Troxel presumption in Colorado

2026See Troxel, 530 U.S. at 72-73 (a state may not infringe on the parents’ fundamental right to make child-rearing decisions simply because a state judge believes a “better” decision could be made); see also In re Parental Responsibilities Concerning B.J., 242 P.3d 1128 , 1134 (Colo. 2010) (“[S]o long as a parent is fit, there will normally be no reason for the 4 State to second-guess the ability of that parent to make the best decisions concerning the rearing of his or her children.”). ¶ 13 But the application of the Troxel presumption is limited to parental responsibilities disputes between a f

2026See Troxel, 530 U.S. at 72-73 (a state may not infringe on the parents’ fundamental right to make child-rearing decisions simply because a state judge believes a “better” decision could be made); see also In re Parental Responsibilities Concerning B.J., 242 P.3d 1128 , 1134 (Colo. 2010) (“[S]o long as a parent is fit, there will normally be no reason for the 4 State to second-guess the ability of that parent to make the best decisions concerning the rearing of his or her children.”). ¶ 13 But the application of the Troxel presumption is limited to parental responsibilities disputes between a f

2026See Troxel, 530 U.S. at 72-73 (a state may not infringe on the parents’ fundamental right to make child-rearing decisions simply because a state judge believes a “better” decision could be made); see also In re Parental Responsibilities Concerning B.J., 242 P.3d 1128 , 1134 (Colo. 2010) (“[S]o long as a parent is fit, there will normally be no reason for the 4 State to second-guess the ability of that parent to make the best decisions concerning the rearing of his or her children.”). ¶ 13 But the application of the Troxel presumption is limited to parental responsibilities disputes between a f

2026See Troxel, 530 U.S. at 72-73 (a state may not infringe on the parents’ fundamental right to make child-rearing decisions simply because a state judge believes a “better” decision could be made); see also In re Parental Responsibilities Concerning B.J., 242 P.3d 1128 , 1134 (Colo. 2010) (“[S]o long as a parent is fit, there will normally be no reason for the 4 State to second-guess the ability of that parent to make the best decisions concerning the rearing of his or her children.”). ¶ 13 But the application of the Troxel presumption is limited to parental responsibilities disputes between a f

2012Thus, the supreme court was "persuaded ... that the Troxel presumption must prevail over any competing presumption in favor of an established custodial environment, including guardianships." Id. at 784 (emphasis added).

2012Thus, the supreme court was "persuaded ... that the Troxel presumption must prevail over any competing presumption in favor of an established custodial environment, including guardianships." Id. at 784 (emphasis added).

2026O’Connor, ¶ 20; see In re Parental Responsibilities Concerning M.W., 2012 COA 162, ¶ 13 (because “[a] parental responsibilities dispute between a [fit] parent and a nonparent is not a contest between equals,” the court applies Troxel when the parent opposes an allocation of parental responsibilities to a nonparent); see also Troxel, 530 U.S. at 65-73 (holding that a Washington statute compelling grandparent visitation over the objection of the widow mother was unconstitutional without giving a presumption that a fit parent acts in her child’s best interests); B.J., 242 P.3d at 1130 (setting as

2026O’Connor, ¶ 20; see In re Parental Responsibilities Concerning M.W., 2012 COA 162, ¶ 13 (because “[a] parental responsibilities dispute between a [fit] parent and a nonparent is not a contest between equals,” the court applies Troxel when the parent opposes an allocation of parental responsibilities to a nonparent); see also Troxel, 530 U.S. at 65-73 (holding that a Washington statute compelling grandparent visitation over the objection of the widow mother was unconstitutional without giving a presumption that a fit parent acts in her child’s best interests); B.J., 242 P.3d at 1130 (setting as

2011See In re Guardianship of Barros, 701 N.W.2d at 402 .

2011See In re Guardianship of Barros, 701 N.W.2d at 402 .

2025J.G., ¶¶ 21, 27; see also People in Interest of N.G.G., 2020 COA 6, ¶¶ 18-19 . ¶ 10 Applying the Troxel presumption requires the court to accord “at least some special weight to the parent’s own determination regarding the child’s best interests.” J.G., ¶ 21 (quoting Troxel, 530 5 U.S. at 70).

2025J.G., ¶¶ 21, 27; see also People in Interest of N.G.G., 2020 COA 6, ¶¶ 18-19 . ¶ 10 Applying the Troxel presumption requires the court to accord “at least some special weight to the parent’s own determination regarding the child’s best interests.” J.G., ¶ 21 (quoting Troxel, 530 5 U.S. at 70).

2020See B.J., 242 P.3d at 1130; C.A., 137 P.3d at 322 .

2020See B.J., 242 P.3d at 1130; C.A., 137 P.3d at 322 .

