With Great Parenting Comes Great Responsibility

Court of Appeals finds ‘psychological parents’ can have obligations to pay child support

Ralph L. Carr Colorado Judicial Center
The Colorado Supreme Court on Sept. 13 concluded that long-term video surveillance of a suspect’s yard constituted a warrantless search under the Fourth Amendment.

Does Colorado’s statute governing child support only apply to natural and adoptive parents? Not according to the Court of Appeals, in an opinion released March 21. Under this new interpretation, courts can also order child support from psychological parents — someone unrelated to a child who has raised them and received parenting rights.

“With the privileges of parenting should go the duties, including financial support,” wrote Judge David Richman in the opinion.

According to the decision, it’s the first in Colorado to expressly find a psychological parent has an obligation to pay child support to a biological parent. Colorado’s child support statute lays out three purposes, and the Court of Appeals looked at two of them: Establishing an adequate standard of support for children and to make awards more fair by aiming for consistent treatment of people in similar circumstances. 

According to the court’s analysis, it’s fair to impose financial obligations on a psychological parent whose circumstances are equivalent to a legal parent, and it also helps establish an adequate standard of support.

The case, re the Parental Responsibilities of A.C.H. and A.F., arose when Justin Hill sought parental responsibilities from his ex-partner, Anastasia Magana, for two children the couple raised together. He had fathered one of the children, and had raised the other, A.F., since he was three months old. The child’s biological father was absent since his birth.

When Hill and Magana split in 2010, they had an agreement for equal parenting time with both children. In 2016, Magana planned to relocate to Texas and asked for an allocation of parental responsibilities related only to the ex-couple’s biological child, A.C.H. Hill filed his own case claiming he was the psychological parent to the other child, A.F., and asked for parental responsibilities for him. 

The district court recognized Hill’s status as a psychological parent, but it ultimately decided the children should reside primarily with Magana in Texas. The court granted substantial parenting time to Hill and awarded joint decision-making responsibility for most major decisions to Hill and Magana. In a separate order, the court decided it could not impose child support payments on Hill. Magana appealed that order.

The Court of Appeals said this instance is distinctive from case law it analyzed because no prior Colorado cases involved a biological parent asking for child support from a psychological parent who had taken substantial legal steps to maintain the same rights as the biological parent, and received a court order to enforce those rights. But in two prior cases where child support was ordered, the court noted, the husband had been granted a continuing relationship with the child.

In two Colorado cases where child support was not ordered, the husband and stepfather had sought to end their relationships with the children. 

The Court of Appeals also looked at cases from Alaska and Pennsylvania that have dealt with child support from psychological fathers, and the cases have looked at whether they sought to legally continue their relationships with the children after they split from their partners.

“We laud [Hill’s] efforts to maintain this bond with the child, but with the privileges of parenting should go the duties, including financial support,” wrote Richman in the opinion. “We cannot embrace a situation in which a psychological parent who fights for and obtains all the same responsibilities of a legal parent does not also assume the responsibility to pay child support.”

Jordan Fox, a member at Sherman & Howard, filed an amicus brief on behalf of the Colorado Chapter of the American Academy of Matrimonial lawyers supporting Hill. The decision doesn’t address one particular nuance related to child support from psychological parents Fox said he finds especially interesting: Whether psychological parents have the right to seek child support from biological parents who are not present.

“You would think if the expansion of the definition of parent includes a psychological father, that he should have that right,” Fox said. He said he could see courts struggling with how to implement such a process, since there isn’t currently one in place. 

Though the opinion didn’t address that issue in the case, it did note a key difference between a psychological parent and an adoptive parent: An adoption absolves biological parents of responsibilities, but the presence of a psychological parent does not. 

Fox said it seems Richman wrote a thoughtfully crafted decision and took care to apply it to the case’s facts, but he added one drawback he sees of including psychological parents in the definition of parents. It seems anyone recognized as a psychological parent could be found responsible for child support, not just ex-partners. That could include relatives such as grandparents or aunts and uncles who assert parental rights in place of a biological parent who isn’t present.

“I don’t know how to limit that decision, and why [under the opinion] it shouldn’t go to that additional class of parents,” Fox said. Complicating things further, he added, under current law a primary caregiver can be required to pay child support to a biological parent who isn’t the primary caregiver, if the primary caregiver has higher income. 

“I think the limitation on who might actually have that financial burden should be as narrow as possible,” Fox said.

The Alaska case the Court of Appeals looked to tangentially addressed another potentially thorny situation. After the child’s biological mother and stepfather divorced, the biological father reappeared and intervened in the custody case.

“The math geek in me tries to figure out how you’re going to put three different parties’ incomes into the child support program,” Fox said.

But he said he believes it’s unlikely the Court of Appeals will themselves set guardrails for who as psychological parents can be ordered to pay child support.

“I think the Court of Appeals might in a subsequent decision say, this is an issue ripe for the legislature to determine.”

— Julia Cardi

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