Parental presumption is the concept that when a married woman gives birth, her spouse is the child’s other legal parent. In Colorado, the parental presumption applies to create presumptive legal rights to a child for the spouse of the woman giving birth, whether the couple is same-sex or heterosexual. Colorado law states that a man is presumed to be the “natural father” of a child if he receives the child into his household and openly holds the child out as his natural child, if he and the child’s mother are married when the child is born or if the child is born within 300 days after the marriage is terminated, or if the child is the product of assisted reproduction. Colorado’s law has not been updated since the recognition of marriage equality and still uses gender-specific language, but the statutes explicitly allow for declarations of Maternity and for “Father” to mean “Mother” as appropriate and, further, Colorado courts have held that these “parental presumptions” apply equally to married same-sex couples.
A “second-parent adoption” allows a second parent (a non-biologic parent) to adopt a child who has a sole legal parent. In other words, this process allows a non-biological or non-birth parent to establish their legal rights as a legal parent. In a second-parent adoption the sole legal parent does not lose any parental rights, so the child is entitled to or has gained the benefits of having two legal parents. Colorado law allows second-parent adoption by a “specified second adult.” There is no requirement of marriage, and the statute is written in gender-neutral terms. Thus, in Colorado, second-parent adoptions are available to married and unmarried same-sex couples. Colorado courts require a home study report and a background check to be completed in a petition for a second-parent adoption. Upon a successful petition, the court will issue an adoption judgment, which must be recognized every state throughout the U.S.
A “step-parent adoption” is the legal adoption of a child by the spouse or partner of a child’s custodial legal parent. In Colorado, same-sex spouses or partners who are married or joined in a civil union may petition to adopt their spouse/partner’s child as a stepparent. The child’s custodial parent must consent to the adoption and any other non-custodial parent must have relinquished the parent-child relationship voluntarily or through court order. A home study is not typically required.
The primary difference between a second-parent and stepparent adoption
in Colorado is that the petitioning parent does not have to be in a legal relationship with the child’s legal parent for a second- parent adoption, but, in a stepparent adoption, the petitioning parent must be
in a marriage or civil union with the legal parent.