In re Marriage of DePalma

Colorado Court of Appeals · Family Law

Family LawParenting TimeMilitary DeploymentRight of First RefusalStepparent Careparenting timefit parent presumptionbest interests of the child

Facts

The parties' 2002 parenting plan gave father specified parenting time and provided that if either parent was unavailable during designated parenting time, that parent would offer the other parent a right of first refusal. After father remarried, he was deployed to Iraq, and during that deployment the children spent part of father's scheduled time with stepmother while mother exercised the remainder. Facing another deployment, father asked to keep the parenting schedule in effect during his absence so the children could maintain their normal routine and relationship with stepmother and their stepbrother. The trial court ordered that father could have stepmother care for the children during his parenting time and concluded this did not grant stepmother parenting time or modify parental decision-making authority.

Issue

Whether a fit parent may have a stepparent care for the children during that parent's parenting time while the parent is deployed or otherwise unavailable for extended periods, without impermissibly granting the stepparent parenting rights or violating the other parent's constitutional rights. A related issue was whether the parenting plan's right of first refusal required father to offer that time to mother before stepmother could care for the children.

Rule

When the dispute is between two fit parents rather than between a parent and a nonparent seeking rights, the court may presume both parents act in the children's best interests and resolve the dispute based on those interests. An order permitting a parent to have a stepparent care for children during that parent's parenting time does not grant the stepparent parenting time or parental rights where the stepparent receives no independent legal rights and no decision-making authority. A court may modify parenting time provisions, including a right of first refusal, when doing so serves the children's best interests.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

After a divorce in Colorado Springs, Evan Ortiz and Dana Lowell share joint decision-making, and Evan has alternating weekend parenting time. Evan, a firefighter, is assigned to a three-month wildfire deployment in California and asks the court to let his wife, Marissa, keep the children at Evan's home on his weekends so they can continue their routine with their half-sibling; Dana objects that as the biological mother she has the superior right to all of that time.

How should the court most likely analyze Dana's objection?

Explanation. The majority held that when the controversy is between two fit parents, not between a parent and a nonparent seeking rights, the court presumes both parents act in the children's best interests. A parent's request that a stepparent provide care during that parent's parenting time is not automatically converted into a nonparent custody claim. So the court should evaluate Evan's proposal under the children's best interests rather than treating Dana's biological status as dispositive. (Derived from In re Marriage of DePalma (n.d.).)