N.A.H. v. S.L.S.

9 P.3d 354 (2000)

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Nature of the Case

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Facts

A.H. (M) gave birth to a baby girl, S.R.H. At the time of S.R.H.'s conception and birth, M was married to H, and they lived together. H attended the child's birth, was listed on the birth certificate as the father, and accepted S.R.H. as his own child. The marriage was filled with domestic violence and problems. M had an extramarital affair with a coworker, P. During this time, M and P conceived S.R.H. M told P that he was the real father and that he would be listed on the birth certificate. For approximately eighteen months after S.R.H. was born, M left the child in P's care for ten hours every Friday while M worked. P also took S.R.H. on a weeklong trip out of state to meet his relatives. M and H eventually reconciled and began attending marriage counseling. M abruptly terminated P's visits with S.R.H. P petitioned for a determination of his parent-child relationship with S.R.H. on March 5, 1996. H was unaware that S.R.H. was not his biological daughter until P initiated this action. The magistrate ordered genetic testing of the parties. P submitted to such testing, but M did not present the child for testing. P moved for a declaration that he was the child's legal father under section 13-25-126(1)(a), 5 C.R.S. (1999), which provides that if a party refuses to submit to genetic tests, the court may adjudicate the question of parentage against that party. At that hearing, the Guardian Ad Litem (GAL) recommended P be allowed to pursue his paternity claim, and that the court assess the best interests of the child after the paternity determination. The magistrate issued an order declaring P to be the legal father. The magistrate recognized that under state law, H and P each were entitled to a presumption of legal fatherhood. He also recognized that the paternity statute required him to resolve the competing presumptions by considering policy and logic. The court stated that it recognizes that there continues to be a strong presumption of legitimacy, that presumption is overcome by the logic of the scientific evidence. M and H, (Ds) appealed this decision to the district court. The district court held that the magistrate should not have accepted the parties' stipulation as to the results of genetic testing. The district court ordered the parties to complete genetic testing, and the magistrate to hold a second hearing on the issue of paternity. M and H continued to delay genetic testing. P again moved for a declaration of paternity. Eventually, the tests were done, and they revealed P could not be excluded as S.R.H.'s biological father, and that the probability of his parentage was 99.68% when compared to an untested, unrelated Caucasian male. A second hearing was held, and the magistrate reiterated that he was deciding between competing presumptions based on policy and logic. The magistrate issued his second order declaring P to be S.R.H.'s legal father. He also ordered S.R.H.'s name to be changed, and the parties to work with a psychologist to formulate a plan to integrate P into S.R.H.'s life. On a second appeal, the district court ruled that in 'determining where the weightier considerations of policy and logic are to be found, the Court is to look closely at issues touching upon the best interests of the child.' After assessing the evidence, the district court concluded that 'nothing indicated to the magistrate that contact between P and S.R.H. would be contrary to S.R.H.'s best interest, nor was there any evidence indicating that for S.R.H. to become aware that P is her father would emotionally or in some other fashion harm her.' Therefore, the district court held that the magistrate's decision that P should be S.R.H.'s legal father was not clearly erroneous. The court of appeals held that the presumption of legitimacy, which would favor H as the legal father, was not irrebuttable. It affirmed. This appeal resulted.