CO Code § 19-4-107 (2021)
2021 Colorado Code|Title 19 - Children's Code|Article 4 - Uniform Parentage Act|§ 19-4-107. Determination of Father and Child Relationship - Who May Bring Action - When Action May Be Brought

  A child, his or her natural mother, or a man presumed to be his or her father pursuant to section 19-4-105 (1)(a), (1)(b), or (1)(c) or the state, the state department of human services, or a county department of human or social services, pursuant to article 13 or 13.5 of title 26 or article 5 of title 14 may bring an action:   At any time for the purpose of declaring the existence of the father and child relationship presumed under section 19-4-105 (1)(a), (1)(b), or (1)(c); or    For the purpose of declaring the nonexistence of the father and child relationship presumed under section 19-4-105 (1)(a), (1)(b), or (1)(c) only if the action is brought within a reasonable time after obtaining knowledge of relevant facts but in no event later than five years after the child's birth. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party.       Any interested party, including the state, the state department of human services, or a county department of human or social services, pursuant to article 13 or 13.5 of title 26 or article 5 of title 14 may bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed pursuant to section 19-4-105 (1)(d), (1)(e), or (1)(f).    An action to determine the existence of the father and child relationship with respect to a child who has no presumed father pursuant to section 19-4-105 may be brought by the state, the state department of human services, a county department of human or social services, the child, the mother or personal representative of the child, the personal representative or a parent of the mother if the mother has died, a man alleged or alleging himself to be the father, or the personal representative or a parent of the alleged father if the alleged father has died or is a minor.    Regardless of its terms, an agreement, other than an agreement approved by the court in accordance with section 19-4-114 (2), between an alleged or presumed father and the mother or child does not bar an action under this section.     History. Source: L. 87: Entire title R&RE, p. 794, § 1, effective October 1. L. 89: IP(1) and (2) amended, p. 1247, § 4, effective April 1. L. 94: IP(1), (2), and (3) amended, p. 2687, § 209, effective July 1. L. 2018: IP(1), (2), and (3) amended,(SB 18-092), ch. 38, p. 424, § 64, effective August 8.    Editor's note:   This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar to those contained in 19-6-107 as said section existed in 1986, the year prior to the repeal and reenactment of this title.   Cross references:   For the legislative declaration in SB 18-092, see section 1 of chapter 38, Session Laws of Colorado 2018.   ANNOTATION   Law reviews. For article, “A Lawyer's Advice to the Unmarried Mother”, see 31 Dicta 112 (1954). For article, “One Year Review of Domestic Relations”, see 41 Den. L. Ctr. J. 97 (1964). For comment, “Bastardizing the Legitimate Child: The Colorado Supreme Court Invalidates the Uniform Parentage Act Presumption of Legitimacy in R. McG. v. J.W.”, see 59 Den. L.J. 157 (1981).   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   Purpose of article. The purpose of the paternity article of the Colorado Children's Code is to provide a means to establish accurately the identity of the father of the child so that the responsibility for support of the child can be determined and support ordered. People in Interest of Unborn Child v. Estergard, 169 Colo. 445 , 457 P.2d 698 (1969); People in Interest of L.B., 29 Colo. App. 101, 482 P.2d 1010 (1970), aff'd, 179 Colo. 11 , 498 P.2d 1157 (1972), appeal dismissed mem., 410 U.S. 976, 93 S. Ct. 1497, 36 L. Ed. 2d 173 (1973).   Different limitation periods for support and paternity not violative of equal protection. When a former statute provided that no proceeding to establish paternity or furnish support should be initiated after a child was five years old unless the father had acknowledged paternity in writing or by furnishing support, whereas proceedings to compel fathers of illegitimate children or other legally responsible persons to support a child might be filed any time before the child's eighteenth birthday, there was no violation of the equal protection clause. In re People in Interest of L.B., 179 Colo. 11 , 498 P.2d 1157 (1972), appeal dismissed mem., 410 U.S. 976, 93 S. Ct. 1497, 36 L. Ed. 2d 173 (1973).   