Child Support & Third Party Non-Parents

Colorado Law on Third Party Support & Parenting

The issue of whether a third party non-parent can be ordered to pay child support involves interpreting two different statutes:

• Parental Responsibilities. C.R.S. 14-10-123 allows non-parents to seek parental responsibilities in situations such as when a child is not living with either parent, has been placed with the petitioner, or the petitioner has had physical care (i.e. custody) of the child for at least 182 days (commonly called a “psychological parent” though that term appears nowhere in the statute).
• Child Support. C.R.S. 14-10-115(2)(a) provides: “the court may order either or both parents owing a duty of support to a child…” The word “parent” is used throughout the statute, but not explicitly defined in the child support statute.

A literal reading of the two statutes suggests that a person may seek parenting time under C.R.S. 14-10-123, but not be required to pay child support under C.R.S. 14-10-115. However, over the years the courts have gradually expanded the definition of “parent” under the child support statute to include situations where non-parents have parental responsibilities.

As discussed in more detail below, Colorado courts have ordered non-parents to pay child support when:

• Contract - The non-parent signed a contract to support a child, then raised the child as his own.
• Intent to Adopt. The non-parent raised the child with the express intent to adopt, although this may also require an award of parenting.
• Psychological Parent - The non-parent has sought and received significant parenting responsibilities under C.R.S. 14-10-123.

Duty to Pay Child Support Imposed by Contract

Back in 1994, the court of appeals held that a spouse who has signed a contract to pay child support can be held to his word. Bonifas. Prior to the birth of a child, the biological parents signed a consent to adoption, and in return, a married couple signed and notarized an agreement under which:

“they will assume full financial responsibility for a child, or children, which will be born to [biological mother] and [biological father] in June or July, 1981. Stephen John Bonifas and Laurine Kay Bonifas agree that from the time of the child's (or children's) birth, they will pay all bills relating to the care of the child (or children), including medical, dental, food, clothing, educational, and any and all other bills.”

For the next 10 years, the couple raised the child as their own without a formal adoption. They then divorced, and the trial court awarded custody to the wife, ordering the husband to pay child support, finding that despite no formal adoption, “if ever there was an adoption de facto, this would be it,” and noting that the husband had agreed to assume full financial responsibility for the child.

The Colorado Court of Appeals held that while the husband owed no duty of support under the child support statute, he had received what he had bargained for - the ability to raise a child. And though he filed to finalize the adoption, the contract imposed on the husband a duty of support.

Though the Bonifas decision is very fact-specific (rarely will a person have signed a contract to pay support, then raise a child for a decade), it did represent the courts starting to chip away at the principle that only a legal parent owes a duty of support.

Psychological Parent Duty to Pay Child Support

In a 2004 paternity case, the Court of Appeals held that the paternity statute allowing a court to order an “appropriate party” to have parenting time and pay support applied to a “psychological parent” awarded parenting time under parenting time under C.R.S. 14-10-123.

In Ohr, at dissolution both the biological father and the husband, who was a presumptive father, sought to be designated as the child’s legal father. The trial court sided with the husband, but awarded the biological father visitation.

The Court of Appeals reversed, finding that under the Uniform Parentage Act, once paternity has been established, pursuant to C.R.S. 19-4-116(3) parenting time and child support could only be ordered for an “appropriate party.” And since that term was not defined, the court held it meant a person such as a psychological parent who was awarded parenting time under C.R.S. 14-10-123.

The Ohr ruling is somewhat limited, both because it involves a statute that only applies to cases brought under the Uniform Parentage Act, and because in that case, support was neither ordered, nor at issue. But again, the Court of Appeals has determined that in the right situation, a non-parent could be ordered to pay support.

In 2007, the Court of Appeals for the first time upheld a child support order against a psychological parent awarded parenting time under C.R.S. 14-10-123. Rodrick.

There, a married couple accepted an offer to raise a friend’s child, and the friend executed a power of attorney for the couple to have full parental authority. The couple subsequently obtained a court order for “joint legal custody/parental responsibility” over the child. Later they signed adoption papers, but separated before commencing a formal adoption.

The Court of Appeals upheld the child support order, finding that a person who seeks an award of permanent parental  award of permanent parental responsibilities under C.R.S. 14-10-123 could be ordered to pay child support.

Support from Psychological Parent to Biological Parent

Psychological Parent Awarded Significant Parenting Time

While Rodrick concerned one psychological parent paying support to another psychological parent, in 2019 the Colorado Court of Appeals held for the first time that a psychological parent can be ordered to pay support to a biological parent. A.C.H.

In A.C.H., a boyfriend had raised his girlfriend’s child since shortly after birth. When the couple separated four years, the mother voluntarily let the man exercise equal parenting time, without a court order for another six years.

When the mother decided to move out-of-state, the man obtained from the court an allocation of parental responsibilities pursuant to C.R.S. 14-10-123, but the trial court denied the mother’s request for child support, finding that only a legal parent owed a duty of support.

