In Re BJ
242 P.3d 1128
| Colo. | 2010Background
- Julian, the children B.J. and K.J.'s biological father and sole custodian, had allowed substantial contact with the Glabs during a D & N case.
- By 2009 Julian ceased contact with the Glabs, who then petitioned for an APR under §14-10-123(1)(c).
- A magistrate found the Glabs had become the children's psychological parents during Julian's prior custody period, and the children had developed bonds with the Glabs.
- The magistrate ruled the Glabs lacked standing under §14-10-123(1)(c) because the children were in Julian's care for more than six months, while the district court later held the Glabs had standing, allowing review and temporary parenting time.
- The district court appointed a CFI, Dr. Wilbourn, who recommended two Saturday overnight visits after three Saturdays, but Julian objected to any non-parent parenting time without clear and convincing evidence.
- The district court ordered daytime and overnight visits despite not applying the Troxel/C.A. standards or making explicit findings of fact on special factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Troxel/C.A. standards apply at all APR stages | Glabs: standards apply throughout APR, including investigatory stage. | Julian: traditional due process protections apply, but the court can defer some scrutiny until later stages. | Yes; Troxel/C.A. standards apply at all stages of APR. |
| Whether the district court properly applied the three-part Troxel/C.A. framework with findings | Glabs: presumption in favor of parental determination; need clear and convincing rebuttal and findings. | Julian: court may consider non-parent time with appropriate evidence; findings unnecessary if short-term. | District court abused by not applying the standards or making required findings. |
| Whether the CFI recommendations could justify visitation without proper standards | Glabs: CFI recommendations supported visitation. | Julian: any non-parent visitation requires stringent due process controls and explicit special-factor findings. | Court must apply Troxel/C.A. standards and require explicit findings before ordering visitation. |
Key Cases Cited
- Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (parental rights receive due-process protection with 'special weight' given to parental determinations)
- In re Adoption of C.A., 137 P.3d 318 (Colo. 2006) (provides Troxel-based framework for non-parent visitation in APR)
- In re Parental Responsibilities of Reese, 227 P.3d 900 (Colo. App. 2010) (Troxel/C.A. standards apply to non-parent APR requests)
- Wilson v. Mitchell, 48 Colo. 454, 111 P. 21 (Colo. 1910) (best interests standard incorporated into custody determinations)
- In re Custody of C.C.R.S., 892 P.2d 246 (Colo. 1995) (presumption of parental custody; rebuttable by best interests evidence)
- In re Marriage of Fickling, 100 P.3d 571 (Colo. App. 2004) (temporary orders and best interests framework in APR context)
- In re Marriage of McNamara, 962 P.2d 330 (Colo. App. 1998) (CFI role and court's independent weighing of evidence)