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19-4-101 - Short title.
19-4-102 - Parent and child relationship defined.
19-4-103 - Relationship not dependent on marriage.
19-4-104 - How parent and child relationship established.
19-4-105 - Presumption of paternity.
19-4-105.5 - Commencement of proceedings - summons.
19-4-106 - Artificial insemination.
19-4-107 - Determination of father and child relationship - who may bring action - when action may be brought.
19-4-107.5 - Required notice of prior restraining orders to prevent domestic abuse - determination of parent and child relationship.
19-4-108 - Statute of limitations.
19-4-109 - Jurisdiction - venue.
19-4-110 - Parties.
19-4-111 - Pretrial proceedings.
19-4-112 - Genetic or other tests.
19-4-113 - Evidence relating to paternity,
This article shall be known and may be cited as the “Uniform Parentage Act”.
Source: L. 87: Entire title R&RE, p. 793, § 1, effective October 1.
Law reviews. 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.
One basic purpose of this article is the establishment of the parent-child relationship, and another is the protection of that relationship. R. McG. v. J.W., 200 Colo. 345, 615 P.2d 666 (1980).
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 he 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).
Test for in personam jurisdiction over child. The test to be applied in determining whether a court has in personam jurisdiction over a child in a paternity action is whether the child has certain minimum contacts so that “the maintenance of the suit does not offend traditional notions of fair play and substantial justice”. Smith v. Casey, 198 Colo. 433, 601 P.2d 632 (1979).
As used in this article, “parent and child relationship” means the legal relationship existing between a child and his natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. “Parent and child relationship” includes the mother and child relationship and the father and child relationship.
Source: L. 87: Entire title R&RE, p. 793, § 1, effective October 1.
Law reviews. 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). For comment, “The Unwed Father's Parental Rights and Obligations After S.P.B.: A Retreat in Constitutional Protection”, see 60 Den. L.J. 659 (1983).
Annotator's note. The following annotations include cases decided under former provisions similar to this section.
One basic purpose of this article is the establishment of the parent-child relationship, and another is the protection of that relationship. R. McG. v. J.W., 200 Colo. 345, 615 P.2d 666 (1980).
Applied in People in Interest of S.P.B., 651 P.2d 1213 (Colo. 1982).
The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.
Source: L. 87: Entire title R&RE, p. 793, § 1, effective October 1.
Law reviews. 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). For comment, “The Unwed Father's Parental Rights and Obligations After S.P.B.: A Retreat in Constitutional Protection”, see 60 Den. L.J. 659 (1983).
Annotator's note. The following annotations include cases decided under former provisions similar to this section.
One basic purpose of this article is the establishment of the parent-child relationship, and another is the protection of that relationship. R. McG. v. J.W., 200 Colo. 345, 615 P.2d 666 (1980).
Applied in People in Interest of S.P.B., 651 P.2d 1213 (Colo. 1982).
The parent and child relationship may be established between a child and the natural mother by proof of her having given birth to the child or by any other proof specified in this article, between a child and the natural father pursuant to the provisions of this article, or between a child and an adoptive parent by proof of adoption.
Source: L. 87: Entire title R&RE, p. 793, § 1, effective October 1.
Am. Jur.2d. See 10 Am. Jur.2d, Bastards, § 46.
Annotator's note. The following annotations include cases decided under former provisions similar to this section.
One basic purpose of this article is the establishment of the parent-child relationship, and another is the protection of that relationship. R. McG. v. J.W., 200 Colo. 345, 615 P.2d 666 (1980).
Section authorizes establishment of paternal relationship between a 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).
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 he 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).
