Parenting is hard. Step-parenting can be even harder. When you married someone who had children from a previous relationship, you took on that extra role just hoping to fit in. Now that the marriage is ending, you can’t imagine moving on without the stepkids you’ve grown to love. Are your hands tied by a legal system that prioritizes biological parents? Or … can a stepparent get custody rights in Colorado?
We’ll address that question and others we’re frequently asked by step-parents in similar situations. Some of our answers might surprise you.
A non-parent can only file for custody of a child if one of the two following conditions is true:
- the child is not currently being cared for by a biological parent,
- the non-parent has taken care of the child for at least six months, and …
the non-parent files for custody within six months of their physical care of the child ending.
By “non-parent,” the statute refers to psychological parents, such as stepparents, grandparents, and other relatives or guardians who may be capable of acting in the child’s best interests. The term “psychological parent” describes “someone other than a biological parent who develops a parent-child relationship with a child through day-to-day interaction, companionship, and caring for the child.”
A stepparent who has acted in loco parentis — “in the place of a parent” — has legal standing. In fact, some stepparents do more of the actual, day-to-day parenting than the biological parents. Here’s a common scenario:
Gail married Roger who travels extensively for work. Eventually, Gail decides the marriage isn’t working. She’s ready to divorce her frequently absent husband, but what about the children? For the past 5 years, Gail has been the only constant in the kids’ lives; she is their stepmother. Gail wonders if she has any legal rights to her stepchildren.
In the above scenario, Gail may petition for custody rights.
It’s important to underscore that just because a stepparent has served in place of a biological parent does not guarantee they will win custody of the children. The circumstances, like those in our scenario, only establish a legal standing to try.
So, what exactly does legal standing mean? Well, it was pretty unclear until June 2022 when a Colorado Supreme Court decision clarified it. Let’s take a closer look:
In re Parental Responsibilities of E.K
A man asked for parental rights to his step-daughter after filing for divorce from the teenage girl’s biological mother. He alleged the mother was addicted to drugs and struggling with mental health issues. The stepfather, meanwhile, had provided care of the step-daughter for eight years, including:
- taking the girl camping, and on family vacations
- helping her with her homework
- attending parent-teacher conferences
- driving her to and from school and extracurricular activities
- providing her day-to-day expenses
- attending to her daily needs as a parent in the home
However, there was never an extended period in those years when the stepfather had exclusive physical care of the girl. The statute is vague on whether regular stepparenting duties in tandem with the biological, custodial parent amount to “taking care of the child.”
Trial Court Denies Standing
A district court judge in Arapahoe County rejected the step-father’s legal standing to petition for custody, saying:
“This court will not find that a stepparent has standing to obtain parental rights merely because he assisted the child’s mother in parenting the child or paid for the child’s expenses with marital funds. Being a supportive stepparent is not sufficient grounds to obtain standing to seek parental rights.” — District Court Judge Cynthia Mares, Feb. 3, 2022
State’s High Court Overturns Lower Ruling
The Supreme Court swiftly and unanimously reversed the lower court’s decision. It ruled that the stepfather satisfied all statutory requirements for legal standing to file for custody (“allocation of parental rights”), even if he was not the girl’s exclusive physical care provider.
“We conclude that … the physical care provided by Stepfather was … more like a coparent with Mother than a temporary caregiver. Stepfather lived in the same house with (stepdaughter), for eight years, aided in her education, was involved in her extracurricular activities, took her on family vacations, and paid for her day- to-day expenses.” — In re Parental Responsibilities of E.K. (Colorado, June 2022)
The high court also took issue with the district court minimizing the role the stepfather had played in the girl’s life for eight years.
“However, likening Stepfather’s role in (stepdaughter’s) physical care to that of a temporary caregiver—like a babysitter—disregards the nature, frequency, and duration of contacts between (stepdaughter) and Stepfather.” — In re Parental Responsibilities of E.K. (Colorado, June 2022)
Clarifying the Statute
The ruling clarifies the subsection of C.R.S. 14-10-123 requiring that “the non-parent has had physical care of the child for at least (six months).” From now on, co-parenting with the primary custodial biological parent counts. The non-parent is not required to have been the sole physical care provider for at least six months.
The state Supreme Court did not go so far as to award the stepfather custodial rights. It remanded that question back to the district court after ruling that the stepfather had standing.
It’s possible — but it sure isn’t easy.
Once a “psychological parent” establishes “legal standing” to petition for parental rights, they must still show that giving them custody would be in the child’s best interests. However, that can be an uphill battle. You’ll be asking the court to override the rights of the biological parent(s). Therefore, even if you have standing, you’ll need a very strong case.
