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.

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.

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.

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).

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.

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).

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

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.

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