(1) A man is presumed to be the natural father of a child if:
(a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, within three hundred days after the marriage is terminated by death, annulment, declaration of invalidity of marriage, dissolution of marriage, or divorce, or after a decree of legal separation is entered by a court;
(b) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:
(I) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage or within three hundred days after its termination by death, annulment, declaration of invalidity of marriage, dissolution of marriage, or divorce; or
(II) If the attempted marriage is invalid without a court order, the child is born within three hundred days after the termination of cohabitation;
(c) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and:
(I) He has acknowledged his paternity of the child in writing filed with the court or registrar of vital statistics, if such acknowledgment has not previously become a legal finding pursuant to paragraph (b) of subsection (2) of this section;
(II) With his consent, he is named as the child's father on the child's birth certificate; or
(III) He is obligated to support the child under a written voluntary promise or by court order or by an administrative order issued pursuant to section 26-13.5-110, C.R.S.;
(d) While the child is under the age of majority, he receives the child into his home and openly holds out the child as his natural child;
(e) He acknowledges his paternity of the child in a writing filed with the court or registrar of vital statistics, which shall promptly inform the mother of the filing of the acknowledgment, and she does not dispute the acknowledgment within a reasonable time after being informed thereof, in a writing filed with the court or registrar of vital statistics, if such acknowledgment has not previously become a legal finding pursuant to paragraph (b) of subsection (2) of this section. If another man is presumed under this section to be the child's father, acknowledgment may be effected only with the written consent of the presumed father or after the presumption has been rebutted.
(f) The genetic tests or other tests of inherited characteristics have been administered as provided in section 13-25-126, C.R.S., and the results show that the alleged father is not excluded as the probable father and that the probability of his parentage is ninety-seven percent or higher.
(2) (a) A presumption under this section may be rebutted in an appropriate action only by clear and convincing evidence. If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man.
(b) A duly executed voluntary acknowledgment of paternity shall be considered a legal finding of paternity on the earlier of:
(I) Sixty days after execution of such acknowledgment; or
(II) On the date of any administrative or judicial proceeding pursuant to this article or any administrative or judicial proceeding concerning the support of a child to which the signatory is a party.
(c) A legal finding of paternity may be challenged in court only on the basis of fraud, duress, or mistake of material fact, with the burden of proof upon the challenger. Any legal responsibilities resulting from signing an acknowledgment of paternity, including child support obligations, shall continue during any challenge to the finding of paternity, except for good cause shown.
Source: L. 87: Entire title R&RE, p. 793, § 1, effective October 1. L. 89: (1)(c)(III) amended, p. 1247, § 3, effective April 1. L. 91: (1)(f) amended, p. 253, § 10, effective July 1. L. 97: (1)(c)(I), (1)(e), and (2) amended, p. 1274, § 13, effective July 1.
Cross references: For the legislative declaration contained in the 1997 act amending this section, see section 1 of chapter 236, Session Laws of Colorado 1997.
Am. Jur.2d. See 10 Am. Jur.2d, Bastards, § § 10-18.
C.J.S. See 14 C.J.S., Children Out-of-Wedlock, § § 13-17.
Law reviews. 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). For article, “Legislative Update”, see 12 Colo. Law. 1257 (1983).
Annotator's note. The following annotations include cases decided under former provisions similar to this section.
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).
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 he 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).
Presumed father under subsection (1)(d). When man received child into his home and openly held out the child as his natural child, he is presumed to be the father, and it is an error for court to dismiss in summary judgment proceedings. D.S.P. v. R.L.K., 677 P.2d 959 (Colo. App. 1983).
Presumption is procedural, and retroactive application is proper where action commenced prior to enactment of this section. People in Interest of R.F.A., 744 P.2d 1202 (Colo. App. 1987).
Any presumption of paternity established under this section may be rebutted in an appropriate action by clear and convincing evidence or by a court decree establishing paternity of the child by another man. People in Interest of R.T.L., 780 P.2d 508 (Colo. 1989).
It is clear from subsection (1)(a) of this section and § 19-4-107 (1)(b) 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).
In cases in which paternity is disputed, whether in a proceeding under this article or article 6, paternity must be determined according to the procedures outlined under this article before the legal obligation for support can be imposed. People in Interest of R.T.L. 780 P.2d 508 (Colo. 1989).
An interpretation of § 19-4-107 (1)(b) 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 subsection (1)(a) of this section notwithstanding that the man would have been precluded by § 19-4-107 (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).
