Many of today’s couples put off marriage or determine not to make their union legal for a variety of economic and social reasons. Approximately 23.2 percent of Colorado births occur to unmarried mothers. When unwed couples have children and then decide to separate, or when two people conceive a child outside of a committed relationship, questions arise about the way Colorado custody law works for unmarried parents.
While like most states, Colorado acknowledges automatic rights for an unmarried mother, determining parental rights as a father isn’t as simple. A father must first establish paternity in court before claiming any legal rights to the child and a mother must establish a man’s paternity before asking for child support.
Rights of Unmarried Parents In Custody Battles
Colorado courts begin all custody cases with the presumption that continued close contact with both parents is in the child’s best interest, including for unmarried parents. Once a father legally establishes their paternity with the court, either through dual agreement or a paternity test, unmarried parents have the same parental rights as married parents in custody cases, with the child’s best interest as the court’s highest priority. Just as with married parents, unmarried parents enjoy the following parental rights in custody cases:
- The right to shared child custody, including physical custody and decision-making authority over the child
- The right to visitation (parenting time) for a non-primary custodial parent, typically using one of Colorado’s parenting time schedules or a modified schedule agreed upon by both parents. The state’s recommended schedules for shared custody reflect the needs of infants and young children during child custody, and older children or teens. Parents may request modifications of the child custody schedules as a maturing child’s needs change.
Unmarried parents also have the obligation of child support under the state’s formula for child support calculations.
Importance of the Voluntary Acknowledgement of Paternity (VAP)
When unmarried parents agree to paternity, they can submit a Voluntary Acknowledgement of Paternity form or VAP to the Colorado courts. Often unmarried couples sign this form after the birth of a child to add the father’s name to a baby’s birth certificate. In other cases, parents don’t sign a VAP until issues of custody and visitation arise in the case of a separation or with parents who aren’t in a relationship with each other.
It’s critical for an unmarried father to establish paternity if he wishes to enjoy parental rights just as it may be essential for a mother to establish her child’s paternity if she wishes to have financial support from her child’s father. In most cases, a judge will require a paternity test from an unmarried father to confirm paternity even if the father signs a VAP.
This helps to avoid a man becoming legally bound to support a child that isn’t his own. In cases when a man doesn’t know or doesn’t believe that he’s the biological father of a child, he can request a court-ordered paternity test or the child’s mother may demand one in order to settle the question of paternity.
How to Prove and Establish Paternity
When a child is born to married parents, or within 300 days after the parents’ divorce, the husband is the presumptive father under Colorado law, automatically establishing presumed paternity. This is a rebuttable presumption, meaning another person may come forward and take steps to establish their paternity and disprove the presumptive paternity.
Unmarried parents have the option of establishing paternity either through a voluntary acknowledgment of paternity (VAP), a legal agreement in which both parents agree to a father’s paternity without testing. It’s crucial for both adults in these cases to be certain about the child’s paternity before signing a VAP, since overturning an acknowledgment of paternity is a complex court process.
Without presumptive paternity or a VAP, the most common means of proving paternity with the court is through one of the methods described below.
A Mother or Potential Father Files a Court Order for Paternity Testing
The child’s mother can establish the father’s paternity by petitioning the court to require a court-ordered paternity test. If this action proves paternity is likely by more than 97%, then the father establishes their full parental rights and obligations, including the right to shared custody or visitation and the legal obligation to support their child.
A father may petition the court to order paternity testing to establish his paternity if he believes he is a child’s father, whether the child’s mother is unmarried or married to someone else who is the child’s presumptive father.
The Court May Order Paternity Testing
Finally, the court may order paternity testing if any uncertainty or disagreement about a child’s paternity arises during a child custody case for married or unmarried parents. Once a court-ordered paternity test confirms paternity, the state recognizes the established father’s full parental rights.
The Challenges of Rebutting Presumptive Paternity
Under Colorado Citation: Rev. Stat. § 19-4-105(2), the court requires “clear and convincing evidence” to rebut the presumption of parentage, with the burden of proof on the person challenging the presumptive paternity. The court only considers challenges based on allegations of fraud, one parent’s allegation that they signed a VAP under duress, or mistakes of material facts in the case.
During the process of rebutting presumptive paternity, the presumed father retains their parental rights and obligations, including their right to custody and the obligation to support their child up to the point that the court acknowledges the challenger’s paternity.
The court considers many important factors, including the following, when making a determination on whether to revoke presumptive paternity:
- The amount of time that passes between the presumptive parent receiving notice that they might not be the child’s biological parent and the case going to court
- The amount of time the presumptive parent has been parenting the child and the nature of the parent-child relationship
- The circumstances of the presumed parent’s discovery or notification that they might not be the child’s genetic parent
- The child’s age
- Any other factors that impact the child’s well-being due to the disruption of the established parent-child relationship
The Colorado court acknowledges the rights of genetic parents, but also upholds the child’s best interest as its highest priority.
Understanding The Child’s Best Interests Standard When Establishing Primary Custody
Once a child’s paternity is clearly established in court, child custody arrangements follow the same guidelines for unwed parents as they do for divorcing parents. Primary custody and visitation laws in Colorado follow the “Child’s Best Interests Standard.”
This law places the child’s best interests above all else in custody issues, including the parent’s desires. Whenever possible, the best way to arrange primary custody and visitation schedules for the child of unmarried parents is for the parents to agree to a schedule that works well for the child and for themselves. Colorado offers mediation with professionals in order to find workable custody schedules for unmarried or divorcing parents.
If parents can’t agree on primary custody and visitation, the matter falls to a judge to decide in court. Some factors a judge considers include the following:
- The quality of each parent’s relationship with the child
- History of parental interactions with the child
- Each parent’s mental health and physical health status
- Which parent has been the child’s main caregiver since birth
- Child’s background with a community, family support, and school system
- Each parent’s personal finances
- Each parent’s living arrangements
- Any history of domestic violence or addiction
- Children with special physical or emotional needs
- The child’s preferences or needs for children aged 14 and older
Types of Child Custody In Colorado
Unmarried parents have the same custody rights in Colorado as separated and divorced parents once paternity is established through a VAP or by the court. When entering a child custody case in a Denver, Colorado court, it’s essential first to understand the following types of child custody acknowledged by the court:
- Physical custody: This addresses where and with whom the child lives, which may be with one parent or shared between both parents
- Legal custody: This refers to a parent’s right to make important decisions for their child regarding their medical care, education, religion, and extra-curricular activities
- Joint custody: This type of custody requires parents to share a child’s physical custody through a joint parenting-time schedule and to share legal custody of their child by collaborating on important child-rearing decisions
- Sole custody: One parent has full physical and legal custody of the child (typically awarded due to evidence of the other parent’s neglect or abuse of the child, chronic addiction, or criminality)
- Split custody: Each parent gains sole custody of one or more of their children while the other parent gains sole custody of one or more of the children (this was more popular in past decades, and rarely occurs today unless a judge finds it to be in the best interests of both children)
Child custody orders may be temporary or permanent. Temporary orders typically occur during a divorce process to provide an immediate guideline for child custody arrangements, but may also occur during court-ordered paternity testing for unmarried parents. Permanent child custody orders are included in the final court orders after a divorce or after the court has established a father’s paternity.
How Can a Denver Child Custody Attorney Help?
It’s important for unmarried parents to establish their legal rights to a child for matters of custody, visitation, and support. A dedicated family law attorney in Denver can help parents navigate the legalities of proving paternity, establishing parental rights, and setting a fair schedule for custody and visitation in Colorado.