The Intersection of Guardianship and Allocation of Parental Responsibilities Actions

Introduction

You are meeting with a potential client who informs you that he cares for a child. While he is not biologically related to the child, Potential Client would like to seek “legal rights” over the child so that he can make decisions on the child’s behalf like those that a parent of the child would be able to make. You will want to ask several questions regarding this relationship between Potential Client and the minor child. The first and most important question is whether he has standing to seek legal rights concerning this child. It is essential to know that there is more than one avenue that this individual might be able to take to pursue the rights that he seeks, and you should be able to help him determine which of these options is best suited for the overall needs of the situation.

Troxel v. Granville creates a strong presumption that parents act in their children’s best interest, and the legal system must protect parents’ fundamental interest in the care, custody, and control of their children created by Amendment 14 of the U.S. Constitution must be protected.[i] Still, caretakers who are not biological or adoptive parents of a child can gain certain parental rights under several different circumstances. The first scenario might be where the parents have abused or neglected their child, such that a dependency and neglect proceeding begins under Title 19 of the Children’s Code. It is important to note that only the state can initiate this type of proceeding, so this would not be an option for Potential Client.[ii] Parents of a child may also designate an individual to act as the child’s guardian in their Will or other such signed writing under C.R.S. § 15-14-202. This scenario doesn’t apply to Potential Client’s situation, where the child’s parents are still alive and there is no written designation.

In the Potential Client’s case, he has not adopted the child or obtained written consent from the child’s parents, allowing him to care for the child. There have been no legal proceedings involving this child or the child’s parents, such that the child’s parents have not been determined “unfit” by a Court and their parental rights have not been terminated, Potential Client may be able to file a petition seeking the allocation of parental responsibilities(“A.P.R.”) through a domestic relations case under Title 14. He may also be able to file a petition asking the Court to appoint him as the child’s guardian through a probate case under Title 15. In determining which type of petition would be most appropriate, you should first examine whether Potential Client has standing to file in each scenario.

Legal Analysis

C.R.S. § 14-10-123(1)(b) states that a non-parent can file a petition seeking the allocation of parental responsibilities “in the county where the child is permanently resident or where the child is found, but only if the child is not in the physical care of one of the child’s parents.” C.R.S. § 14-10-123(1)(c) provides that a non-parent has standing to initiate an A.P.R. proceeding, even if they are no longer caring for the child at the time of filing, so long as the non-parent had physical care of the child for a period of 182 days (about six months) or more and provided that such action initiates within 182 days after the termination of such physical care.[iii] Accordingly, if a non-parent exercises physical custody of a child for at least 182 consecutive days under the statute, with or without the consent of the child’s parents, and subsequently loses physical care over the child, the non-parent continues to have the ability to file an A.P.R. petition for 182 days following the loss of physical care.[iv] 

Accordingly, standing to file an A.P.R. petition under Title 14 primarily looks at whether the non-parent petitioner cares for a child when filing or has cared for the child similarly to that of a parent within the six months before filing. Title 14 focuses on the relationship between child and caretaker, and perhaps most notably, it does not require showing of parental unfitness to find that the moving party has acted as a child’s psychological parent.[v] Instead, the domestic relations Court focuses on the nature of the non-parent’s relationship with the child. The key inquiry is whether the non-parent has assumed a parental role in the child’s life over a meaningful period, such that the child is likely to view that caretaker as their parent.[vi] The idea behind this requirement is that children can form deep emotional bonds with caretakers even without a formal parental relationship if the caretaker regularly provides the child with care and support.[vii]

In comparison, Title 15 has less stringent standing requirements. Under C.R.S. § 15-14-204(1), anyone interested in the minor’s welfare can file a petition for guardianship, regardless of whether they have cared for the child over any significant period. There is also the possibility that the individual who files the petition is not the person seeking appointment as guardian. Under C.R.S. § 15-14-204(1), a minor or a person interested in a minor’s welfare may petition the Court to appoint a guardian. Upon receiving a petition for guardianship, the Court can appoint a permanent guardian for a minor if the Court finds that (1) such an appointment is in the minor’s best interests and (2) that one of the following is true: (a) the parents consent to the appointment; (b) all parental rights have been terminated; (c) the parents are unwilling or unable to exercise their parental rights; or (d) guardianship was previously granted to a third party who has subsequently died or become incapacitated and who has not made an appointment of an alternate guardian by Will or written instrument.[viii]

In the case of Potential Client, the child’s parents do not consent to his seeking legal rights over this child. However, parental consent is not required under either statute. The child at issue is in Potential Client’s care when he comes to your office so that Potential Client could file an A.P.R. petition under C.R.S. § 14-10-123(1)(b). Potential Client also believes that the child’s parents are “unwilling and unable” to exercise their parental rights.[ix] As Potential Client could initiate an action about this child under either statute, you should next consider the practical implications of pursuing either avenue.

You should advise Potential Client that regardless of filing a probate or domestic relations case, the Court must determine that it is in the child’s best interests before Potential Client can be allocated parental rights as a psychological parent or appointed as guardian over the child.[x] Unless the child’s parents consent to the A.P.R. or the guardian appointment, which seems unlikely in Potential Client’s situation, the Court will likely hold an evidentiary hearing to analyze whether Potential Client’s requests are consistent with the child’s best interests. In either case, the child’s parents will need to be served with a copy of the Petition and be notified and offered an opportunity to participate in this hearing.[xi]