Applicability of doctrine of res judicata. Failure to raise the defense of nonpaternity during dissolution proceedings bars a presumed father from collaterally attacking the determination of paternity implicitly supporting award of child support incident to such dissolution proceedings brought under URESA. State Ex Rel. Daniels v. Daniels, 817 P.2d 632 (Colo. App. 1991).
For evidence sufficient to show nonaccess, see M.W. and A.W. v. D.G., 710 P.2d 1174, (Colo. App. 1985).
Applied in Jefferson County Dep't of Social Servs. v. D.A.G., 199 Colo. 315, 607 P.2d 1004 (1980); B.G. v. S.G., 199 Colo. 403, 609 P.2d 121 (1980); K.H.R. By and Through D.S.J. v. R.L.S., 807 P.2d 1201 (Colo. App. 1990).
(1) All proceedings under this article shall be commenced in the manner provided by the Colorado rules of civil procedure or as otherwise provided in this section or section 26-13.5-104, C.R.S.
(2) Upon commencement of a proceeding under this article by one of the parties, the other parties shall be served in the manner set forth in section 19-4-109 (2), the Colorado rules of civil procedure, or as otherwise provided in section 26-13.5-104, C.R.S.
Source: L. 94: Entire section added, p. 1541, § 13, effective May 31. L. 96: Entire section amended, p. 612, § 13, effective July 1.
(1) If, under the supervision of a licensed physician and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband's consent must be in writing and signed by him and his wife. The physician shall certify their signatures and the date of the insemination and shall file the husband's consent with the department of public health and environment, where it shall be kept confidential and in a sealed file; however, the physician's failure to do so does not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician or elsewhere, are subject to inspection only upon an order of the court for good cause shown.
(2) The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived.
Source: L. 87: Entire title R&RE, p. 794, § 1, effective October 1. L. 94: (1) amended, p. 2737, § 366, effective July 1.
Am. Jur.2d. See 10 Am. Jur.2d, Bastards, § 10.
C.J.S. See 14 C.J.S., Children Out-of-Wedlock, § 2.
Law reviews. For comment, “In the Interest of R.C., Minor Child: The Colorado Artificial Insemination by Donor Statute and the Non-Traditional Family”, see 67 Den. U. L. Rev. 79 (1990).
In cases in which paternity is disputed, whether in a proceeding under this article or article 6, paternity must be determined according to the procedures outlined under this article before the legal obligation for support can be imposed. People in Interest of R.T.L., 780 P.2d 508 (Colo. 1989).
An interpretation of § 19-4-107 (1)(b) 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 subsection (1)(a) of this section notwithstanding that the man would have been precluded by § 19-4-107 (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).
The primary purpose of this section is to provide a legal mechanism for married and unmarried women to obtain a supply of semen for use in artificial insemination and, in the case of married recipients, to make clear that legal rights and duties of fatherhood are borne by the recipient's husband rather than by the donor. In the Interest of R.C., 775 P.2d 27 (Colo. 1989).
The provisions of this section do not apply when the known semen donor and the unmarried recipient agree that the known donor would have parental rights and expressly agree at the time of insemination that the donor would be treated as the natural father of any child so conceived. In the Interest of R.C., 775 P.2d 27 (Colo. 1989).
Where issue of consent to artificial insemination was adjudicated and conclusively determined in dissolution of marriage action, doctrine of collateral estoppel bars relitigation of consent issue in subsequent suit against physician who performed procedure without plaintiff's written consent. Hill v. Hulet, 881 P.2d 460 (Colo. App. 1994).
(1) A child, his natural mother, or a man presumed to be his father under 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 social services, pursuant to article 13 or 13.5 of title 26, C.R.S., or article 5 of title 14, C.R.S., may bring an action:
(a) 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
(b) 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.
(2) Any interested party, including the state, the state department of human services, or a county department of social services, pursuant to article 13 or 13.5 of title 26, C.R.S., or article 5 of title 14, C.R.S., may bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed under section 19-4-105 (1) (d), (1) (e), or (1) (f).
(3) An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under section 19-4-105 may be brought by the state, the state department of human services, a county department of 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.
(4) 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.
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.
Am. Jur.2d. See 10 Am. Jur.2d, Bastards, § § 18, 85.