The mother appealed, and the Court of Appeals reversed, finding: “When a psychological parent occupies circumstances equivalent to those of a legal parent, it is equitable to impose financial obligations on him or her, pursuant to the factors outlined in the statute.”  ¶ 16

The court reasoned that with parental rights come parental responsibilities:

“with the privileges of parenting should go the duties, including financial support. We cannot embrace a situation in which a psychological parent who fights for and obtains all the same responsibilities of a legal parent does not also assume the responsibility to pay support.”

A.C.H., ¶ 16.

The court did note that its decision was somewhat ground-breaking, in that it was the first time a non-parent had been ordered to pay support to a parent, so took great pains to point out the ruling was limited to situations where the child support payer had sought and obtained court-ordered parental responsibilities:

“We emphasize that our opinion is limited to those psychological parents who have (1) established themselves as ‘parents,’ rather than ‘guardians’; and (2) sought and received an intended-to-be-permanent allocation of parental responsibilities. We are not creating a new class of stepparent obligors, nor are we suggesting that the mere existence of a psychological parent-child relationship, on its own, establishes a support obligation under section 14-10-115.”

A.C.H., ¶ 36.

See our blog post on a psychological parent's duty to pay child support for a complete discussion of the A.C.H. case.

Psychological Parent with Limited and Infrequent Parenting

In a 2021 unpublished decision, the court of appeals noted that the A.C.H. ruling does not apply to all psychological parents who receive court-ordered parenting time, but only those with “significant enough parental responsibilities" to justify a support order. And in Manly, the court held that a stepparent who had one weekend a month and a few holidays, with no decision-making, did not owe a duty of support, as he had "only limited and infrequent parenting time with the child.” ¶ 1.

Guardians have No Legal Duty to Pay Child Support

Not all third parties with legal parental responsibilities have a duty of support. A guardian, appointed pursuant to the probate code, for instance, does not.  C.R.S. 15-14-209(2) provides: “[a] guardian need not use the guardian's personal funds for the ward's expenses.”

In Sidman, a child’s aunt and uncle were appointed as permanent guardians. However, they did not have court-ordered parental responsibilities, nor did they hold themselves out as the child’s parents.

The Court of Appeals found this lack of a legal duty to support the child meant that while the parents were ordered to pay child support to the guardians, the guardians’ income could not be considered when determining support. Similarly, the guardians could not be ordered to fly the child to visit the parents at their expense, because under C.R.S. 14-10-115 only the parents could be ordered to share transportation expenses.

Stepparent in DHS Placement Case Has No Duty to Pay Child Support

In B.S.M., a stepparent received court-ordered custody over his stepchild in a Louisiana divorce, but subsequently moved to Colorado and had no relationship with the child. Mother subsequently moved to Colorado. When the Colorado Department of Human Services initiated a dependency & neglect proceeding against the mother, the stepfather refused to accept placement of the child.

The Court of Appeals held that the placement statute which DHS used to place the child only required “parents” to pay support, not stepparents. C.R.S. 19-1-115. Moreover, C.R.S. 14-10-115 only required "parents" to pay support, not a stepparent. And the out-of-state custody decree was not persuasive, as it was not done as a prelude to an adoption.

No Support from Legal Custodian in Dependency & Neglect Case

In what the court itself recognized was a “case of first impression”, the Court of Appeals considered, and rejected, a request for a non-parent to pay support. In P.D., upon petition by a child’s uncle, the trial court terminated the biological parents’ rights, awarding legal and physical custody to the child’s aunt and uncle. Before the couple could adopt the child, the aunt filed a petition for dissolution of marriage. The uncle then tried to terminate his custody, but the trial court denied that, and ordered the uncle to pay child support in the dissolution proceeding.

The Court of Appeals reversed, holding that “absent a decree of adoption, the petitioner cannot be compelled to support P. D., and the court abused its discretion in denying his petition to terminate his legal custody.” p.837. The court reasoned that the uncle was in a similar situation as a stepparent - he was not a real parent, but merely stood in loco parentis to the child, a status which he may be relieved of at any time. pp. 837-38.

The court of appeals reached a similar result in Flanders, a 2022 decision where a grandparent who was awarded parental responsibilities in a dependency & neglect case was not a "psychological parent", just someone who stepped up to the plate to help out a child in need. Therefore she owed no duty of support to the child. See our blog post for more information about the Flanders ruling.

Parent Must Pay Child Support to Guardian

Finally, while non-parents can be ordered to pay support in only limited circumstances, a child’s parent is required to pay support to whomever the child is living. In Conradson, a 15 year-old child had been living with her aunt for two years, and the court ordered the father to pay child support directly to his daughter.

The Court of Appeals held that the father owed a duty of support to his daughter under the child support statute, without restriction as to whom the support is owing, but did require the payments to go to the aunt, rather than directly to the child. Moreover since the guardians owed no legal duty of support, their financial circumstances were not relevant to determine the amount of support.

Moreover, pursuant to Sidman, only the finances of the parents, not the third parties caring for the child, are relevant for the purposes of determining support.

More Information

For details as to how child support is calculated in Colorado, see the Child Support Basic Obligation article.