What do I do if I can't find the other parent?

        Putative father means alleged father.  Custody is now allocation of parental responsibility. Visitation has been incorporated into the concept of parenting time.  Expenses of confinement include pre-natal care, delivery & birth, post natal care and medications or other related expense.  These are merely labels - don't let labels confuse or scare you.

        The definition of paternity is fatherhood.  A paternity lawsuit is brought to establish the legal parent-child relation between a man and a child, or to establish the non-existence of the legal relationship.  A paternity lawsuit may be brought be either the mother or the alleged father.  A lawsuit for declaration of non-paternity may also be brought by a birth mother, an alleged father, or by the presumptive father - the birth mother's current or former husband.

        Parent and child relationship defined.  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.  CRS 19-4-102

        Relationship not dependent on marriage.  The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.  CRS 19-4-103 

FILING THE LAWSUIT

        The birth mother, the putative father, or the State of Colorado may commence either a paternity lawsuit to establish the legal relation between father and child, or may commence a lawsuit for a Declaration of Non-Paternity - a court order establishing that no legal parent-child relationship exists.  If the legal relation is found and ordered, the court will then address the issues of allocation of parental responsibilities, parenting time and child support.

        The person who files the lawsuit is called the Petitioner.  The petition and a summons will be served upon the person who is being sued - he or she is called the Respondent.  The summons merely tells the Respondent he or she is being sued to determine parentage, and if established, orders will enter regarding allocation of parental responsibilities, parenting time and child support.  Paternity cases are filed in juvenile court; e-Filing is not available.

        Once a response has been filed, the case may not be dismissed (thrown out) unless both agree. If both agree, the case may be dismissed at any time until the final orders have been entered.  If one party wants an order regarding parentage, the other can not stop it.

        I have provided representation in cases where a birth mother files a paternity case against a putative father because she seeks child support, however the father has admitted paternity and requested that he be primarily responsible for decision making and be the primary caretaking parent.  See allocation of parental responsibility and parenting time below.  In such a circumstance, the birth mother can not unilaterally change her mind, say the money is not that important and dismiss the case. 
        Similarly, I have provided representation in cases where a putative father files a paternity case for declaration of paternity against a birth mother as next friend and mother of a child because he wishes to be involved in the child's life and is tired of the visitation denial, hassles or limitations imposed by the mother.  However, when the financial realities of confinement expenses, past and current child support, health insurance and income assignment come to bear, the putative father can not unilaterally change his mind, say visitation schedule is ok, let's maintain the status quo and dismiss the case.
        Prior to commencing the lawsuit, a litigant should be certain he / she actually desires final orders pertaining to all issues.  As the old saying goes, be careful what you ask for - you may get it.

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PROCESS SERVICE

        The petition and a summons will be served upon the other parent.  The summons merely tells the other parent he or she is being sued regarding paternity.  Service of process means that the papers will be handed to the Respondent, or perhaps published in the newspaper under limited circumstances.  Due process (fairness) requires you to inform the other parent that you are requesting an order regarding paternity, and the issues of parental responsibilities allocation, parenting time and child support.  On an average, service of process costs between $35 and $50, but can vary, especially if the Respondent is out of state.  If the Respondent is willing to sign a paper saying he or she received the legal documents, you can use the mail and there is no charge for service of process. That is called waiver and acceptance of service of process.  Persons being sued usually don't sign; I don’t recommend attempting waiver of service.  For information regarding process servers, refer to process service.