C.J.S. See 14 C.J.S., Children Out-of-Wedlock, § § 50-52.
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 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 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).
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).
The Colorado supreme court denied certiorari in the case annotated under this catchline in the 1986 replacement volume. See M.S. v. C.K.A., 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 Dep't of Social 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).
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, 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).
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).
When filing a proceeding under this article, the filing party shall have a duty to disclose to the court the existence of any prior temporary or permanent restraining orders to prevent domestic abuse issued pursuant to article 14 of title 13, C.R.S., and any emergency protection orders issued pursuant to section 14-4-103, C.R.S., entered against either party by any court within ninety days prior to the filing of the proceeding to determine the parent and child relationship. The disclosure required pursuant to this section shall address the subject matter of the previous restraining orders or emergency protection orders, including the case number and jurisdiction issuing such orders.
Source: L. 95 : Entire section added, p. 84, § 2, effective July 1. L. 99: Entire section amended, p. 503, § 14, effective July 1.
An action to determine the existence of the father and child relationship may be brought at any time prior to the child's eighteenth birthday by the mother or father of said child, by the child, or by the delegate child support enforcement agency. If, however, the statute of limitations in effect at the time of the child's birth was less than eighteen years, the delegate child support enforcement agency may bring an action on behalf of the said child at any time prior to the child's twenty-first birthday. An action brought by a child whose paternity has not been determined may be brought at any time prior to the child's twenty-first birthday. This section and section 19-4-107 do not extend the time within which a right of inheritance or a right to a succession may be asserted beyond the time provided by law relating to distribution and closing of decedents' estates or to the determination of heirship, or otherwise.
Source: L. 87: Entire title R&RE, p. 795, § 1, effective October 1; entire section amended, p. 1587, § 59, effective May 31. L. 88: Entire section amended, p. 634, § 11, effective July 1. L. 89: Entire section amended, p. 794, § 19, effective July 1.
Editor's note: Prior to the repeal and reenactment of this title in 1987, the statute of limitations to determine a father and child relationship was contained in section 19-6-108. The statute of limitations as contained in that section was changed by L. 85, p. 596, § 18, to eighteen years. For the statute of limitations in effect prior to the change in 1985, see section 19-6-108 as contained in the 1978 Replacement Volume 8 and in annual supplements thereto prior to 1985.
Am. Jur.2d. See 10 Am. Jur.2d, Bastards, § § 78, 79.
C.J.S. See 14 C.J.S., Children Out-of-Wedlock, § 81.
Annotator's note. The following annotations include cases decided under former provisions similar to this section.
Although § 19-4-107 (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, this section 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).
Extension of statute of limitations may create a remedy, but may not revive an existing cause of action. People v. Holleron, 797 P.2d 806 (Colo. App. 1990).
This section violates the equal protection clause of the fourteenth amendment of the U.S. Constitution in that it treated children with presumed fathers differently than children without presumed fathers. People in Interest of J.M.A., 803 P.2d 187 (Colo. 1990) (decided under law in effect prior to 1985 and subsequent amendments).
Period of limitation fixed when cause accrues. The period of limitation to be applied to plaintiff's action is initially determined by the statute effective when the cause accrued, and once the permissible time for commencing an action has expired and the bar created by the statute has attached, the rights and obligations of the parties are fixed. D.Z.M. v. D.A.G., 41 Colo. App. 377, 592 P.2d 1 (1978), aff'd, 199 Colo. 315, 607 P.2d 1004 (1980).
Section does not deny children whose parentage has not been established equal protection since the section bars actions brought by the mother or the state after three years but not actions by or on behalf of the child. People in Interest of T.L.H., 701 P.2d 87 (Colo. App. 1984).
(1) Without limiting the jurisdiction of any other court, the juvenile court has jurisdiction of an action brought under this article. A delegate child support enforcement unit also has jurisdiction to establish paternity in noncontested paternities in accordance with the procedures specified in article 13.5 of title 26, C.R.S. The action may be joined with an action in another court of competent jurisdiction for dissolution of marriage, legal separation, declaration of invalidity of marriage, or support.
