FMLA Adoption Leave in Colorado
19-5-211. Legal effects of final decree.
Statute text
(1) After the entry of a final decree of adoption, the person adopted shall be, to all intents and purposes, the child of the petitioner. He shall be entitled to all the rights and privileges and be subject to all the obligations of a child born in lawful wedlock to the petitioner.
(1.5) An employer who permits paternity or maternity time off for biological parents following the birth of a child shall, upon request, make such time off available for individuals adopting a child. If the employer has established a policy providing time off for biological parents, that period of time shall be the minimum period of leave available for adoptive parents. Requests for additional leave due to the adoption of an ill child or a child with a disability shall be considered on the same basis as comparable cases of such complications accompanying the birth of such a child to an employee or employee’s spouse. Any other benefits provided by the employer, such as job guarantee or pay, shall be available to both adoptive and biological parents on an equal basis. An employer shall not penalize an employee for exercising the rights provided by this subsection (1.5). The provisions of this subsection (1.5) shall not apply to an adoption by the spouse of a custodial parent or to a second-parent adoption.
(2) The parents shall be divested of all legal rights and obligations with respect to the child, and the adopted child shall be free from all legal obligations of obedience and maintenance with respect to the parents.
(2.5) The child shall be eligible for enrollment and coverage by any medical or dental insurance held by the prospective adoptive parents if, and on such a basis as, such coverage would be available to a child naturally born to the prospective adoptive parents.
(3) Nothing in this part 2 shall be construed to divest any natural parent or child of any legal right or obligation where the adopting parent is a stepparent and is married to said natural parent.
History
Source: L. 87: Entire title R&RE, p. 810, 1, effective October 1. L. 88: (1.5) added, p. 759, 1, effective April 13. L. 93: (1.5) amended, p. 1638, 26, effective July 1. L. 97: (2.5) added, p. 1165, 11, effective July 1. L. 99: (2) amended, p. 1065, 8, effective June 1. L. 2007: (1.5) amended, p. 838, 4, effective August 3.
Annotations
Editor’s note: This section was contained in a title that was repealed and reenacted in 1987. Provisions of this section, as it existed in 1987, are similar to those contained in 19-4-113 as said section existed in 1986, the year prior to the repeal and reenactment of this title.
ANNOTATION
Analysis
I. General Consideration.
II. Inheritability of Adopted Child.
Law reviews. For article, “Ten Years of Domestic Relations in Colorado — 1940-1950”, see 27 Dicta 399 (1950). For article, “The 1951 Amendments to the Relinquishment and Adoption Laws”, see 28 Dicta 227 (1951). For case comment, “Adoptive Sibling Marriage in Colorado: Israel v. Allen (195 Colo. 263, 577 P.2d 762 (1978))”, see 51 U. Colo. L. Rev. 135 (1979). For article, “Securing the Nonparent’s Place in a Child’s Life Through Adoption and Adoption Alternatives”, see 37 Colo. Law. 27 (October 2008).
Annotator’s note. The following annotations include cases decided under former provisions similar to this section.
Purpose of section. The legislative intent is to make the law affecting adopted children in respect to equality of inheritance and parental duties in pari materia with that affecting natural children. Quintrall v. Goldsmith, 134 Colo. 410, 306 P.2d 246 (1957).
The general assembly intended to give an adopted child the legal status of a lineal descendant of the adopting parent or parents, and a child by adoption has the same legal status as a natural child. People ex rel. Dunbar v. White, 144 Colo. 212, 355 P.2d 963 (1960); Wright v. Wysowatcky, 147 Colo. 317, 363 P.2d 1046 (1961); People v. Estate of Murphy, 29 Colo. App. 195, 481 P.2d 420 (1971).
In passing the adoption statutes, the general assembly intended to place the adopted child in the family in the same position as a natural child. In re Ashlock, 629 P.2d 1108 (Colo. App. 1981).
Section liberally construed. While courts were formerly inclined to regard adoption statutes as in derogation of the common law and therefore to be strictly construed, the humanitarian purposes of such statutes came to be recognized, and courts afford them a more liberal construction. Wright v. Wysowatcky, 147 Colo. 317, 363 P.2d 1046 (1961).
Definition of adoption. Adoption has been defined as the act by which relations of paternity and affiliation are recognized as legally existing between persons not so related by nature. Graham v. Francis, 83 Colo. 346, 265 P. 690 (1928).
Adoption, in legal contemplation, is an act by which the parties thereto establish the relationship of parent and child between persons not so related by nature, and which, in many respects, severs the natural relations existing between the child and its parents, although in a narrower sense it is restricted to the act of the person taking the child. Johnson v. Black, 137 Colo. 119, 322 P.2d 99 (1958).
Change of custody follows from valid adoption decree. One of the legal effects of an adoption is to divest the natural parents of their custodial rights and to grant such rights to the adoptive parents. This change of custody follows as a natural consequence of a valid adoption decree. Johnson v. Black, 137 Colo. 119, 322 P.2d 99 (1958).
The contesting natural parent is by a decree of adoption divested of all parental rights and obligations. Clerkin v. Geisendorfer, 137 Colo. 139, 323 P.2d 633 (1958).
The adoption statute deprives the natural parents of their rights and obligations to their natural children after adoption. People v. Estate of Murphy, 29 Colo. App. 195, 481 P.2d 420 (1971).