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WHEN TO FILE THE LAWSUIT

        Lawsuit to establish paternity may be brought at any time until the child attains majority (18th birthday). CRS 19-4-107(1)(a).  CRS 19-4-108

        A paternity lawsuit may be brought during pregnancy, People in Interest of Unborn Child v. Estergard, 169 Colo. 445, 457 P.2d 698 (1969).  If the putative father disputes paternity, orders can not be entered until live birth.  The following reasons come to mind to file before birth:
                Ease of service of process - the putative father is local and may subsequently move out of state or be difficult to locate.
                If parentage genetic testing has been ordered, the baby's blood may be drawn at birth from the umbilical cord.  This is less intrusive to the child. Also, 5 cc of blood is required for testing - this may delay the lawsuit until the child is 6+ months of age.  I'll not forget the wrath of screaming baby's mother in 1981 where multiple attempts to draw blood from veins in both arms were unsuccessful and femoral draw was necessary.  Now, a DNA specimen can be obtained by buccal swab - essentially knocking a few cells from the inside of the cheek by q-tip swab.

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STATUTE OF LIMITATIONS
BAR TO DEFENSE OF NON-PATERNITY

        If the presumptive father fails to bring an action to declare the non-existence of the parent-child relation within 5 years from the date of the child's birth, he is thereafter barred from the defense of non-parentage.  This is a 5 year statute of limitations.  CRS 19-4-107(1)(b).

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PARTIES TO THE LAWSUIT

        The birth mother and putative father are indispensable parties.  If the birth mother was married at the time of conception, as the presumptive father, he must also be joined as a party.  Tell your attorney if either alleges a different man is the birth father of a child.  Any man with whom the birth mother had sexual intercourse during the period relevant to conception should be joined as a party to the action and may be required to submit to genetic testing.  Tell your attorney if welfare has been received at any time since birth of the child.  Failure to provide notice to the local governmental Child Support Enforcement Unit (CSE) could later result in welfare fraud criminal charges if the State is not made a party or given lawful notice of the paternity suit.

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JURISDICTION AND VENUE

        Jurisdiction means the power of the Colorado Juvenile Courts to hear and decide the case.  Venue is the location (county) in which the lawsuit will be heard.

        Residency 
                One parent must physically reside in Colorado. No domicile requirement is contained in the parentage statutes.  Domicile is not the same as simply living here; a person acquires legal residency by having significant contacts with the state.  You must intend to permanently reside here, or return here after your travels are done.  Some of the domiciliary indicators are: Colorado driver's license, Colorado automobile registration, paying Colorado state income taxes, registration to vote in Colorado, banking in Colorado, and home ownership or having executed a lease.  For domicile, military personnel must claim Colorado as their home of record; an affidavit of residency is available at any military finance office, Form DD-2058.
                Since only physical residence is required, not domicile, a paternity lawsuit can be initiated on behalf of a person physically residing in Colorado, but claiming another state as legal residence.  That most common circumstance would be military families.  Local courts have entered final decrees of paternity or declarations of non-paternity for my clients in the military claiming another state as their legal residence.

        Jurisdiction may be acquired over any Respondent who is resident of or personally served in Colorado.

        Venue is in the county in which the child or Respondent resides or in which Respondent receives personal service. CRS 19-4-109

        If Respondent is physically present in Colorado, a paternity order (foreign decree) from another state can be registered in Colorado.  It will then be given full force and effect. and treated as a court order of this state. CRS 19-4-109(1.5)

        If the Respondent is a resident of another state and can not be personally served in Colorado, and if the sexual intercourse occurred in Colorado which resulted in conception of the child, Colorado courts have personal jurisdiction under the "long arm statute." CRS 19-4-109(2).  In this event, since Respondent is neither a Colorado resident nor physically present for process service, venue would lie in the child's county of residence (usually living with Petitioner).

        A paternity case is tried to the court; there is no right to trial by jury for this type of case in Colorado.  CRS 19-4-128

        Before the court may address the issues parental responsibilities allocation, parenting time and child support, legal parentage must be established.  This may be accomplished by admission of paternity by the putative father, or by genetic testing and other independent testimony or evidence.  CRS 19-4-113

        The burden of proof to establish paternity is by a preponderance of proof required, not by clear and convincing evidence.  McCoy v. People in Interest of Minor Child, 165 Colo. 407, 439 P.2d 347 (1968).  A prima facie case is established for paternity by petitioner's testimony of acts of intercourse with respondent and her pregnancy following and birth of the child within the permissible period - this evidence is sufficient to require submission of the issues to a jury. Medina v. Gonzales, 141 Colo. 118, 347 P.2d 138 (1959).