(1.5) A paternity determination made by another state, whether established through voluntary acknowledgment, administrative processes, or judicial processes, shall be enforced and otherwise treated in the same manner as a judgment of this state.
(2) A person who has sexual intercourse in this state thereby submits to the jurisdiction of the courts of this state as to an action brought under this article with respect to a child who may have been conceived by that act of intercourse. Upon filing of the petition, the court shall issue a summons. The hearing shall be set for a day not less than ten days after service is completed or on such later date as the court may order. In addition to any other method provided by rule or statute, including rule 4(f) of the Colorado rules of civil procedure, personal jurisdiction over an individual outside this state may be acquired by delivering a copy of the summons, together with a copy of the petition upon which it was issued, to the individual served. Such service may be by private process server or by sending such copies to such individual by certified mail with proof of actual receipt by such individual.
(3) The action may be brought in the county in which the child or the alleged father resides or is found, or in any county where public assistance was or is being paid on behalf of the child, or, if the father is deceased, in any county in which proceedings for probate of his estate have been or could be commenced.
Source: L. 87: Entire title R&RE, p. 795, § 1, effective October 1. L. 89: (1) amended, p. 1247, § 5, effective April 1; (3) amended, p. 794, § 20, effective July 1. L. 94: (1.5) added and (2) amended, p. 1541, § 14, effective May 31.
Am. Jur.2d . See 10 Am. Jur.2d, Bastards, § § 76, 77.
C.J.S. See 14 C.J.S., whildre Out-of-Wedlock, § § 83, 84.
Venue provision of subsection (3) prevails over any conflicting provisions in the Colorado rules of civil procedure. In re U.M. v. District Court, 631 P.2d 165 (Colo. 1981).
The district court has exclusive jurisdiction in certain matters concerning children, such as dissolutions of marriage or legal separation. Thus, the effect of subsection (1) of this section is to provide an alternate forum for the resolution of paternity disputes. In re De La Cruz, 791 P.2d 1254 (Colo. App. 1990).
Subsection (1) of this section does not require that a parentage action be brought in the juvenile court before joinder with action in another court, and the district court had the authority to determine the issue of parentage once it was raised by the presumed father. In re De La Cruz, 791 P.2d 1254 (Colo. App. 1990).
Applied in People in Interest of M.E.W.F., 42 Colo. App. 495, 600 P.2d 108 (1979).
The child may be made a party to the action. If the child is a minor, the court may appoint a guardian ad litem. The child's mother or father may not represent the child as guardian or otherwise. The natural mother, each man presumed to be the father under section 19-4-105, and each man alleged to be the natural father shall be made parties or, if not subject to the jurisdiction of the court, shall be given notice of the action in a manner prescribed by the court and an opportunity to be heard. The court may align the parties.
Source: L. 87: Entire title R&RE, p. 796, § 1, effective October 1. L. 93: Entire section amended, p. 954, § 3, effective May 28.
C.J.S. See 14 C.J.S., Children Out-of-Wedlock, § 90.
Law reviews. 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.
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).
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).
The child is an indispensable party to a paternity proceeding. Unless the child can be made a party, the trial court is without jurisdiction to resolve any matters pertaining to the paternity suit. In re Burkey, 689 P.2d 726 (Colo. App. 1984).
Intervention by department of social services. Where the interest of the department of social services in a support obligation owed to a dependent child is contingent on the outcome of a paternity action, it was improper to allow it to intervene as a party to the action. However, such action was harmless since the department could have enforced its interest derived from the paternity proceeding in a separate proceeding following entry of the order determining paternity. J.E.S. v. F.F., 762 P.2d 703 (Colo. App. 1988).
A child must be made a party to a paternity action and must be represented individually by an appropriate fiduciary despite the language in the statute that the court may appoint a guardian ad litem. People in Interest of E.E.A. v. J.M., 854 P.2d 1346 (Colo. App. 1992); S.O.V. v. People in Interest of M.C., 914 P.2d 355 (Colo. 1996).
