Under the new law, confirmed by the Colorado Supreme Court today, a parental designation in a will which is not contested is honored, but, if one of the people entitled to contest a guardianship designation, including anyone who has had the custody and control of a child in the two months prior to the filing of a guardianship petitioner, regardless of the reason that this happened, then a judge will appoint a guardian strictly based upon a "best interest of the child standard."
The Colorado Supreme Court hedges just slightly saying (citations and textual references to statutes omitted, emphasis in the original):
Parental interests as to who should care for their minor children may nonetheless be a relevant factor to be considered in appointing a guardian under the best interest standard. A court may consider all relevant facts and circumstances to determine the best interests of the child. Hence, the best interest of the child standard does not preclude a court from considering the desires of the pertinent parties, including the wishes of the minor's parent as expressed through a testamentary appointment. Thus, a court may weigh such wishes keeping in mind the fluid and changing nature of interpersonal relationships and the frequency with which the will was reviewed after its election. However, the paramount consideration of the best interest of the child and a testamentary appointment must yield to this overriding concern when the court resolves a guardianship dispute subsequent to an objection by a person with care and custody of a minor. Accordingly, to appoint a guardian for a minor when a person with the care or custody of child objects to the testamentary appointment, the court shall appoint a guardian pursuant to the best interest of the child standard.
Let me be clear, the Colorado Supreme Court was not being activist in this decision and made it unanimously. It followed the text of the statute, although it does seem to miss the subtlety of a difference between making a decision in accordance with the best interests of the child, and making a decision unless it is contrary to the best interests of the child, viewing the two as essentially identical.
This is generally consistent with the philosophy of the child custody statute in Colorado, which also gives great deference to "possession" of a child, for example, giving a baby sitter who happens to have a child at the time a custody proceeding is commenced equal standing to a parent in a best interests of the child analysis. See Section 14-10-123(b) and 14-10-124, Colorado Revised Statutes. Indeed, it is well established in Colorado that legal paternity does not require blood ties, even in the absence of a formal adoption.
But, there is reason to wonder if a little more deference to paternal ties, and to parental wishes, rather than a pure best interests analysis in all cases, wouldn't be appropriate.