petition under the incorrect assumption that A.R.L. already had two biological parents. Furthermore, the argument that Colorado law does not allow for substituting a second legal mother for a child's legal father is flawed, as it relies on the unsupported premise that Bolt was A.R.L.'s legal father. Limberis did not seek to substitute herself for Bolt, and the court faced at most two competing presumptions.

Contrary to the implicit premise in Havens' arguments that a child cannot have two legal mothers under the Uniform Parentage Act (UPA), the UPA is gender-neutral and allows for two same-sex parents. The language does not limit parentage to one male and one female, indicating that the legislature did not intend to impose such a limitation.

Interpretation of the Uniform Parentage Act (UPA) emphasizes the importance of children having access to the love, care, and support of two parents, regardless of the parents' sexual orientation. The precedent established in *Elisa B. v. Superior Court* and further supported by cases like *Frazier v. Goudschaal* indicates that a child can have two legal parents of the same sex if the non-biological parent demonstrates presumptive parenthood under the UPA. This interpretation aligns with similar rulings in other jurisdictions, affirming that a child born to a same-sex couple can have two legal mothers.

Contrarily, an argument by Havens suggests that the UPA should be interpreted based on gender, allowing a man to seek presumptive father status where a biological mother exists, while denying a woman the same opportunity. This creates potential equal protection issues, as it discriminates based on gender. A gender-neutral approach to the UPA's holding out provision is preferred to avoid constitutional challenges.

Havens further contends that Colorado's constitutional definition of marriage as a union between one man and one woman implies a preference for children to have one mother and one father. However, this provision does not alter the UPA or its parentage laws, which operate independently from marriage laws. The UPA does not mandate that parents be married to establish a parent-child relationship, thus rejecting the notion that the constitutional definition bars the petition for maternity in this case.

Havens' argument against Limberis' status as a presumptive second mother due to A.R.L.'s conception by sexual intercourse is rejected. The holding out provision in the UPA, specified in 19-4-105(1)(d), does not restrict application to children conceived through artificial insemination, as evidenced by legislative intent shown in other sections. Therefore, A.R.L.'s conception method does not prevent Limberis from establishing her presumptive motherhood. The court affirms that a child in a same-sex relationship can have two legal mothers, but whether Limberis meets the statutory criteria is a factual matter for the trial court to resolve. The trial court's denial of Limberis' maternity petition on legal grounds means it did not address her petition's merits, which must be considered on remand. 

Additionally, Limberis presents alternative arguments regarding the trial court's failure to recognize a common law 'de facto parent' theory and the allocation of parental responsibilities, but these will not be addressed since the maternity petition denial was deemed erroneous. The UPA does not restrict parental rights based on sexual orientation, affirming that both biological and presumed mothers can exist in a same-sex relationship context. The trial court's previous order denying Limberis' petition is reversed, and it is instructed to determine her status as A.R.L.'s presumptive mother under the holding out provision. If confirmed, the court must issue orders regarding child support and parental responsibilities, prioritizing A.R.L.'s best interests while maintaining existing parental responsibilities until new orders are established.

Judges Webb and Bernard concurred on the matter concerning A.R.L., whose birth occurred before the enactment of the Colorado Civil Union Act. The Act equates civil union parties' rights regarding children to those of spouses under the Uniform Parentage Act (UPA). The trial court found substantial evidence countering the presumption that Bolt was A.R.L.'s legal parent, noting Bolt's lack of relationship, financial or emotional support, and failure to acknowledge A.R.L. as his child. Havens argued that biological connection should establish conclusive parentage, but the court rejected this, emphasizing that such a view contradicts precedence and could disadvantage a child by denying them a nurturing relationship with a presumed mother. The court referenced the case People in Interest of C.L.S. to illustrate that interpretations of the UPA must prioritize the child's best interests. Additionally, the court dismissed concerns that recognizing Limberis as a presumptive mother would lead to endless parentage claims, clarifying that a presumed parent must demonstrate a significant commitment to the child, which is not easily met by casual acquaintances. The court noted that Colorado has not restricted its holding out provisions, unlike some other states. In denying Limberis' maternity petition, the court resulted in A.R.L. having only one legal parent. The case Michael H. v. Gerald D. was distinguished as it involved a conclusive presumption of legitimacy not applicable in this situation. The opinion does not address the constitutionality of a specific provision of the Colorado Constitution.