Guardian ad litem is not a true party to a paternity proceeding. To be a true party, a person must be competent to sue, have the right to control the proceedings, to defend, to present and cross-examine witnesses, and to appeal in his or her own right. In a paternity proceeding, a guardian ad litem is appointed for the sole purpose of representing the child's best interests and, although the child is a party, the guardian ad litem does not have the right to control the proceedings, to defend the action, or to appeal in his or her own right. In Interest of A.R.W., 903 P.2d 10 (Colo. App. 1994).
While the trial court erred in determining its own subject matter jurisdiction, because the error in finding that the child did not have to be made a proper party could have been corrected on direct appeal, the doctrines of claim and issue preclusion bar any collateral attack on the trial court's original jurisdiction. People in Interest of E.E.A. v. J.M., 854 P.2d 1346 (Colo. App. 1992).
While the trial court erred in finding that the child did not have to be made a proper party, the error was based on a statute with inherently contradictory language and, therefore, the court did not manifestly abuse its authority in entertaining the action. People in Interest of E.E.A. v. J.M., 854 P.2d 1346 (Colo. App. 1992).
Absent special circumstances, once a determination of paternity has been made and permanent orders entered resolving custody, child support, and parenting time, the appointment of the guardian ad litem terminates. The Uniform Parentage Act is ambiguous as to the length of the guardian ad litem's appointment and there is no reason why the child and parents should suffer the expense and continued invasion of privacy caused by the indefinite appointment of a guardian ad litem, although the court may conclude that appointment of a guardian is necessary for a limited purpose or duration when issues are raised after the entry of permanent orders. In Interest of A.R.W., 903 P.2d 10 (Colo. App. 1994).
The 1993 amendment to this section was a change in procedural law and therefore applied to causes of action that existed on the effective date of the amendment. People ex rel. Orange County v. M.A.S., 962 P.2d 339 (Colo. App. 1998).
Applied in Jefferson County Dep't of Social Servs. v. D.A.G., 199 Colo. 315, 607 P.2d 1004 (1980).
(1) As soon as practicable after an action to declare the existence or nonexistence of the father-child relationship has been brought, an informal hearing shall be held if it is determined by the court to be in the child's best interest. The court may order that the hearing be held before a magistrate. The public shall be barred from the hearing if it is determined by the court to be in the best interest of any of the parties. A record of the proceeding or any portion thereof shall be kept if any party requests or the court orders. Rules of evidence need not be observed.
(2) Upon the refusal of any witness, including a party, to testify under oath or produce evidence, the court may order such witness to testify under oath and produce evidence concerning all relevant facts. If the refusal is upon the ground that such witness' testimony or evidence might tend to incriminate such witness, the court may grant such witness immunity from the use of the testimony or evidence the witness is required to produce to prove the commission of a criminal offense by the witness. The refusal of a witness who has been granted immunity to obey an order to testify or produce evidence is a civil contempt of the court.
(3) Testimony of a physician concerning the medical circumstances of the pregnancy and the condition and characteristics of the child upon birth is not privileged.
(4) Upon the filing of a petition under this article, any party may seek the issuance of a temporary restraining order or injunction under the criteria set forth in section 14-10-108, C.R.S. Any party may further seek temporary orders as to the allocation of parental responsibilities, including allocation of decision-making responsibility and parenting time, and support once an order determining the existence of the parent and child relationship has been entered by the court. The filing of a motion for temporary orders shall not prevent a party or public agency from seeking other relief as may be provided by this article. Issues of temporary orders concerning the allocation of parental responsibilities, including decision-making responsibility and parenting time, and issues of support shall be determined in accordance with the criteria set forth in the “Uniform Dissolution of Marriage Act”, article 10 of title 14, C.R.S. Any temporary restraining order issued pursuant to this subsection (4) shall be on a standardized form prescribed by the judicial department, and a copy shall be provided to the protected person.
(5) At the time a restraining order is requested pursuant to this section, the court shall inquire about, and the requesting party and such party's attorney shall have an independent duty to disclose, knowledge such party and such party's attorney may have concerning the existence of any prior restraining orders of any court addressing in whole or in part the subject matter of the requested restraining order.