After decree of adoption, natural parents are under no legal obligation to support child. Truitt v. Indus. Comm’n, 31 Colo. App. 166, 499 P.2d 621 (1972).
General rule as reflected in this section is that an adoption decree terminates the parental rights and duties of child’s natural parents and grants those rights and duties to adoptive parents. Singular exception to general rule as set forth in section applies only in cases when adopting parent is married to natural parent. Thus, express statements of limitation must be read to exclude from adoption statute’s reach all other possible exceptions not listed. Adoption of T.K.J., 931 P.2d 488 (Colo. App. 1996).
A stepparent adoption proceeding, like all other adoption proceedings, is concluded by a final decree of adoption. It is only when the final decree is entered that a natural parent is divested of all rights and obligations with respect to the child. People in Interest of S.M.O., 931 P.2d 572 (Colo. App. 1996).
Husband’s obligation to his adopted children rests upon him in no different way than if the children were of his own blood. In re Ashlock, 629 P.2d 1108 (Colo. App. 1981).
Parent was not divested of child support obligation based on payments that accrued prior to a final adoption decree. In addition, father was denied equitable relief from child support obligation where record did not reflect evidence of representations upon which the father relied or that an evidentiary hearing was requested. In re Murray, 790 P.2d 868 (Colo. App. 1989).
II. INHERITABILITY OF ADOPTED CHILD.
Law reviews. For note, “The Right of Inheritance of Adopted Children in Colorado”, see 23 Rocky Mt. L. Rev. 191 (1950). For note, “Adoption and Intestacy in Colorado”, see 26 Rocky Mt. L. Rev. 65 (1953).
Inheritance is a statutory and not a vested right. Quintrall v. Goldsmith, 134 Colo. 410, 306 P.2d 246 (1957).
A legally adopted child is to all intents and purposes the child and legal heir of the person so adopting him or her, entitled to all the rights and privileges, and subject to all the obligations of a child of such person begotten in lawful wedlock; but upon the decease of such person and the subsequent decease of such adopted child without issue, the property of such adopting parent shall descend to his or her next of kin, and not to the next of kin of such adopted child. Quintrall v. Goldsmith, 134 Colo. 410, 306 P.2d 246 (1957).
This section clearly declares a child by adoption to have the same legal status as a natural child born to the adopting parent or parents. People ex rel. Dunbar v. White, 144 Colo. 212, 355 P.2d 963 (1960); Wright v. Wysowatcky, 147 Colo. 317, 363 P.2d 1046 (1961).
After adoption the adopted child becomes the heir of his adoptive parents as though born to them in lawful wedlock, and his natural parents are cut off and neither they nor their lineage may inherit from the adopted child. As to his adoptive parents, the child becomes subject to all rights and obligations of a child born in lawful wedlock. The relation thus established can be nothing less than that of parent and child. To say that such status is less or different from the parent and child relationship would do violence to the clear legislative intent to create unity in the family. Wright v. Wysowatcky, 147 Colo. 317, 363 P.2d 1046 (1961).
Section confers ordinary rights of inheritance. The laws permitting the adoption of children confer on them simply the ordinary rights of inheritance. In re Schmidt’s Will, 85 Colo. 28, 273 P. 21 (1928).
Legally adopted children are entitled to inherit as fully as children of the foster parents begotten in lawful wedlock. Quintrall v. Goldsmith, 134 Colo. 410, 306 P.2d 246 (1957).
It does not affect the power of the adoptive parent to dispose of his property by will, but the adoptive parent may deprive himself of the power thus to dispose of his property by a contract binding him to give the adopted child a certain share of his property. In re Schmidt’s Will, 85 Colo. 28, 273 P. 21 (1928).
A testator cannot by will disinherit an adopted child contrary to the specific prohibition of the decree of adoption. Neville v. Bracher, 94 Colo. 550, 31 P.2d 911 (1934).
An agreement not to disinherit is supported by the consideration of the acquirement by the adoptive parents of the child’s love and affection, her filial obligations to them, a change in domestic relationship, the consent of the surviving natural parent to forever relinquish his paternal rights, and the child’s forfeiture of her rights which she enjoyed before the adoption proceedings. In re Schmidt’s Will, 85 Colo. 28, 273 P. 21 (1928).
The right of inheritance conferred by statute is a reciprocal one, because it depends upon a relation that is created by the adoption under our statute. The adopted child inherits from the adoptive parent. The relation of parent and child having been thus created, the right of the adoptive parent to inherit is the same as was or would have been that of the natural parent. Wright v. Wysowatcky, 147 Colo. 317, 363 P.2d 1046 (1961).
Adoption decree which incorporated statutory language similar to language in this section terminated only the adopted child’s obligations to her natural father but not her right to inherit from him; therefore, the child was the heir of her intestate natural father regardless of the validity of her adoption. Matter of Estate of Bomareto, 757 P.2d 1135 (Colo. App. 1988).
A twice adopted child cannot inherit from his first adoptive parents unless such parents have died prior to the second adoption or unless he is readopted by his own natural parents where there is a second adoption by strangers. A child cannot logically be the adopted child of more than one set of adoptive parents at a time. Quintrall v. Goldsmith, 134 Colo. 410, 306 P.2d 246 (1957).