The term “psychological parent” describes “someone other than a biological parent who develops a parent-child relationship with a child through day-to-day interaction, companionship, and caring for the child.”
A 2000 United States Supreme Court decision (Troxel v. Granville, U.S., 2000) requires family courts to give “special weight” to the legal/biological parents’ determination of what’s in their child’ best interests.
“So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” — Troxel v. Granville, 530 U.S. 57, 60, 120 S. Ct. 2054, 2057 (2000)
If you decide to try for custody of your stepchild, you need to know how Colorado’s family courts determine exactly what is “in the best interests of the child.” Factors considered by the court are laid out in Colorado Revised Statute 14-10-124, subsection 1.5. They include:
- the wishes of the parents, or non-parents with legal standing
- the wishes of the child (providing the child is mature enough to express independent preferences and reasoning)
- current existing relationships among family members
- whether the child can adjust to their home, school, and general environment
- the mental and physical health of all family members involved in the child’s life, including the child
- the ability of all parties to encourage a relationship and contact with the other parent (except in cases of abuse or neglect)
- the prior involvement of each parent or party in the life of the child prior to the divorce
- the distance between the homes of each parent
- whether the parents can make joint decisions together
- whether the parents have shown they can make cooperate and put the child’s needs above their own desires
- whether having joint decision-making authority for both parents would be more beneficial for the child
We have an entire legal guide to help you better understand the best interests of the child factors in more detail if you’d like. The article also includes the pros, cons, and costs of a typical child custody case.
Once a stepparent has established legal standing to petition for custody, it will be up to the court to allocate parental rights. However, that only happens if the argument ends up in court. It doesn’t have to.
If you want to continue sharing parental responsibilities after divorce, it would be easier to negotiate an arrangement with your stepchild’s biological parent(s). All parties may prefer an out-of-court agreement to a lengthy, expensive custody fight.
Rights to Visitation
Perhaps you only want visitation with the stepchild you bonded with during your marriage to their biological parent. Courts typically leave it up to the custodial parents to decide who gets to spend unsupervised time with their child. However, courts understand that the parent-child bond comes down to more than just DNA.
Grandparents and former stepparents are in the same boat when it comes to asserting their rights to spend time with a child they love. If it becomes necessary to argue your case in court, here are the key questions and factors:
- How active have you been in the child’s life?
- How important have you been in the child’s life?
- Did you often act in place of the child’s biological mother or father?
- What are the emotional ties between you and your stepchild?
- Was the child financially dependent on you?
- Could the child be adversely affected by your absence?
Joint but Not Equal
Even if you are awarded joint custody as a stepparent, you’ll still have fewer rights than the biological or legal parent. Stepparents typically are allocated rights to parenting time, but not decision-making, unless a court finds that the biological parent is completely unfit. As a stepparent with rights, though, you’ll still be able to access school records, attend school functions, and have periodic visitation with the child.
This arrangement can only be changed if the surviving biological parents sign a consent form allowing the stepparent to share decision-making authority.
A stepparent can gain custody rights to a stepchild in three ways:
- reaching an out-of-court co-parenting agreement with the biological parent during divorce proceedings, and having it approved by a Colorado court;
- establishing legal standing to petition for parental rights; or
- legally adopting the stepchild.
All three processes are more complicated than, say, a handshake deal. However, they are also legally binding and will protect you and the child from future legal challenges.
If your stepchild’s biological parent wants to ensure that you remain in the child’s life no matter what happens, then stepparent adoption is one way to go.
It will require that you submit to background checks by the FBI, the Colorado Bureau of Investigations, and the Colorado Trails Child Abuse and Neglect Check, in addition to obtaining the other biological parent’s written consent.
No. Whether a stepparent is still married to a biological parent or has divorced them, they do not have sole authority to ask the court for emergency custody. Only a custodial or biological parent can do that.
It’s terrible feeling helpless if you have evidence or good reason to believe that a child or children could be endangered by one of their parents. Here are your options as a stepparent:
- convince one of the legal or biological parents to file for emergency custody, or
- report child abuse, neglect, or endangerment to Colorado Child Protective Services
Courts will take any report or accusation of child abuse or endangerment seriously. Therefore, they will punish baseless or frivolous accusations.