(6) The duties of peace officers enforcing orders issued pursuant to this section shall be in accordance with section 18-6-803.5, C.R.S., and any rules adopted by the Colorado supreme court pursuant to said section.
Source: L. 87: Entire title R&RE, p. 796, § 1, effective October 1. L. 91: (1) amended, p. 363, § 35, effective April 9. L. 93: (2) amended, p. 1737, § 30, effective July 1. L. 94: (4) to (6) added, p. 2016, § 11, effective January 1, 1995. L. 98: (4) amended, p. 1409, § 70, effective February 1, 1999.
Am. Jur.2d. See 10 Am. Jur.2d, Bastards, § 123.
C.J.S. See 14 C.J.S., Children Out-of-Wedlock, § 94.
Upon motion of the court or any of the interested parties, genetic tests or other tests of inherited characteristics shall be ordered and the results received in evidence, as provided in section 13-25-126, C.R.S. Upon agreement of the mother and the presumed or alleged father or fathers, genetic tests or other tests of inherited characteristics may be administered prior to filing of an action. If the action is then filed, the test results shall be admitted into evidence as provided in section 13-25-126, C.R.S.
Source: L. 87: Entire title R&RE, p. 796, § 1, effective October 1. L. 91: Entire section amended, p. 254, § 11, effective July 1.
Am. Jur.2d. See 10 Am. Jur.2d, Bastards, § 118.
C.J.S. See 14 C.J.S., Children Out-of-Wedlock, § 108.
Law reviews. 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). For article, “Legislative Update”, see 12 Colo. Law. 1257 (1983).
Annotator's note. The following annotations include cases decided under former provisions similar to this section.
Requirement of blood tests. On motion of the alleged father the trial of the issue of paternity of the unborn child shall not be held until after blood grouping tests are available. People in Interest of Unborn Child v. Estergard, 169 Colo. 445, 457 P.2d 698 (1969) (decided under former § 19-6-104 prior to the 1977 repeal and reenactment of this article).
Evidence from tests sufficient for summary judgment. K.H.R. By and Through D.S.J. v. R.L.S., 807 P.2d 1201 (Colo. App. 1990).
(1) Evidence relating to paternity may include:
(a) Evidence of sexual intercourse between the mother and alleged father at any possible time of conception;
(b) An expert's opinion concerning the statistical probability of the alleged father's paternity based upon the duration of the mother's pregnancy;
(c) Genetic test results, weighted in accordance with evidence, if available, of the statistical probability of the alleged father's paternity;
(d) Medical or anthropological evidence relating to the alleged father's paternity of the child based on tests performed by experts. If a man has been identified as a possible father of the child, the court may, and upon request of a party shall, require the child, the mother, and the man to submit to appropriate tests; and
(e) All other evidence relevant to the issue of paternity of the child.
(2) In any action brought pursuant to article 13 or 13.5 of title 26, C.R.S., the parties shall be required to use the laboratory designated by the delegate child support enforcement unit for genetic tests or other tests of inherited characteristics. Any subsequent test or other tests shall be determined by the court as provided in section 13-25-126, C.R.S.
Source: L. 87: Entire title R&RE, p. 796, § 1, effective October 1. L. 92: (2) added, p. 183, § 1, effective August 1. L. 97: (1)(c) amended, p. 562, § 9, effective July 1.
Am. Jur.2d. See 10 Am. Jur.2d, Bastards, § § 104-122.
C.J.S. See 14 C.J.S., Children Out-of-Wedlock, § § 100-109.
Annotator's note. The following annotations include cases decided under former provisions similar to this section.
Common-law rule of testimony of parties. The common-law rule prohibiting a husband or wife from testifying to nonaccess in filiation cases first arose in the middle of the 18th century. Colorado adopted the common law of England as it existed prior to the announcement of that rule. Vasquez v. Esquibel, 141 Colo. 5, 346 P.2d 293 (1959).
There is a presumption of legitimacy of children born to a married woman. Vasquez v. Esquibel, 141 Colo. 5, 346 P.2d 293 (1959).