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PRESUMPTION OF PATERNITY

        A rebuttable presumption is created under certain factual circumstances, such as birth during or within 300 days of marriage termination, written acknowledgment of paternity filed with the court, consensual placement on the birth certificate, written voluntary promise to pay child support, genetic testing with 97% or higher probability of parentage. CRS 19-4-105

        The presumption may be rebutted in a paternity lawsuit by clear and convincing evidence.  CRS 19-4-105

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GENETIC TESTING

        Until HLA procedures developed at the War Memorial Blood Bank in Minneapolis, MN under Herbert Poleski in the late 1970's, science had not progressed to the point where blood testing could establish parentage. Previously blood types were used to exclude the possibility of parentage, but not to establish.

        Each party has the right to genetic testing - HLA and / or DNA.  CRS 19-4-112, CRS 13-25-126 and C.R.Civ.P. 35(a).  A hearing is held on the issue, however courts are inclined to order genetic tests because the scientific evidence is highly relevant.  If either party refuses to submit to genetic testing, the court will likely enter a final ruling on the issue of paternity adverse to the refusing party.  This makes it simple.
                If mom refuses genetic testing - he's not the dad.
                If putative dad refuses genetic testing - he is the legal dad.

        In years gone by only blood could be tested.  Today testing is done on blood or a buccal swab which is essentially a q-tip run across the inside of the mouth cheek. This knocks off cells which are subsequently tested for genetics.

        Human leukocyte antigen (HLA) test is 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).   A husband, who is the presumed father, may be ordered to submit to blood tests. People in Interest of M.P.R., 723 P.2d 743 (Colo. App. 1986).

        If genetic testing returns 97% or higher probability of parentage, a presumption of paternity is established. That presumption may be rebutted in a paternity lawsuit by clear and convincing evidence.  CRS 19-4-105.  An example of such evidence would be a vasectomy or other medical evidence of sterilization.  For information regarding DNA Laboratories which conduct paternity testing, refer to DNA laboratories - paternity testing.

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PATERNITY DECREE

        When genetic test results are received, usually paternity is admitted if test results show the putative father is the birth father.  If not, trial is held at which time the genetic test results are admitted into evidence along with other facts such as intercourse between the parties, mother's intercourse with other men, population statistics, prior oral admissions of either party, physical appearance of the child, cards-gifts-letters, prior support payments, etc.  If the genetic test results reflect that the putative father is not the birth father, decree of non-paternity enters.  Attorney's fees and costs may be awarded at final orders hearing.

        Child's Surname.  Issue periodically arises regarding the child's lawful surname - the mother may desire the child to have her last name and the father requests the child's last name be changed to his.  That can be a dispute.  Cases in various states are split on the issue.  Colorado has ruled in multiple cases; one is cited below.

        Once paternity has been established by decree and order has entered regarding the child's name:
                a.  Counsel will then forward a report of paternity and a certified copy of the paternity decree to the Department of Health - Vital Records in the state of the child's birth.  The original birth certificate is sealed, and a new birth certificate is prepared reflecting the birth parents as the lawful parents and only parents identified thereon.
                b.  The court then addresses the issues of parental responsibilities allocation, parenting time and child support.
                c.  Birth certificate cost

        Either party may request a temporary orders hearing, at which time the judge will allocate parental responsibility and enter orders regarding parenting time and child support.  That hearing may be held about 2-4 weeks after filing (before paternity determination), but usually is held shortly after paternity decree enters.  Thereafter, if the parties are unable to reach settlement agreement, frequently called a paternity agreement, the case is set for contested final orders hearing.

        The attorney will try to settle your case. If agreements can be reached with the other parent, the attorney will prepare a detailed written agreement. That agreement can generally be completed rapidly and will become part of the final decree (order).  Paternity has no waiting period as is required in divorce cases. If the parties are unable to agree, finalizing the case may take as long as 1 - 2 years.

