In re Marriage of DePalma
176 P.3d 829 (Col. Ct. App. 2007)

Facts:

  • Father, a pilot in the Air Force, and mother were the parents of two children.
  • After their divorce, in May 2002, they agreed to a parenting plan – among other things, the children would be in father’s care two evenings a week and every other weekend.
  • Father remarried in 2004.
  • In January of 2006, he was facing deployment to Iraq.
  • Before he left, he requested permission to allow the stepmother to care for parties’ children during father’s usual allotted time, while he was deployed in the military overseas.
  • He asserted that this would be in the children’s best interests because it would allow them to maintain their normal schedule and their bonded relationship with stepmother and their stepbrother.
  • Mother wasn’t having this.

History:

  • The trial court ordered that the children should be in the care of stepmother during father’s parenting time as he had requested.
    • The court determined that father could decide to have stepmother care for the children during his parenting time and that in doing so, he was presumed to be acting in the best interests of the children.
  • Mother appealed, arguing:
  1. The court failed to accord her the presumption that she had the first and prior right to parenting time of the children.
  2. The court violated her constitutional right to the care, custody, and control of her children.
  3. The stepmother should have been required to petition for parenting time.
  4. The court failed to make specific findings on the best interests of children.

Holding:
Affirmed.

Reasoning:
(1) The trial court treated this matter as a dispute between two fit parents rather than a dispute between a nonparent seeking parenting time and a parent opposing it. Thus, the presumption was never implicated.
(2) The orders entered by the court did not grant the stepmother any rights at all. In addition, stepmother had no right to make decisions for the children.
(3) Stepmother did not seek parental rights, and father did not ask that such rights be extended to her.
(4) The trial court was not required to make specific findings on the best interests of children because mother did not dispute that it was in the children’s best interests to maintain a relationship with their stepmother and stepbrother, and she did not contend that the children’s visits with them were harmful.

Looks like one big loophole…Hard not to agree with the mother that that father was impermissibly attempting to establish parental rights for his new wife that the new wife could not have obtained in her own right.

Rule: Presumption that a fit parent acts in the best interests of children applies to a father as well as a mother in a dispute over whether children could be cared for by a stepmother during a father’s usual parenting time schedule while a father is deployed overseas in the military.