Summary
holding that a five-year statute of limitations strictly applies to a challenge of paternity of a child born during marriage
Summary of this case from Ex Parte W.JOpinion
No. 85CA1407
Decided November 20, 1986. Rehearing Denied January 15, 1987. Certiorari Denied R.E.H. May 18, 1987 (87SC77).
Appeal from the District Court of Arapahoe County Honorable Joyce S. Steinhardt, Judge
Jeffrey L. Hill, Guardian Ad Litem.
Charles P. Miller, P.C., Charles P. Miller, for Petitioner-Appellant.
John L. Springer, for Respondent-Appellee.
Petitioner, R.E.H., appeals the trial court judgment dismissing his action in which he sought a declaration that he was not the father of S.L.H., a minor child. We affirm.
Petitioner married the child's mother, J.M.H., on April 1, 1972. S.L.H. was born June 16, 1972. The parties' marriage was dissolved on July 18, 1984. In his petition for dissolution, petitioner admitted that S.L.H. was a child of the marriage, and petitioner is obligated by court order to pay $350 monthly support for the child.
On March 26, 1985, petitioner filed a "Petition for Determination of Parentage" under § 19-6-107, C.R.S.(1986 Repl. Vol. 8B) of the Uniform Parentage Act (UPA). Both the child's mother and guardian ad litem acknowledge that petitioner is not the child's biological father. The trial court dismissed the petition as barred by the statute of limitations, § 19-6-107(1)(b), C.R.S. (1986 Repl. Vol. 8B), which requires an action to declare the nonexistence of paternity to be brought within five years of the child's birth.
Because the child was born before the UPA was adopted in 1977, the controlling statute of limitations would normally be the statute in effect at the time the cause of action accrued in 1972. See D.Z.M. v. D.A.G., 41 Colo. App. 377, 592 P.2d 1 (1978), aff'd sub nom., Jefferson County Department of Social Services v. D.A.G., 199 Colo. 315, 607 P.2d 1004 (1980). That statute, 1967 Perm. Supp., C.R.S. 1963, 22-6-1(2), reenacted in § 19-6-101(2), C.R.S., provided that no proceeding to establish the paternity of a child shall be initiated after the child is five years old. Thus, any cause of action under that statute would have been barred after June 16, 1977. See 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).
However, the former statute provided that paternity proceedings could be commenced only by the mother, the child's guardian, or the county department of public welfare. 1967 Perm. Supp., C.R.S. 1963, 22-6-1(1). Actions by putative fathers were not authorized. See W.R.S. v. E.R., 41 Colo. App. 414, 588 P.2d 379 (1978). Thus, because petitioner had no cause of action under the former statute, he could not have been barred by its limitation period. See Jefferson County Department of Social Services v. D.A.G., supra. Under this analysis, we conclude that the UPA applies. See W.R.S. v. E.R., supra.
The UPA took effect July 1, 1977. Colo. Sess. Laws 1977, ch. 245, § 4 at 1019. We conclude that, even if passage of the UPA extended the time within which petitioner's action could have been brought, such action is nevertheless barred by the UPA's five-year statute of limitation.
Section 19-6-107(1)(b), C.R.S. (1986 Repl. Vol. 8B) provides that a man presumed to be the child's father under § 19-6-105(1)(a), C.R.S. (1986 Repl. Vol. 8B) may bring an action to declare the nonexistence of the father and child relationship presumed under § 19-6-105(1)(a) no later than five years after the child's birth. Section 19-6-105(1)(a) states that a man is presumed to be the natural father of a child if he and the child's natural mother have been married to each other and the child is born during the marriage.
Petitioner asserts that since he has received the child into his home and openly held the child out as his own, he is a presumed father under § 19-6-105(1)(d), C.R.S.(1986 Repl. Vol. 8B), and argues that he is therefore entitled to bring this action under the open-ended statute of limitations, § 19-6-107(2), C.R.S. (1986 Repl. Vol. 8B), which provides that "any interested party" may bring an action to determine nonexistence of paternity "at any time." See D.S.P. v. R.L.K., 677 P.2d 959 (Colo.App. 1983). However, § 19-6-105(2), C.R.S. (1986 Repl. Vol. 8B) states that: "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."
A basic purpose of the UPA is to protect the father-child relationship. R.McG. v. J.W., 200 Colo. 345, 615 P.2d 666 (1980). That purpose finds expression in the strong presumption of paternity accorded to a man married to the child's mother at the time of its birth. See § 19-6-105(1)(a), C.R.S. (1986 Repl. Vol. 8B); B.G. v. S.G., 199 Colo. 403, 609 P.2d 121 (1980); see also Lanford v. Lanford, 151 Colo. 211, 377 P.2d 115 (1962); People in Interest of R.M., 37 Colo. App. 209, 548 P.2d 1282 (1975).
The public policy favoring this presumption is avoidance of otherwise dire consequences to the child involved, as well as protection of the family unit. Lanford v. Lanford, supra; B.G. v. S.G., supra. Another important policy underlying this presumption is the improvement of the system of support enforcement. See 9A Uniform Laws Annot., Matrimony, Family Health Laws 582 (1979) (Commissioners' Prefatory Note).
To these ends, the UPA, like its predecessor, sets a limited time within which actions to determine the parent-child relationship must be brought. See §§ 19-6-107, 19-6-108, C.R.S. (1986 Repl. Vol. 8B) (paternity and nonpaternity); 1967 Perm. Supp., C.R.S. 1963, 22-6-1(2) (paternity). "Attack on the presumptions based on marriage . . . is restricted to a limited circle of potential contestants and in point of time." 9A Uniform Laws Annot., Matrimony, Family Health Laws 594 (1979) (Commissioners' Comment).
Such a time limitation is well within the General Assembly's power to enact, see People in Interest of L.B., supra, and furthers the public policy of maintaining stability in the family unit and providing children with a means of support by limiting the time within which challenges to the presumption of fatherhood must be brought. See § 19-1-102(1), C.R.S. (1986 Repl. Vol. 8B). Moreover, these provisions are to be liberally construed to serve the welfare of children and the best interests of society. Section 19-1-102(2), C.R.S. (1986 Repl. Vol. 8B); B.G. v. S.G., supra.
On the facts here, the presumption that petitioner is the natural father because the child was born during the parties' marriage has the greater weight of policy and logic behind it, and therefore, that presumption controls. Thus, petitioner's action to determine nonexistence of paternity fell under § 19-6-107(1)(b), and, because it was commenced more than five years after the UPA took effect, the trial court properly dismissed it as barred by that statute of limitations.
Judgment affirmed.
JUDGE METZGER concurs.
JUDGE VAN CISE dissents.