        If the parents can not agree, the parties may undergo evaluations regarding allocation of parental responsibilities and parenting time, psychological evaluations and mediation.  Each may be required to produce copies of billings, canceled checks, bank statements, pension or other financial documents pertaining to expenses of confinement and evidence of income and expenditures as relevant to child support.  Each must file a detailed financial affidavit and a disclosure certificate must be filed with the court reflecting that he / she has provided numerous financial documents to the opposing party.  It is possible that depositions will be taken.  That means questioning under oath in front of a court reporter who records all statements.  Interrogatories may also be propounded.  Interrogatories are written questions which must be answered in writing under oath.  In the discovery phase of the case, each party has the opportunity to learn almost anything you want to know to prepare his / her case.  If paternity has not yet been ordered, inquiry may be made into sexual history relevant to conception.  The days of Perry Mason and surprises in court are gone.  Discovery can be quite expensive - cost can be reduced if each parent is open and voluntarily exchanges financial documents.

        If the parties can't settle and must set court hearings, mediation may be required before setting a contested final hearing.  Refer to the link for more information.  Before temporary or final orders hearings, most judges require a pre-trial statement; a written statement which tells the court of agreements, contested matters, facts and law, parenting plan and other disposition requested by each party.  Your attorney may attend a pre-trial or status conference with the judge at which time each attorney advises the judge what is agreed, what issues are in dispute, and what the court fight will be about.  Some judges / magistrates do not allow the litigants in their office during a pre-trial conference, others require the parties to be present.

        After final hearing, if a party does not like the judge's decision the party must request review by the District Court or appeal to the Court of Appeals.  Under some circumstances, a party may file a motion for recusal of the Court or for a new trial, but generally a party can not state you do not like the ruling and ask for a new judge or ruling.

Synopsis
How Do We Accomplish a Paternity Case?
Realistic Time Frames
"I want what I want, I want it all and I want it now" or "On-Demand"

        The legal system hasn't achieved the fast food market level of efficiency and probably never will.  Probably never should.  Prospective clients want to know how long will it take to commence a paternity case and how long the process will take.

        There are three primary focal points in paternity cases:
        1.  Is the putative (alleged) father the birth father.  This is determined primarily through laboratory testing if the parties dispute the fact.
        2.  Finances.  The two most important documentary aspects of paternity action financial computations are current child support and arrearages.  Each parent must arrive at settlement or litigation theory (pre-trial statement & brief) or the separation agreement (terms to be incorporated into the final decree if court fight can be avoided).  Comprehensible and concise computations are required to understand family finances and to draft a realistic settlement or litigation proposal.
        3.  What to do with respect to the children.  

        A lawyer can not offer advice regarding support or allocation of parental responsibilities and parenting time until he or she has an understanding of the family's finances, and family dynamics.  That's common sense.  Financial disclosure rules require an in-depth look at the family's financial circumstances at the time of filing.  A parenting plan must also be submitted.  Put another way, at the time of filing you must inform the court of the family circumstances and your proposal for relief - at least on an interim basis between establishing legal parentage and until final orders hearing.

        I have a fact sheet located within my primary website to aid in understanding of family finances and dynamics and case preparation.  I ask the client to provide realistic valuation numbers regarding income and expenses, assets and liabilities and to be thorough in describing family circumstances.  I ask that the client invest time locating, organizing, copying and providing relevant documents at the time I am retained.  Income is determined from paystubs, LES or projected income capability.  Income and expense numbers will be obtained - mutual disclosure is easier on the pocket book than discovery fights and obtaining income verification via subpoena.