Here are some examples a Colorado judge would consider as a reason to grant temporary emergency custody:
- physical abuse
- sexual abuse
- drug or alcohol abuse
- psychotic breaks or mental health concerns
- domestic violence
Other actions can exhibit extreme neglect that might also qualify as endangerment, such as:
- leaving a child unsupervised for long periods of time
- failing to pick up a child from daycare on multiple occasions
If you worry that one of the parents in the current arrangement could one day endanger their child, you can try to get custodial rights. As a stepparent, you can gain custodial rights:
- through a co-parenting plan or an allocation of parental rights proceeding in court, or
- by legally adopting the stepchild.
The court has statutory authority to modify its order allocating parental rights as long as the modification will be in the child’s best interests. — Colo. Rev. Stat. 14-10-129
One parent remarrying does not, by itself, justify changing an existing parenting plan. It could affect spousal support or child support payments. As for it affecting custody, much depends on whether adding a new stepparent significantly tilts the scales in either direction.
Positive impacts of adding a stepparent can be:
- giving the non-custodial parent an opportunity to spend more time with the child
- stabilizing the newly-married parent’s home life
- improving or stabilizing the newly-married parent’s financial situation
- giving the child a two-parent household to live in
There can also be negative effects of adding a stepparent, such as:
- the new spouse distracts the biological parent from their duties
- the stepparent does not like children and interferes with co-parenting
- the biological parent relocates out of the area to be with the stepparent
- the parent and stepparent had a relationship during the parent’s first marriage
Don’t Remarry for Advantage
Don’t rush into a new marriage just to gain a more advantageous custody situation. It’s unfair to the new would-be stepparent spouse, and can be confusing for your child(ren). Such a drastic move could also backfire. A court is capable of distinguishing what’s in the best interest of the child from what’s in the best interest of your custody situation.
Plan Ahead for the Possibility of Remarriage
Many post-divorce parenting plans get decided out-of-court in a collaborative process, like mediation. If that’s a possibility for you, then plan ahead. Your parenting plan could include provisions addressing what happens should either parent remarry.
Note ➤ Do not attempt to do this without a lawyer. It is easy to overlook important details or to use language that isn’t legally airtight.
Yes. The legal term for this is guardianship.
A legal guardian is a non-parent who takes care of a child. The guardian provides food, clothing, shelter, access to education, and medical care, while also setting limits of administering discipline when necessary.
You can recommend a stepparent as the guardian in your Will, however, only the court can appoint a stepparent as the guardian. A challenge could be brought by the surviving legal or biological parent. In that case, the court would have to weigh each side’s wishes while determining what’s in the best interest of the child.
A parent who worries they could pass away or become seriously ill while a child is still a minor can consider appointing a non-parent as a legal guardian. This is an attractive option when there is no other biological or legal parent available to provide adequate care of the child or children.
The guardian can be any non-parent, including a stepparent, although it is most often another member of the extended family, such as a grandparent.
The guardian has all the duties of a parent where it comes to care and support. However, unlike an adoption, a guardian does not need to terminate a child’s legal relationship to one or both parents. A guardian has authority to make all decisions about a child except:
- financial decisions, and
- the right to agree to adoption
… until the guardianship is modified or terminated.
Guardianship is a probate matter, governed by the Colorado Probate Code in Colorado Revised Statute § 15-14-201 to 15-14-210 (2016).
“A person becomes a guardian of a minor by appointment by a parent or guardian by will or written instrument or upon appointment by the court. The guardianship continues until terminated, without regard to the location of the guardian or minor ward.” — C.R.S § 15-14-201.
A child who has been abused or neglected can also be assigned to a guardian by the state, through the Colorado Children’s Code.
A stepfather can get custody of a child as easily as a stepmother can, providing he has legal standing to petition for parental rights.
In Colorado, neither the mother nor father starts any allocation of parental rights proceeding with an advantage over the other.
However, biological/legal parents start with an advantage over non-parents, as their determinations of what’s in their child’s best interests is given “special weight” by the courts. This precedent was established in 2000 by the United States Supreme Court in Troxel v. Granville.
When a custodial parent moves away and leaves the child and stepparent behind, it is called abandonment. This is a serious offense.
Colorado considers a child to have been abandoned if:
- the custodial parent has given up custody for at least six months, making no effort to care for the child or resume any custody arrangement, or
- when the parent of a child is unknown and cannot be identified for three months, even after reasonable attempts to find them.
Any parent, stepparent, grandparent, or other relative can allege child abandonment. They can then use the allegation to file a petition to modify parental rights. Under these circumstances — especially if the custodial parent has left the child with the stepparent for six months — the stepparent would have instant legal standing to file for custody.
However, if another custodial/biological parent is involved in the child’s life, they can also move to terminate the parental rights of the parent who abandoned the child. How this would affect the stepparent’s chances at gaining custody rights depends on a number of factors that would be unique to the case.