Term “child” construed. To construe “child” so as to exclude an unborn child would permit the father of an unborn child to evade his responsibility for support by leaving the state at any time prior to the birth of the child. People in Interest of Unborn Child v. Estergard, 169 Colo. 445 , 457 P.2d 698 (1969).   There was no ambiguity in the wording of articles 6 and 7 of the Colorado Children's Code. It was quite clear that paternity and support issues were to be determined under article 6 and article 7 was to be used only for the determination of support where paternity was not in dispute. It was error for the court to have conducted a paternity proceeding under the petition for support proceedings of article 7. People in Interest of L.B., 29 Colo. App. 101, 482 P.2d 1010 (1970), aff'd, 179 Colo. 11 , 498 P.2d 1157 (1972), appeal dismissed mem., 410 U.S. 976, 93 S. Ct. 1497, 36 L. Ed. 2d 173 (1973); B.G. v. S.G., 199 Colo. 403 , 609 P.2d 121 (1980).   The fact that a proceeding to determine paternity was not brought within the time permitted by former § 19-6-101(2) , does not bar proceeding for support with respect to children born in wedlock. In such a case, the presumed father must be permitted to deny an obligation to support the child by denying paternity, and that issue must be resolved in the support proceeding. B.G. v. S.G., 199 Colo. 403 , 609 P.2d 121 (1980); People in Interest of R.T.L., 756 P.2d 383 (Colo. App. 1987), aff'd, 780 P.2d 508 (Colo. 1989).   This article is the exclusive means of adjudicating contested paternity. People in Interest of A.A.T., 191 Colo. 494 , 554 P.2d 302 (1976).   The issue of paternity may not be adjudicated as an adjunct of support proceedings. In re People in Interest of L.B., 179 Colo. 11 , 498 P.2d 1157 (1972), appeal dismissed mem., 410 U.S. 976, 93 S. Ct. 1497, 36 L. Ed. 2d 173 (1973).   Section 19-6-104 authorizes establishment of paternal relationship between child and its natural father and recognizes the right of putative fathers to bring an action to establish paternity under the applicable provisions of this article. R. McG. v. J.W., 200 Colo. 345 , 615 P.2d 666 (1980).   Right to paternity declaration not conditioned upon marriage to presumed father. Subsection (1)(b) does not condition the natural mother's right to seek a declaration of paternity in a nonspousal father upon the failure of her existing marriage to the presumed father, or the presumed father's desertion or nonsupport; it requires only that the natural mother's action be commenced within five years after the child's birth. R. McG. v. J.W., 200 Colo. 345 , 615 P.2d 666 (1980).   Paternity determination precedes support obligation. Before a duty to support can be imposed, it must first be established that the person upon whom the support obligation is to be imposed is, in truth, the father of the child. In re People in Interest of D.R.B., 30 Colo. App. 603, 498 P.2d 1166 (1972), aff'd, 180 Colo. 439 , 507 P.2d 468 (1973).   Presumption of legitimacy in seeking support. A child born in wedlock who has the benefit of the strong presumption of legitimacy should reasonably be able to rely on that presumption in seeking support absent a judicial action by the presumed father, challenging paternity. B.G. v. S.G., 199 Colo. 403 , 609 P.2d 121 (1980).   A showing of the child's neglect or dependency is not a condition precedent to a determination of paternity. People in Interest of A.A.T., 191 Colo. 494 , 554 P.2d 302 (1976).   People had standing to bring action. Evidence showing that mother was receiving assistance from county department of public welfare for benefit of child was sufficient to allow the people to have standing to bring action to establish paternity. People in Interest of A.A.T., 191 Colo. 494 , 554 P.2d 302 (1976).   A man claiming to be a child's biological father may commence an action under the Uniform Parentage Act without first having obtained genetic testing. In re S.R.H., 981 P.2d 199 (Colo. App. 1998), rev'd on other grounds sub nom. N.A.H. v. S.L.S., 9 P.3d 354 (Colo. 2000).   