2021 Colorado Code
Title 19 - Children's Code
Article 4 - Uniform Parentage Act
§ 19-4-113. Evidence Relating to Paternity

1. Evidence relating to paternity may include:
   1. Evidence of sexual intercourse between the mother and alleged father at any possible time of conception;
   2. An expert's opinion concerning the statistical probability of the alleged father's paternity based upon the duration of the mother's pregnancy;
   3. Genetic test results, weighted in accordance with evidence, if available, of the statistical probability of the alleged father's paternity;
   4. Medical or anthropological evidence relating to the alleged father's paternity of the child based on tests performed by experts. If a man has been identified as a possible father of the child, the court may, and upon request of a party shall, require the child, the mother, and the man to submit to appropriate tests; and
   5. All other evidence relevant to the issue of paternity of the child.

2. In any action brought pursuant to article 13 or 13.5 of title 26, C.R.S., the parties shall be required to use the laboratory designated by the delegate child support enforcement unit for genetic tests or other tests of inherited characteristics. Any subsequent test or other tests shall be determined by the court as provided in section 13-25-126, C.R.S.

History. Source: L. 87: Entire title R&RE, p. 796, § 1, effective October 1. L. 92: (2) added, p. 183, § 1, effective August 1. L. 97: (1)(c) amended, p. 562, § 9, effective July 1.

This section was contained in a title that was repealed and reenacted in 1987.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 19-6-113 as said section existed in 1986, the year prior to the repeal and reenactment of this title.

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

Common-law rule of testimony of parties. The common-law rule prohibiting a husband or wife from testifying to nonaccess in filiation cases first arose in the middle of the 18th century. Colorado adopted the common law of England as it existed prior to the announcement of that rule. Vasquez v. Esquibel, 141 Colo. 5 , 346 P.2d 293 (1959).

There is a presumption of legitimacy of children born to a married woman. Vasquez v. Esquibel, 141 Colo. 5 , 346 P.2d 293 (1959).

Such presumption may be overcome by evidence of nonaccess of the husband during the period when conception occurred, and it is error to reject such evidence in an action to establish paternity of a child. Vasquez v. Esquibel, 141 Colo. 5 , 346 P.2d 293 (1959).

Burden of proof. If the presumption of legitimacy of children born to a married woman is overcome, it would still be incumbent on a petitioner to establish to the satisfaction of a trial court that a respondent was the father of a child, but he cannot rely on the outmoded and archaic conclusiveness of a presumption in the light of facts which a petitioner offers to prove. Vasquez v. Esquibel, 141 Colo. 5 , 346 P.2d 293 (1959).

Preponderance of proof required. The trial court's instruction to the effect that petitioner must prove paternity by a preponderance of the evidence, rather than by clear and convincing evidence, correctly stated the law. McCoy v. People in Interest of Minor Child, 165 Colo. 407 , 439 P.2d 347 (1968).

Prima facie case established. In a proceeding to determine paternity of a child, a petitioner's testimony of acts of intercourse with respondent and her pregnancy following and birth of the child within the permissible period is sufficient to establish a prima facie case and require submission of the issues to a jury. Medina v. Gonzales, 141 Colo. 118 , 347 P.2d 138 (1959).

Evidence of specific resemblance is probative of paternity and should be admitted, but only when presented by a qualified expert witness who relates to the jury those characteristics which bear on paternity. People in Interest of R.D.S., 183 Colo. 89 , 514 P.2d 772 (1973).

Scientific foundation for evidence of specific resemblance. Unlike evidence of general resemblance, there is a firm scientific foundation for inferring parentage from the existence of evidence of specific resemblance. People in Interest of R.D.S., 183 Colo. 89 , 514 P.2d 772 (1973).

This section is sufficiently broad to order the husband, who was the presumed father, to submit to blood tests. People in Interest of M.P.R., 723 P.2d 743 (Colo. App. 1986).

Human leukocyte antigen test 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).

Exhibition of child is discretionary. In a paternity action, the question of whether the child is to be exhibited before the trier of fact is a discretionary matter on the part of the trial court, and its determination will be upheld on review in the absence of an abuse of that discretion. In re People in Interest of R.D.S., 32 Colo. App. 26, 507 P.2d 481, aff'd, 183 Colo. 89 , 514 P.2d 772 (1973).

Refusal to allow such exhibition upheld. Where the court ruled in a paternity action that exhibition of the child would have been of no probative value, and appellant made no offer of proof and advanced no argument that could have been a basis for the reviewing court to determine that the trial court was in error, and where the existence of the child was not in dispute, and ample evidence was presented to support a verdict for or against either party, there was no abuse of discretion in the court's ruling. In re People in Interest of R.D.S., 32 Colo. App. 26, 507 P.2d 481, aff'd, 183 Colo. 89 , 514 P.2d 772 (1973).

Exhibition of child for purpose of showing general resemblance denies right to cross-examination. Exhibition of a child to the jury in a paternity action for the purpose of showing general resemblance without expert testimony effectively denies the respondent the right of cross-examination, because the mere exhibition of a child without comment leaves a jury with the uncontroverted inference of similarities between such child and the alleged father. People in Interest of R.D.S., 183 Colo. 89 , 514 P.2d 772 (1973).

And is of questionable probative value and irrelevant. Because the probative force of evidence of general resemblance is questionable, yet gives rise to the conflicting interest of undue jury sympathy, prejudice, and confusion, exhibition of a child to jury, when offered to show paternity by way of general resemblance is irrelevant as a matter of law. People in Interest of R.D.S., 183 Colo. 89 , 514 P.2d 772 (1973).

No statutory basis for guardian ad litem obtaining genetic testing in a paternity proceeding at the expense of the department of social services or a county to provide a basis for diagnosing future problems that a minor child may encounter in later years. Figueroa v. Juvenile Court, 197 Colo. 510 , 595 P.2d 223 (1979).