         You feel the need for speed - how fast?  From the time attorney receives completed intake sheets and financial documentation, the paternity case can usually be prepared within 1 - 2 weeks.  If legal parentage does not appear to be contested, I prefer to submit a paternity agreement (settlement proposal) to the opposing party at or near the time of filing the petition or response if possible.  Settlement proposal is seldom accepted as first drafted, but changes shouldn't be significant if client has been realistic and has communicated with the other parent  or is aware of the opposing parent's goals.  Being aware of the other parent's position doesn't mean you agree; compromise or litigation will likely be required.  Initial financial scrutiny & settlement proposal method creates additional work for counsel and parties on the front end, but in this fashion we quickly determine whether settlement is a viable option or trial will be required.  If legal parentage laboratory testing is not needed and if you and the other parent can be objective, figure about 3 - 4 weeks of hard work to achieve a final resolution, then setting for an uncontested final hearing.  More fees are incurred at the outset than if the case were commenced with a simple summons and petition, but if the case can settle it will ultimately reduce attorney's fees and costs in the final analysis.  It also reduces headaches, heartaches, anxiety and stress if the case drags out.  If settled, paternity decree can usually be taken in less than 4 months from the time of filing and service of process.

        That's not "on-demand" or fast food mentality, but not a significant period if you and the other parent can be objective, realistic and reasonable.  If it's a court fight, plan to become quite patient.  

        Remember - the court's polestars will be the best interests of the children and fundamental fairness with respect to support.  If you enter into court fights, final outcome will likely be somewhere in the same ballpark of reason we are seeking in the initial analysis.  Use good judgment when contemplating your initial "wish list" or revisions thereto.

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Courtesy

        1.   Do not fight with the opposing parent, physically or orally.  You will gain nothing, except to make your paternity case much more difficult or incur criminal charges.

        2.  You must disconnect the buttons which have caused you emotional distress in the past.  No one knows better how to press your buttons than a former intimate partner.  You have commenced or are contemplating a paternity lawsuit - expect the opposing parent to play your buttons with more fervor than the "Phantom of the Opera."  Recognize your former partner is jabbing your all too familiar emotional sore spots due to his or her own negative emotions.  Do not give feedback; the jabs can be temporary if you don't feed the fight.  And... don't you become a concert pianist on the buttons.

        3.  You make the best decisions when you are rational and logical; no one can exercise clear judgment when we are over-emotional.  Decisions you will face in your paternity action and in normal communications with the opposing parent are some of the most important you may ever encounter with long term consequences.  Resolve your emotions in another forum; not in your litigation or dealings with the other parent.

        4.  You have business to conduct with ex-partner; treat the paternity as such.  Establish your new relationship starting now.  Give him or her the courtesy, dignity and respect you would give a stranger on the street.  Require the same be given you in return.

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Children and Manipulation

        1.  Do not let children hear any derogatory or bad statements about their other parent, whether from you, family or friends.  Vent your emotions outside the presence of your children.  Your paternity action will create a degree of trauma for them; do not increase that trauma or cause emotional distress to your children needlessly.  This office will not represent you if you manipulate or unfairly make the children pawns.

        2.  The below listed complaints are frequently heard by attorneys. In El Paso County, an order to parents was likely entered when you filed your case.  If the opposing parent is engaging in any of the following behaviors, refer to that Order.  You will likely be able to stop this manipulation by contempt of court (jail) proceedings.

a.  Children must choose between the two of you.

b.  Attempting to turn the children against you by discussing your shortcomings, i.e.: denigrating, demeaning or making derogatory statements about you or permitting family or friends to do so in the presence of the children.

c.  Failure to continue with scheduled activities or school work during parenting time - time being used as a vacation from responsibilities for the children.

d.  Children being involved in setting, negotiating or mediating parenting time.

e.  Children being questioned regarding your activities, new assets, expenditures or romances.

f.  Other parent or his / her significant other using illicit drugs during child care times.

g.  Children being forced to refer to step-parent or girlfriend / boyfriend as "mom" or "dad."

h.  Children being taken to a counselor or therapist without first obtaining the agreement of the residential parent.

i.  Other parent secreting or not informing you of his / her current address and phone.

j.  Discussion of the paternity case or issues of the case with your children, whether parental responsibility, parenting time, child support or other financial issues.

k.  Children being shown documents related to the case.

l.  Children being brought to court.

m.  "No show" or "late show" at agreed times for parenting time exchange.

n.  Spouse arguing with you at exchange for parenting time.

o.  Step-parent or boyfriend / girlfriend being part of the transportation or child-care process during parenting time... significant other sticking nose into your business

p.  Lack of adequate clothing for parenting time or being returned in poor condition.

q.  Driving with the children under the influence of alcohol, drugs or medication.

r.  Failure to use legally mandated child restraints in motor vehicles.

