Thе PEOPLE of the State of Colorado, In the Interest of S.L.H., Appellee. Upon the Petition of R.E.H., Petitioner-Appellant, v. J.M.H., Respondent-Appellee.
No. 85CA1407
Colorado Court of Appeals, Div. III.
Nov. 20, 1986
Rehearing Denied Jan. 15, 1987
736 P.2d 1226
Certiorari Denied (R.E.H.) May 18, 1987.
Charles P. Miller, P.C., Charles P. Miller, Aurora, for petitioner-appellant.
John L. Springer, Aurora, for respondent-appellee.
BABCOCK, Judge.
Petitioner, R.E.H., appeals the trial court judgment dismissing his action in which he sought a declaration that he was not the father of S.L.H., a minor сhild. We affirm.
Petitioner married the child‘s mother, J.M.H., on April 1, 1972. S.L.H. was born June 16, 1972. The parties’ marriage was dissolved on July 18, 1984. In his petition for dissolution, petitioner admitted that S.L.H. was a child of the marriаge, and
On March 26, 1985, petitioner filed a “Petition for Determination of Parentage” under
Because thе child was born before the UPA was adopted in 1977, the controlling statute of limitations would normally be the statute in effect at the time the cause of action accrued in 1972. Sеe D.Z.M. v. D.A.G., 41 Colo. App. 377, 592 P.2d 1 (1978), aff‘d sub nom., Jefferson County Department of Social Services v. D.A.G., 199 Colo. 315, 607 P.2d 1004 (1980). That statute, 1967 Perm. Supp., C.R.S. 1963, 22-6-1(2), reenacted in
However, the former statute provided that paternity proceedings could be commenced only by the mother, the child‘s guardian, or the county department of public welfare. 1967 Perm. Supp., C.R.S. 1963, 22-6-1(1). Actions by putative fathers were not authorized. See W.R.S. v. E.R., 41 Colo. App. 414, 588 P.2d 379 (1978). Thus, because рetitioner had no cause of action under the former statute, he could not have been barred by its limitation period. See Jefferson County Department of Social Services v. D.A.G., supra. Under this analysis, we conclude that the UPA applies. See W.R.S. v. E.R., supra.
The UPA took effect July 1, 1977. Colo. Sess. Laws 1977, ch. 245, § 4 at 1019. We conclude that, even if passage of the UPA extended the time within which petitioner‘s action could have been brought, such action is nevertheless barred by the UPA‘s five-year statute of limitation.
Section 19-6-107(1)(b), C.R.S. (1986 Repl. Vol. 8B) provides that a man presumed to be the child‘s father under
Petitioner asserts that since he has received the child into his home and openly held the child out as his own, he is a presumed father under
A basic purpose of the UPA is to protect the father-child relationship. R. McG. v. J. W., 200 Colo. 345, 615 P.2d 666 (1980). That purpose finds expression in the strong presumption of paternity accorded to a man married to the child‘s mother at the time of its birth. See
The public policy favoring this presumption is avoidance of otherwise dire consequences to the child involved, as well as protection of the family unit. Lanford v. Lanford, supra; B.G. v. S.G., supra. Another important policy underlying this presumption is the improvement of the system of support enforcement. See 9A Uniform Laws Annot., Matrimony, Family & Health Laws 582 (1979) (Commissioners’ Prefatory Note).
To these ends, the UPA, like its predecessor, sets a limited time within which actions to determine the parent-сhild relationship must be brought. See
Such a time limitation is well within the General Assembly‘s power to enact, see People in Interest of L.B., supra, and furthers the public policy of maintaining stability in the family unit and providing children with a means of support by limiting the time within which challenges to the presumption of fatherhood must be brought. See
On the facts here, thе presumption that petitioner is the natural father because the child was born during the parties’ marriage has the greater weight of policy and logic behind it, and therefore, that presumption controls. Thus, petitioner‘s action to determine nonexistence of paternity fell under
Judgment affirmed.
METZGER, J., concurs.
VAN CISE, J., dissents.
VAN CISE, Judge, dissenting:
I respectfully dissent.
I agree with the majority that the five-year statute of limitations in the 1967 act did nоt bar petitioner from bringing this action. I do not agree that petitioner‘s action is barred by the UPA‘s five-year statute of limitations.
When the 1967 act was in effect, a putative fathеr had no statutory right to commence an action to establish either his paternity or his non-paternity. Only the child‘s mother or guardian or the county department of social sеrvices were so authorized, and that right was limited to a proceeding to establish paternity. R. McG. v. J. W., 200 Colo. 345, 615 P.2d 666 (1980); 1967 Perm. Supp., C.R.S. 1963, 22-6-1(1). See Jefferson County Department of Social Services v. D.A.G., 199 Colo. 315, 607 P.2d 1004 (1980); People in Interest of R.D.S., 183 Colo. 89, 514 P.2d 772 (1973); W.R.S. v. E.R., 41 Colo. App. 414, 588 P.2d 379 (1978).
The UPA,
In view of the above, even though petitioner meets the definition of a presumed father under
Under
Since petitioner is entitled to bring his action at any time, it is not nеcessary to address his contention that the differences between
As to the parties’ other contentions, the guardian correctly admits that, since paternity was not specifically raised or decided in the dissolution of marriage action, the doctrine of collateral estoppel based on judicial admissions is inapplicable. Res judicata also does not apply because the procedures of the UPA were not followed in the dissolution action, and, therefore, any order determining paternity, by implication or otherwise, finding him to be the child‘s father was void. In re Marriage of Burkey, 689 P.2d 726 (Colo. App. 1984).
Accordingly, in view of the admissions by the mother, the guardian, and the petitioner that petitioner is not the natural father of the child, the judgment of the trial court dismissing the petition should be reversed, and the cause should be remanded with directions to grant the petition.