In an A.P.R. proceeding, the non-parent petitioner must prove by clear and convincing evidence that the child’s best interests are served by allocating parental responsibilities to the non-parent.[xii] In a guardianship proceeding, the non-parent seeking an appointment without parental consent must prove by clear and convincing evidence that the parents are unwilling or unable to exercise their parental rights.[xiii] The Court also must identify “special factors” which are present, and which justify the interference with parental rights.[xiv] Accordingly, while the standing requirements are less stringent for filing guardianship petitions and do not require the presence of a parent-like relationship with the child, the elements that the non-parent must establish during a hearing are somewhat heightened. Potential Client should also be aware that the probate Court will likely appoint a Guardian Ad Litem to represent the child’s best interests in the guardianship proceeding, particularly when minor has attained the age of 12, in which case their preferences are considered.[xv]

It is also important to consider what Potential Client’s specific goals are regarding his continuing care for this child. It is true that as the child’s guardian, except as otherwise limited by the Court, Potential Client would have the same powers as a parent of the child regarding the child’s support, care, education, health, and welfare.[xvi] That said, a guardian is still distinguishable from a psychological parent in that a guardian is viewed much as a fiduciary and is subject to various ongoing obligations concerning the child following their appointment as are enumerated in C.R.S. § 15-14-207. Guardians must file a background check and a credit report with the Court when seeking an appointment and once appointed, guardians must file an annual report with the Court.[xvii] Conversely, psychological parents who have obtained parental responsibilities are not subject to any annual reporting obligations or expected to update the Court beyond that which would be expected of the child’s natural parent.

Another significant difference between acting as a child’s guardian versus gaining rights as a child’s psychological parent to highlight for your client is the potential financial implications of each role. C.R.S. § 14-10-115 allows the Court to order a child’s parent to pay the other parent a reasonable or necessary amount of child support. While the statute does not define “parent” or refer to psychological parents explicitly, Courts in Colorado have found that non-parents who gain parental responsibilities as part of an A.P.R. proceeding may be ordered to pay child support.[xviii] The rationale seems to be that if someone has stepped into a parental role in a child’s life and seeks parental responsibilities over that child, they are expected to financially support the child in the same manner as a biological or adoptive parent would.[xix]

Conversely, guardians of children are entitled to reimbursement and reasonable compensation for services they complete for the child’s benefit and are not expected to use their personal funds for the child’s support.[xx] In addition, if the child’s parent was receiving funds for the child’s financial support, the child’s guardian can apply for and receive these funds once appointed.[xxi] Accordingly, seeking a guardianship appointment might be beneficial for Potential Client if he is of financial means and could otherwise be ordered to pay child support to the child’s biological parent(s) as a psychological parent.

Conclusion

Potential Client could obtain legal status about the minor child under either statute. As a psychological parent who is awarded parental rights over the child under Title 14, Potential Client would stand in the shoes of the child’s actual parent after first establishing that he has assumed a meaningful role as a parental figure in the child’s life by consistently acting in this manner. Appointment as the child’s guardian would imply more of a caretaker role in that Potential Client has stepped into the child’s life out of necessity for the child’s well-being due to some disruption to the child’s parents.

To summarize, there are some similarities between seeking an appointment as guardian of a child and seeking an allocation of parental rights as a psychological parent. In both cases, the Court will hold a hearing to make findings regarding the child’s best interests. These proceedings differ in that any interested party can petition the probate court to appoint a guardian for a child, even if no significant relationship between child and guardian has been established. However, a disruption between the child and their parents is required before a guardian can be appointed. Conversely, an A.P.R. petition can be successful without having to prove parental unfitness but requires the non-parent to have established a parent-like relationship with the child over a significant period of caring for the child in a parental manner.

Endnotes

[i]. Interest of A.D., 528 P.3d 508, 513 (Colo. App. 2023); Troxel v. Granville, 530 U.S. 57 (2000).

[ii]. Interest of A.D. at 513.

[iii]. In re Interest of K.M.B., 80 P.3d 914, 915 (Colo. App. 2003).

[iv]. C.R.S. § 14-10-123(1)(c

[v]. In re M.W., 292 P.3d 1158, 1162 (Colo. App. 2012).

[vi].  Matter of V.R.P.F., 939 P.2d 512, 514 (Colo. App. 1997).

[vii]. In re B.B.O., 277 P.3d 818, 822 (Colo. 2012).

[viii]. C.R.S. § 15-14-204(2).

[ix]. C.R.S. § 15-14-204(2)(c).

[x]. In re B.J., 242 P.3d 1128, 1133 (Colo. 2010); In re KMB, 80 P.3d 914, 917; C.R.S. § 15-14-204(2); C.R.S. § 14-10-124.  

[xi]. C.R.S. § 15-14-205(1); C.R.S. § 14-10-123(2).  

[xii]. In re B.J., 242 P.3d 1128, 1132 (Colo. 2010); In re Reese, 227 P.3d 900, 901 (Colo. App. 2010).  

[xiii]. Interest of A.D. at 514.  

[xiv]. Id. (citing Troxel v. Granville).  

[xv].  C.R.S. § 15-14-205(3).

[xvi]. C.R.S. § 15-14-208(1).  

[xvii]. C.R.S. §15-14-110; C.R.S. § 15-14-317.  

[xviii]. In re Parental Responsibilities Concerning A.C.H., 440 P.3d 1266, 1267 (Colo. App. 2019).  

[xix]. Id. at 1269.

[xx]. C.R.S. §15-14-209; See also Sidman v. Sidman, 240 P.3d 360, 362 (Colo. App. 2009); In re J.C.T., 176 P.3d 726, 730 (Colo. 2007).

[xxi]. C.R.S. § 15-14-208(2).  

About the Authors

Courtney Baldwin is a member of the Publications Committee for The Docket and an active member of the Denver Bar Association. She is an associate attorney at Polidori, Franklin, Monahan & Beattie, L.L.C. and practices both family law and estate planning.

Elizabeth Zender is a law clerk attending University of Denver Sturm College of Law and will graduate in May 2025.