2013People in Interest of A.M.D., 648 P.2d 625 , 632 (Colo.1982) (internal quotation marks omitted); N.G., ¶¶ 30-31. ¶ 13 In other words, to overcome a parent's fundamental right and defeat the Troxel presumption, the state must follow certain procedures, unique to the Children's Code, that are based on due process standards.

2013People in Interest of A.M.D., 648 P.2d 625 , 632 (Colo.1982) (internal quotation marks omitted); N.G., ¶¶ 30-31. ¶ 13 In other words, to overcome a parent's fundamental right and defeat the Troxel presumption, the state must follow certain procedures, unique to the Children's Code, that are based on due process standards.

2024See People v. Asberry , 172 P.3d 927, 933 (Colo. App. 2007) (“ There is no reversible error if the jury instructions, read as a whole, adeq uately inform the jury of the law.” ). 1 We need not, and do not , decide whether a juvenile court would abuse its discretion by providing a jury instruction that explains the Troxel presumption in an adjudicatory trial.

2024See People v. Asberry , 172 P.3d 927, 933 (Colo. App. 2007) (“ There is no reversible error if the jury instructions, read as a whole, adeq uately inform the jury of the law.” ). 1 We need not, and do not , decide whether a juvenile court would abuse its discretion by providing a jury instruction that explains the Troxel presumption in an adjudicatory trial.

2015See People in Interest of S.N., 2014 COA 116, ¶ 14 , 338 P.3d 508 ; A.H., 271 P.3d at 1123 .

2015See People in Interest of S.N., 2014 COA 116, ¶ 14 , 338 P.3d 508 ; A.H., 271 P.3d at 1123 .

2004See C.C.R.S., supra (noting that a custodial dispute should be resolved in the least damaging manner to the child).

2004See C.C.R.S., supra (noting that a custodial dispute should be resolved in the least damaging manner to the child).

2004See People in Interest of A.M.K., 68 P.3d 563 (Colo.App.2003)(facial challenge to § 14-10-123(1)(b) and (c), C.R.S.2003, not considered because attorney general not notified as required under § 13-51-115, C.R.S.2003; Vogt, J., concurring specially to emphasize the Troxel presumption of the legal parent's first and prior right to custody may be rebutted by evidence establishing that the child's welfare is better served by granting custody to a nonparent).

2004See People in Interest of A.M.K., 68 P.3d 563 (Colo.App.2003)(facial challenge to § 14-10-123(1)(b) and (c), C.R.S.2003, not considered because attorney general not notified as required under § 13-51-115, C.R.S.2003; Vogt, J., concurring specially to emphasize the Troxel presumption of the legal parent's first and prior right to custody may be rebutted by evidence establishing that the child's welfare is better served by granting custody to a nonparent).

2024I do not read the current order deny ing a modification to the parenting time plan to amount to a del egation. In re Parental Responsibilities of Reese , 227 P.3d 900 , 90 3 (Colo. App. 201 0) , expressly states that the court is not requi red to “explicitly state that it accorded [the parent] the Troxel presumption” provided it applies the appropriate standa rd of proof. 34 ¶ 76 Mother nonetheless argues that Dauwe precluded this type of delegation. ¶ 77 Dauwe concluded that the district court’s order, del egating parenting time decisions to a parenting coordinator, contradicted the provisi

2024I do not read the current order deny ing a modification to the parenting time plan to amount to a del egation. In re Parental Responsibilities of Reese , 227 P.3d 900 , 90 3 (Colo. App. 201 0) , expressly states that the court is not requi red to “explicitly state that it accorded [the parent] the Troxel presumption” provided it applies the appropriate standa rd of proof. 34 ¶ 76 Mother nonetheless argues that Dauwe precluded this type of delegation. ¶ 77 Dauwe concluded that the district court’s order, del egating parenting time decisions to a parenting coordinator, contradicted the provisi

2010Based on (1) "overwhelming evidence showing [the domestic partner] had become a psychological parent"; (2) the trial court's findings consistent with the psychological parent doctrine; and (8) its conclusion that curtailment of the relationship between the psychological parent and the child necessarily results in emotional harm to the child, the division concluded that "for purposes of permanent orders this threatened harm both rebutted the Troxel presumption in favor of [the adoptive parent] and constituted a compelling state interest justifying court modification of her parenting plan." Id.

2010Based on (1) "overwhelming evidence showing [the domestic partner] had become a psychological parent"; (2) the trial court's findings consistent with the psychological parent doctrine; and (8) its conclusion that curtailment of the relationship between the psychological parent and the child necessarily results in emotional harm to the child, the division concluded that "for purposes of permanent orders this threatened harm both rebutted the Troxel presumption in favor of [the adoptive parent] and constituted a compelling state interest justifying court modification of her parenting plan." Id.

