264 P.3d 623
Colo. Ct. App.2011Background
- Smith and Lauzon dissolved their marriage in 2006; Lauzon was allocated majority parenting time with E.S.
- In 2008 Lauzon moved to relocate out of state; Smith objected that E.S. should remain in Colorado.
- Silvernail, adoptive parent of two of Smith and Lauzon's other children, sought to intervene, citing substantial time with E.S. and siblings and future relocation concerns.
- After hearings, the court denied relocation and allowed Silvernail to intervene and exercise parenting time with E.S. every other weekend.
- Five months later, E.S. moved into Silvernail's home full time under temporary guardianship granted by Smith and Silvernail; all parties sought primary parental responsibilities.
- The trial court found Silvernail had standing and that it was in E.S.'s best interests for Silvernail to be the primary residential custodian with limited time for Smith and Lauzon; Smith appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Silvernail have standing to seek parental responsibilities? | Smith contends Silvernail lacks standing due to lack of express parent consent. | Silvernail argues she has standing under § 14-10-123(1)(b) because E.S. was not in physical care of either parent and Smith placed her with Silvernail. | Silvernail has standing. |
| Was allocation of parental responsibilities to a nonparent proper without clear and convincing proof and findings of special factors? | Smith argues Troxel protections and parental rights require strong showing and express special factors. | Silvernail contends the trial court need not apply Troxel-specific factors or clear and convincing standard due to temporary guardianship context. | The trial court’s allocation must be supported by clear and convincing evidence with findings of special factors; remanded for such findings. |
Key Cases Cited
- In re Marriage of Rodrick, 176 P.3d 806 (Colo.App.2007) (affirm appellate judgment on alternative reasoning)
- In Interest of K.M.B., 80 P.3d 914 (Colo.App.2003) (defined 'physical care' and standing framework)
- In Interest of L.F., 121 P.3d 267 (Colo.App.2005) (analyzes factors for physical care and standing)
- In Interest of C.R.C., 148 P.3d 458 (Colo.App.2006) (nonparent standing when care voluntarily assumed)
- In re D.I.S., 249 P.3d 775 (Colo.2011) (guardianship context and standard of proof guidance)
- In re Custody of A.D.C., 969 P.2d 708 (Colo.App.1998) (overlaps with nonparent involvement and standing)
- In re Parental Responsibilities of A.D., 240 P.3d 488 (Colo.App.2010) (uses Troxel framework and parent rights weighting)
- Troxel v. Granville, 530 U.S. 57 (2000) (parents have fundamental rights; special weight for parent interests)
- Reese v. Reese, 227 P.3d 900 (Colo.App.2010) (clarifies standards for allocation and special factors)
- B.J. v. State, 242 P.3d 1128 (Colo.2010) (requires clear and convincing standard and express findings)