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Colorado Court of Appeals Splits on Payment of Child Support by Non-Parents

In In re Marriage of Flanders, 2022 COA 18, the Colorado Court of Appeals considered payment of child support by a non-parent. The Court determined that a parent allocated parental responsibilities out of a dependency & neglect case is not a “psychological parent” and, thus, cannot not have a child support obligation to a natural parent.


This follows In re the Parental Responsibilities of A.C.H., 2019 COA 43, where the Colorado Court of Appeals determined that a “psychological parent” (a non-parent who acts in a parental capacity and who can be allocated parental responsibilities under domestic relations law) can be ordered to pay child support.


At first read, these cases are in tension with each other. Under the current state of the law, two similarly situated parties could have different legal obligations. For example, a grandparent who agrees to share custody with a natural parent after allegations of abuse or neglect in the juvenile court case may not be ordered to pay child support to the natural parent, but the same grandparent who does so in the context of a domestic relations case (e.g., a divorce or custody case) can be ordered to pay child support.


There are some legal and policy reasons this makes sense. A grandparent in a dependency & neglect case (i.e., a grandparent who agrees to take a child because the state has intervened due to a parent’s unfitness) is differently situated from a grandparent who petitions into a private custody case. In the former situation, there may be less agency on behalf of the non-parent; they may be reluctant to act but ultimately willing to do so to prevent permanent family separation. In the latter, the non-parent has involved him or herself in a private custody case and affirmatively asked for parent-like rights to which attach attendant financial responsibilities.


In addition, policy reasons may support this distinction. In dependency & neglect cases, there is benefit to keeping family involved, and fear of a child support situation may scare off an otherwise willing relative.


It is worth troubling that concept a little bit, however. Dependency & neglect cases often see officious intermeddlers and family members who intervene, pay lawyers, and advocate strongly against parents for all sorts of reasons. Some of these are altruistic and child-focused; others are not. And non-parents often involve themselves in domestic relations cases because they can help the parents raise the children, even when issues have not yet escalated to the point of state intervention.


Judge Tow, in dissent in Flanders, disagreed with the Court’s line-drawing between a “psychological parent” from the A.C.H. case and the situation in Flanders. In short, Judge Tow argued that it is not the “psychological parent” doctrine that should drive the caselaw. Judge Tow appears to believe the difference between the A.C.H. case and the Flanders case is too thin to support the distinction drawn.


Flanders is a published decision with a dissent, and there is now a “division split” with the panel of the Court of Appeals that decided A.C.H. The chance of review by the Colorado Supreme Court is high, here. And even without Supreme Court review, there is a lot of law to be made in the gap, now. Watch this space.