2026Constitutionality of Sections 14-10-124 and 14-10-129 ¶ 17 Father also contends that sections 14-10-124 and 14-10-129 are unconstitutional “as drafted.” ¶ 18 “[A] party seeking review of a magistrate’s decision must raise a particular issue in the district court so that the district court may have an opportunity to correct any error that may have been made by the magistrate.” People in Interest of K.L-P., 148 P.3d 402, 403 (Colo. App. 2006).

2026Constitutionality of Sections 14-10-124 and 14-10-129 ¶ 17 Father also contends that sections 14-10-124 and 14-10-129 are unconstitutional “as drafted.” ¶ 18 “[A] party seeking review of a magistrate’s decision must raise a particular issue in the district court so that the district court may have an opportunity to correct any error that may have been made by the magistrate.” People in Interest of K.L-P., 148 P.3d 402, 403 (Colo. App. 2006).

2026O’Connor, ¶ 20; see In re Parental Responsibilities Concerning M.W., 2012 COA 162, ¶ 13 (because “[a] parental responsibilities dispute between a [fit] parent and a nonparent is not a contest between equals,” the court applies Troxel when the parent opposes an allocation of parental responsibilities to a nonparent); see also Troxel, 530 U.S. at 65-73 (holding that a Washington statute compelling grandparent visitation over the objection of the widow mother was unconstitutional without giving a presumption that a fit parent acts in her child’s best interests); B.J., 242 P.3d at 1130 (setting as

2026O’Connor, ¶ 20; see In re Parental Responsibilities Concerning M.W., 2012 COA 162, ¶ 13 (because “[a] parental responsibilities dispute between a [fit] parent and a nonparent is not a contest between equals,” the court applies Troxel when the parent opposes an allocation of parental responsibilities to a nonparent); see also Troxel, 530 U.S. at 65-73 (holding that a Washington statute compelling grandparent visitation over the objection of the widow mother was unconstitutional without giving a presumption that a fit parent acts in her child’s best interests); B.J., 242 P.3d at 1130 (setting as

2026O’Connor, ¶ 20; see In re Parental Responsibilities Concerning M.W., 2012 COA 162, ¶ 13 (because “[a] parental responsibilities dispute between a [fit] parent and a nonparent is not a contest between equals,” the court applies Troxel when the parent opposes an allocation of parental responsibilities to a nonparent); see also Troxel, 530 U.S. at 65-73 (holding that a Washington statute compelling grandparent visitation over the objection of the widow mother was unconstitutional without giving a presumption that a fit parent acts in her child’s best interests); B.J., 242 P.3d at 1130 (setting as

2026O’Connor, ¶ 20; see In re Parental Responsibilities Concerning M.W., 2012 COA 162, ¶ 13 (because “[a] parental responsibilities dispute between a [fit] parent and a nonparent is not a contest between equals,” the court applies Troxel when the parent opposes an allocation of parental responsibilities to a nonparent); see also Troxel, 530 U.S. at 65-73 (holding that a Washington statute compelling grandparent visitation over the objection of the widow mother was unconstitutional without giving a presumption that a fit parent acts in her child’s best interests); B.J., 242 P.3d at 1130 (setting as

2026O’Connor, ¶ 20; see In re Parental Responsibilities Concerning M.W., 2012 COA 162, ¶ 13 (because “[a] parental responsibilities dispute between a [fit] parent and a nonparent is not a contest between equals,” the court applies Troxel when the parent opposes an allocation of parental responsibilities to a nonparent); see also Troxel, 530 U.S. at 65-73 (holding that a Washington statute compelling grandparent visitation over the objection of the widow mother was unconstitutional without giving a presumption that a fit parent acts in her child’s best interests); B.J., 242 P.3d at 1130 (setting as

2026O’Connor, ¶ 20; see In re Parental Responsibilities Concerning M.W., 2012 COA 162, ¶ 13 (because “[a] parental responsibilities dispute between a [fit] parent and a nonparent is not a contest between equals,” the court applies Troxel when the parent opposes an allocation of parental responsibilities to a nonparent); see also Troxel, 530 U.S. at 65-73 (holding that a Washington statute compelling grandparent visitation over the objection of the widow mother was unconstitutional without giving a presumption that a fit parent acts in her child’s best interests); B.J., 242 P.3d at 1130 (setting as

2024Id. at ¶ 31. ¶ 16 Here, the district court applied O’Connor and therefore required grandmother to overcome mother’s opposition to visitation by clear and convincing evidence despite father’s general support for visitation. ¶ 17 Grandmother argues that the district court instead should have applied the rule adopted by the Arizona Supreme Court in In re Marriage of Friedman, 418 P.3d 884, 892 (Ariz. 2018), providing that when two fit parents disagree on grandparent visitation, their constitutional presumptions cancel each other out, and the best 6 interests of the child standard controls.