No provision for father not married to married natural mother to establish paternity. This article makes no provision for a male claiming to be the natural father of a child to bring an action to establish his paternity under circumstances where claimant was not married to the natural mother and the child was born to the natural mother during her marriage to another. R. McG. v. J.W., 200 Colo. 345 , 615 P.2d 666 (1980).   And denial of standing unconstitutional. The juvenile court's construction of this article denying a claiming natural father not married to the natural mother statutory capacity or standing to commence a paternity action in connection with a child born to the natural mother during her marriage to another in order to establish that he was the natural father of the child violated equal protection of the laws under the fourteenth amendment to the United States constitution, § 25 of art. II, Colo. Const., and the equal rights amendment to the Colorado constitution, § 29 of art. II, Colo. Const.R. McG. v. J.W., 200 Colo. 345 , 615 P.2d 666 (1980).   For case holding that under former law child was not party to paternity action, see People in Interest of R.D.S., 183 Colo. 89 , 514 P.2d 772 (1973).   Burden of proof. Party bringing paternity action has burden of proving by a preponderance of the evidence that defendant is the child's father. Because sterility is a defense in the nature of evidence, the burden rests upon the proponent to establish it by a preponderance of the evidence. C.K.A. v. M.S., 695 P.2d 785 (Colo. App. 1984), cert. denied, 705 P.2d 1391 (Colo. 1985).   As to time limitation under former statute, see Martinez v. Lopez, 153 Colo. 425 , 386 P.2d 595 (1963); Rios v. People in Interest of Martinez, 154 Colo. 88 , 388 P.2d 402 (1964); In re People in Interest of L.B., 179 Colo. 11 , 498 P.2d 1157 (1972), appeal dismissed mem., 410 U.S. 976, 93 S. Ct. 1497, 36 L. Ed. 2d 173 (1973).   Where a paternity suit has not been maintained by or on behalf of the child as required by this section and § 19-6-110 , the trial court's dismissal of the action as barred by the former statute of limitations, which was in effect at the time of the child's birth, is proper. Jefferson County Dept. of Soc. Servs. v. D.A.G., 199 Colo. 315 , 607 P.2d 1004 (1980).   Limitation periods. Since plaintiff was presumed to be the natural father under § 19-6-105 (1)(d) , he is an interested party and may bring suit pursuant to subsection (2) at any time for the purpose of determining the existence of the father and child relationship and is not limited by the five-year period in subsection (1)(b). D.S.P. v. R.L.K., 677 P.2d 959 (Colo. App. 1983).   Limitation of former statute not applicable to support proceeding. Although a paternity proceeding was barred because not brought in time, an action could still be maintained under another statute for failure to support the illegitimate child. Wamsley v. People, 64 Colo. 521 , 173 P. 425 (1918); Dikeou v. People, 95 Colo. 537 , 38 P.2d 772 (1934).   Statute requires commencement of paternity proceedings within five years of birth of child despite mother's acknowledgment that ex-husband was not father of child born during marriage. People in Interest of S.L.H., 736 P.2d 1226 (Colo. App. 1986).   This section does not require that one man's presumed paternity by marriage be negated before an action to assert a parent and child legal relationship by another man, based upon a different presumption, may be commenced. People ex rel. Orange County v. M.A.S., 962 P.2d 339 (Colo. App. 1998).   The statute does not limit the time within which a presumed father may assert as a defense the nonexistence of the father and child relationship. Consequently, this case falls squarely within the general rule that a statute of limitations although barring the use of a claim for affirmative relief after the limitations period has run, is not a bar to asserting that claim as a defense. People in Interest of R.T.L., 780 P.2d 508 (Colo. 1989); People in Interest of L.J., 835 P.2d 1265 (Colo. App. 1992).   