Emerging Trends - Gay Rights

STATUS OF GAY RIGHTS IN COLORADO

The issue of “gay rights” is one in which the courts and legislatures around the country are grappling with. Colorado, which is often at the forefront of national family law trends, is no exception. The following is a summary of some of the current areas where gay and lesbian issues have impacted Colorado family law.

Adoption

The legal adoption of children by gay and lesbian couples has been disallowed in Colorado since 1996. However, through the application of the Uniform Parentage Act by the State District Courts, Colorado has become more open to establishing joint parentage of children by same sex couples. In 1999, one case decision granted a lesbian couple full parental rights of their newborn child and both of their names were listed on the birth certificate. Since this case, the practice of naming both parents on the birth certificate has become more commonplace and has also been accepted by many judges. In response to this apparent emerging trend, however, the Colorado House of Representatives passed H.B. 1356 in 2002, which states that there cannot be two legal parents of the same sex. The bill was eventually rejected in the Senate Judiciary Committee; however, the issue will likely reemerge in future sessions of the legislature.

Custody and Visitation

In August 2001, the Colorado Court of Appeals ruled that parenting time in custody cases may not be restricted because of sexual orientation. The Court held that Colorado state law allows restrictions on parenting time only when a child’s physical, mental or emotional health is endangered. In a related, but interesting holding, the Court also found that a parent’s decision on religious training cannot be interfered with by another party or even the courts.

Surrogacy

Issues related to surrogacy may arise in situations where a gay or lesbian couple seeks to raise a child from birth. There are currently no laws addressing surrogacy arrangements in Colorado and the courts have yet to decide and report a case where a surrogacy contract was at issue. However, the Colorado Supreme Court decided a case in 1989 that held that a man who donates sperm to artificially inseminate a woman may have parental rights. In this case, the Court interpreted Colorado’s artificial insemination statute, holding that it did not preclude a sperm donor from asserting parental rights when the donor and unmarried recipient know each other and agree at the time of conception that the donor will be treated as the natural father. While not directly related to surrogacy, this case may provide some legal support for a biological father in a surrogacy arrangement where parental rights become disputed.

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