Such presumption may be overcome by evidence of nonaccess of the husband during the period when conception occurred, and it is error to reject such evidence in an action to establish paternity of a child. Vasquez v. Esquibel, 141 Colo. 5, 346 P.2d 293 (1959).
Burden of proof. If the presumption of legitimacy of children born to a married woman is overcome, it would still be incumbent on a petitioner to establish to the satisfaction of a trial court that a respondent was the father of a child, but he cannot rely on the outmoded and archaic conclusiveness of a presumption in the light of facts which a petitioner offers to prove. Vasquez v. Esquibel, 141 Colo. 5, 346 P.2d 293 (1959).
Preponderance of proof required. The trial court's instruction to the effect that petitioner must prove paternity by a preponderance of the evidence, rather than by clear and convincing evidence, correctly stated the law. McCoy v. People in Interest of Minor Child, 165 Colo. 407, 439 P.2d 347 (1968).
Prima facie case established. In a proceeding to determine paternity of a child, a petitioner's testimony of acts of intercourse with respondent and her pregnancy following and birth of the child within the permissible period is sufficient to establish a prima facie case and require submission of the issues to a jury. Medina v. Gonzales, 141 Colo. 118, 347 P.2d 138 (1959).
Evidence of specific resemblance is probative of paternity and should be admitted, but only when presented by a qualified expert witness who relates to the jury those characteristics which bear on paternity. People in Interest of R.D.S., 183 Colo. 89, 514 P.2d 772 (1973).
Scientific foundation for evidence of specific resemblance. Unlike evidence of general resemblance, there is a firm scientific foundation for inferring parentage from the existence of evidence of specific resemblance. People in Interest of R.D.S., 183 Colo. 89, 514 P.2d 772 (1973).
This section is sufficiently broad to order the husband, who was the presumed father, to submit to blood tests. People in Interest of M.P.R., 723 P.2d 743 (Colo. App. 1986).
Human leukocyte antigen test admissible on issue of paternity because it is capable of establishing either that an individual could not be the father of a certain child or that the probability that he is the father exceeds ninety percent. E.M.F. v. N.N., 717 P.2d 961 (Colo. App. 1985).
Exhibition of child is discretionary. In a paternity action, the question of whether the child is to be exhibited before the trier of fact is a discretionary matter on the part of the trial court, and its determination will be upheld on review in the absence of an abuse of that discretion. In re People in Interest of R.D.S., 32 Colo. App. 26, 507 P.2d 481, aff'd, 183 Colo. 89, 514 P.2d 772 (1973).
Refusal to allow such exhibition upheld. Where the court ruled in a paternity action that exhibition of the child would have been of no probative value, and appellant made no offer of proof and advanced no argument that could have been a basis for the reviewing court to determine that the trial court was in error, and where the existence of the child was not in dispute, and ample evidence was presented to support a verdict for or against either party, there was no abuse of discretion in the court's ruling. In re People in Interest of R.D.S., 32 Colo. App. 26, 507 P.2d 481, aff'd, 183 Colo. 89, 514 P.2d 772 (1973).
Exhibition of child for purpose of showing general resemblance denies right to cross-examination. Exhibition of a child to the jury in a paternity action for the purpose of showing general resemblance without expert testimony effectively denies the respondent the right of cross-examination, because the mere exhibition of a child without comment leaves a jury with the uncontroverted inference of similarities between such child and the alleged father. People in Interest of R.D.S., 183 Colo. 89, 514 P.2d 772 (1973).
And is of questionable probative value and irrelevant. Because the probative force of evidence of general resemblance is questionable, yet gives rise to the conflicting interest of undue jury sympathy, prejudice, and confusion, exhibition of a child to jury, when offered to show paternity by way of general resemblance is irrelevant as a matter of law. People in Interest of R.D.S., 183 Colo. 89, 514 P.2d 772 (1973).
No statutory basis for guardian ad litem obtaining genetic testing in a paternity proceeding at the expense of the department of social services or a county to provide a basis for diagnosing future problems that a minor child may encounter in later years. Figueroa v. Juvenile Court, 197 Colo. 510, 595 P.2d 223 (1979).
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