Although subsection (1)(a) states that an action for the purpose of declaring the existence of the father and child relationship presumed under § 19-4-105 (1)(a) , (1)(b), or (1)(c) may be brought at any time, § 19-4-108 makes it clear that such an action initiated by the mother or father of a child or the “delegate child support enforcement agency” must be brought before the child's eighteenth birthday. If a child whose paternity has not been established initiates an action to declare the existence of the father and child relationship, the action may be brought at any time prior to the child's twenty-first birthday. People in Interest of R.T.L., 780 P.2d 508 (Colo. 1989).   The statute of limitations under § 19-4-108 governs actions brought under subsection (2) of this section. Although an action under subsection (2) can be brought “at any time”, § 19-4-108 requires that the action be brought prior to the child's eighteenth birthday. In re Parental Responsibilities of I.M., 2013 COA 107 , 410 P.3d 488.   It is clear from § 19-4-105 (1)(a) and subsection (1)(b) of this section that a man presumed to be a child's father by reason of his marriage to the child's mother at the time of conception is precluded from initiating an action to declare the nonexistence of the presumed father and child relationship after the child reaches the age of five. People in Interest of R.T.L., 780 P.2d 508 (Colo. 1989).   Because of the public policy favoring legitimacy, the court did not abuse its discretion in continuing the parent and child relationship between a child and husband of child's mother as being in the best interest of the child in spite of genetic testing establishing a competing presumption in favor of another man. W.C. in Interest of A.M.K., 907 P.2d 719 (Colo. App. 1995).   An interpretation of subsection (1)(b) of this section that would deny the right of a presumptive father to defend against a child support action by asserting the nonexistence of a father and child relationship runs counter to principles of statutory construction and would produce results not consistent with the welfare of the affected children and the best interests of society. In a child support action under article 6 of this title, the defense of nonpaternity may be asserted by a man presumed to be the father pursuant to § 19-4-105 (1)(a) notwithstanding that the man would have been precluded by subsection (1)(b) from bringing an action under this article to declare the nonexistence of the father and child relationship because of the passage of time. People in Interest of R.T.L., 780 P.2d 508 (Colo. 1989); People in Interest of L.J., 835 P.2d 1265 (Colo. App. 1992).   This section does not allow an ex-husband to avoid five-year limitation on commencement of paternity proceedings as “an interested party”. People in Interest of S.L.H., 736 P.2d 1226 (Colo. App. 1986).   Failure to name another man as possible father of child in petition filed pursuant to this section does not constitute grounds for dismissal. G.K.D. v. R.A.D., 759 P.2d 851 (Colo. App. 1988).   When a paternity issue is raised in conjunction with a determination of child support under the Uniform Dissolution of Marriage Act (UDMA), the court must determine whether the party to be charged owes a duty of support according to the procedures of the U.P.A. In re De La Cruz, 791 P.2d 1254 (Colo. App. 1990).   Mother not precluded from bringing a paternity action under this section after conclusion of an action under the UDMA. Although the issue of paternity had been established in the UDMA action, the issue of whether the mother was entitled to birth-related costs was unresolved and could not have been resolved in prior action. In re G.E.R., 264 P.3d 637 (Colo. App. 2011).   Validity of determination of paternity. A trial court's determination of paternity in a dissolution of marriage action is invalid where, although requested to do so, it failed to follow any of the procedures outlined in the uniform act. In re Burkey, 689 P.2d 726 (Colo. App. 1984).   Applied in W.R.S. v. E.R., 41 Colo. App. 414, 588 P.2d 379 (1978); Figueroa v. Juvenile Court, 197 Colo. 510 , 595 P.2d 223 (1979); Petition of G.D., 775 P.2d 90 (Colo. App. 1989); People v. Holleron, 797 P.2d 806 (Colo. App. 1990); M.R.D., by P.D. v. F.M., 805 P.2d 1200 (Colo. App. 1991); In re S.N.V., 284 P.3d 147 (Colo. App. 2011).