        3.   Children, even very young, may likely attempt to manipulate the parents.  Separation or litigation is a particularly fruitful time given the guilt most parents are experiencing... a child's radar senses this.  Agree with the other parent that if either hears a disturbing report, you will call to the other to inquire.  Agree neither will fly off the handle due to such an inquiry - a degree of unity remains necessary. Keep rules & discipline consistent. Understand children may attempt to manipulate, distort or extort. No-way... not my children... right.  Children need boundaries.

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Children - Attorney Appointments

        I ask that children not be brought to the office unless requested by the attorney.  Family law matters are sensitive and not appropriate for children; they may understand more than we expect.  Also, many children have short attention spans.  Matters to be discussed will be of importance to you; the distraction of caring for a child will likely decrease the productivity of our time together.  Please make arrangements for daycare. If care is not possible, I work from my home and toys are available.  It's simply not a plan to include children in paternity legal matters.

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Cohabitation with Opposing Parent

        Legally, you may cohabitate (live with) the opposing parent at all during the paternity action, including through the date final orders are entered. In practicality, it does not work. 

        1.  Living together will increase the emotional tension between you and the other parent.         

        2.  Domestic violence criminal charges may be brought on allegation alone with no supporting evidence.  Hello gray-bar hotel, no room service 'eh?  Refer to the any of the below links for additional information regarding potential domestic violence criminal charges or restraining orders.  Refer to the below links for additional information.
            a.   DOMESTIC VIOLENCE Information - information pertaining to defense of domestic violence charges
            b.   DOMESTIC VIOLENCE Criminal Charges - frequently charged domestic violence crimes
            c.   DOMESTIC VIOLENCE Sentencing Summary
            d.   CIVIL DOMESTIC ABUSE RESTRAINING ORDERS

        3.  One of you must move out, or plan on disagreements.  To that end, the person who moves out will need at least first month's rent plus security deposit, maybe last month's rent, staple groceries, adequate furniture / household goods and transportation.  Plan on the expense, regardless of who actually moves.  This applies even if your partner has been living in your home which you own separately.  Financial arrangements for multiple residences are nominal in relation to criminal defense or restraining order defense, not to mention long term consequences of the paper trail left by such an allegation.  Throwing out your ex-partner with no money and nowhere to go is not wonderful, nor will it favorably impress a juvenile magistrate.  Use common sense - don't make or tolerate that demand or threat.

        4.  In paternity cases, the parties have usually separated long ago or perhaps never cohabitated.  It has been my experience that if the parties are cohabitating when seeking counsel, they are attempting to establish a lawful family unit for purpose of school, insurance, military benefits or some other legitimate purpose.  If however the parties are in dispute, cohabitation during the pendency of the paternity lawsuit is as bad an idea as in divorce cases.

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Negotiations

        1.  Conduct all negotiations with the opposing parent in a park or restaurant which is a public setting but offers a degree of privacy.  Never discuss an emotional issue in the privacy of your home or a totally secluded area.  Argument, possible assault or injury, criminal charges and injunction will be avoided.

        2.  If you and the opposing parent can not reach agreements in any particular discussion, recognize that you will not be able to agree and discuss the matter in 2 or 3 days when emotions cool down.  Do not continue to press a matter when you know you can't agree.  A court hearing may be necessary; courts decide fairly. Use court hearings for legitimate disagreement matters and avoid court battles ov