2024Id. at ¶ 31. ¶ 16 Here, the district court applied O’Connor and therefore required grandmother to overcome mother’s opposition to visitation by clear and convincing evidence despite father’s general support for visitation. ¶ 17 Grandmother argues that the district court instead should have applied the rule adopted by the Arizona Supreme Court in In re Marriage of Friedman, 418 P.3d 884, 892 (Ariz. 2018), providing that when two fit parents disagree on grandparent visitation, their constitutional presumptions cancel each other out, and the best 6 interests of the child standard controls.

2024See People in Interest of L.B., 254 P.3d 1203, 1208 (Colo. App. 2011). ¶ 39 We also reject mother’s contention that the juvenile court erred by failing to provide her with the benefit of the Troxel presumption.

2024See People in Interest of L.B., 254 P.3d 1203, 1208 (Colo. App. 2011). ¶ 39 We also reject mother’s contention that the juvenile court erred by failing to provide her with the benefit of the Troxel presumption.

2014II, 110; see A.M., 112; People in Interest of N.G., 2012 COA 131 , 1T 18-21, 808 P.8d 1207; People in Interest of A.M., 786 P.2d 476 , 479 (Colo.App.1989). 1 14 That is because the "[Children's] Code strives to preserve the family while simultaneously ensuring the child's best interest and welfare," K.D. v. People, 139 P.3d 695, 698 (Colo.2008), and, under Troxel v. Granville, 530 U.S. 57, 65, 68 , 120 S.Ct. 2054 , 147 L.Ed.2d 49 (2000), "there is a presumption that fit parents act in the best interests of their children" (the Troxel presumption).

2014II, 110; see A.M., 112; People in Interest of N.G., 2012 COA 131 , 1T 18-21, 808 P.8d 1207; People in Interest of A.M., 786 P.2d 476 , 479 (Colo.App.1989). 1 14 That is because the "[Children's] Code strives to preserve the family while simultaneously ensuring the child's best interest and welfare," K.D. v. People, 139 P.3d 695, 698 (Colo.2008), and, under Troxel v. Granville, 530 U.S. 57, 65, 68 , 120 S.Ct. 2054 , 147 L.Ed.2d 49 (2000), "there is a presumption that fit parents act in the best interests of their children" (the Troxel presumption).

2013See L.L. v. People, 10 P.3d 1271 , 1275-76 (Colo.2000).

2013See L.L. v. People, 10 P.3d 1271 , 1275-76 (Colo.2000).

2012W., 12 P.3d 80 (Utah 2000) (no Trozel presumption when there has been a factual determination that the child has been neglected); Duncan v. Howard, 918 P.2d 888, 892 (Utah Ct.App. 1996) (parent who has never had legal custody nevertheless is entitled to Troxel presumption where he has never lost his right to assert the presumption due to an adjudication of any lack of fitness as a parent). 133 Accordingly, because an adjudicatory order finding a child dependent or neglected is the equivalent of a finding that the child is not adequately being cared for, we conclude that, upon such a finding, t

2012W., 12 P.3d 80 (Utah 2000) (no Trozel presumption when there has been a factual determination that the child has been neglected); Duncan v. Howard, 918 P.2d 888, 892 (Utah Ct.App. 1996) (parent who has never had legal custody nevertheless is entitled to Troxel presumption where he has never lost his right to assert the presumption due to an adjudication of any lack of fitness as a parent). 133 Accordingly, because an adjudicatory order finding a child dependent or neglected is the equivalent of a finding that the child is not adequately being cared for, we conclude that, upon such a finding, t

2012See Davis v. Weinbaum, 843 So.2d 290, 293 (Fla.Dist.Ct.App.2003) (reaffirming principle in custody modification proceedings that custody should be denied to the natural parent only when such an award will, in fact, be detrimental to the welfare of the child); Harris v. Smith, 752 N.E.2d 1283, 1288-89 (Ind.Ct.App.2001)(declining to place concerns about the stability of a child's environment over the parent's presumptive right to custody and holding that the constitutionally based parental preference may not be ignored in a custody modification proceeding); Heltzel v. Heltzel, 248 Mich.App. 1 ,

2012See Davis v. Weinbaum, 843 So.2d 290, 293 (Fla.Dist.Ct.App.2003) (reaffirming principle in custody modification proceedings that custody should be denied to the natural parent only when such an award will, in fact, be detrimental to the welfare of the child); Harris v. Smith, 752 N.E.2d 1283, 1288-89 (Ind.Ct.App.2001)(declining to place concerns about the stability of a child's environment over the parent's presumptive right to custody and holding that the constitutionally based parental preference may not be ignored in a custody modification proceeding); Heltzel v. Heltzel, 248 Mich.App. 1 ,