QUESTION PRESENTED
You have requested an opinion on whether a court's order granting the "Allocation
of Parental Rights and Responsibilities" to an aunt of the NH establishes legal guardianship
of a minor child under Colorado State law, in order to obtain a social security card
for the NH. You have also asked for any additional information regarding changes to
the guardianship terminology under Colorado law that would affect Enumeration or Representative
Payee requirements under the Social Security program.
Short Answer
We believe, based on the facts you presented, that, in the State of Colorado, a court's
order allocating parental rights and responsibilities to a relative, other than a
natural or adoptive parent, establishes custody for the purpose of obtaining a social
security card without an order of guardianship.
Facts
The information we were provided indicates that the Number Holder (NH) Ralph A. A~,
is a minor, and that on October 21, 2005, his aunt, Gladys S~, along with Bob S~,
David H~, and Stephanie H~ were granted an order allocating parental rights and responsibilities
by the District Court of Weld County, Colorado. David H~ and Stephanie H~ were also
designated the "residential custodians" of the NH. On May 15, 2006, Ms. S~ went to
the Agency's Greeley, Colorado field office requesting a duplicate social security
card for the NH. According to the information provided, Ms. S~ presented the field
office with the District Court's "Order granting Allocation of Parental Rights and
Responsibilities," to support her request. The field office had not seen such an order
before and was concerned that the court's order did not establish legal guardianship.
As such, the field office informed Ms. S~ that it could not honor her request.
Ms. S~ subsequently returned to the field office with the NH. At that time, the field
office honored the application.
Legal Analysis
Program Operation Manual System (POMS) § RM 00202.005 provides that a "proper applicant" for a social security (SSN) card is the person
who can apply for and receive an SSN card on his or her own behalf or on behalf of
another person. According to POMS § RM 00202.005, a court-appointed legal guardian (individual or an agency) always has priority over
any "other proper applicants."
Guardianship under Colorado law is that authority vested by court action to make major
decisions affecting a child, including, but not limited to:
The authority to consent to marriage, to enlistment in the armed forces, and to medical
or surgical treatment;
The authority to represent a child in legal actions and to make other decisions of
substantial legal significance concerning the child;
The authority to consent to the adoption of a child when the parent-child legal relationship
has been terminated by judicial decree;
The rights and responsibilities of legal custody when legal custody has not been vested
in another person, agency, or institution.
Colo. Rev. Stat. Ann. § 19-1-103(60). There is no evidence that Ms. S~ is a court-appointed
guardian for the NH.
However, individuals other than legal guardians may apply on behalf of other persons.
"Other proper applicants" who may request a duplicate SSN card, pursuant to POMS §
RM 00202.005, are listed in priority order below:
A parent (natural, adoptive, or step) of the child;
Administrator of the individual's (adult or child) estate;
A brother, sister, grandparent, aunt, or uncle with custody of a child;
A state welfare agency if it has legal custody of the individual (adult or child);
An individual who applies on behalf of another adult who can establish relationship
and responsibility.
Id. If the applicant, other than the natural or adoptive parent, has custody, evidence
is needed to establish relationship and custody and/or responsibility. Id. The POMS provides that "a court document showing the applicant has custody is sufficient
to establish relationship and custody and/or responsibility." Id.
Effective February 1, 1999, the Colorado General Assembly enacted a statutory framework
in which the terms "custody," "custodian," and "custodial" were abandoned and changed
to "parental responsibilities." See Colo. Rev. Stat. Ann. § 14-10-103(b); see also In re the Marriage of Roosa, 89 P.3d 524, 527 (Colo. App. 2004). The legislative purpose for changing the terms
related to "custody" was to provide the resolution of dispute subsequent to the dissolution
of marriages in an amicable and fair manner. See Colo. Rev. Stat. § 14-10-104.5. The Colorado general assembly recognized that, in
most cases, it was in the best interests of the children to have relationship with
both parents and for parents to a have a relationship with the children. Id.
Under the 1999 amendment, the term "parental responsibilities" encompasses both "decision-making
responsibilities" and "parenting time." See Colo. Rev. Stat. Ann. § 14-10-124(1.5). The allocation of "decision-making responsibilities"
contemplates decisions regarding medical issues (see Colo. Rev. Stat. Ann. § 14-10-124(6)), health care, education, and religion (see id. at § 14-10-130(1)). In determining decision-making responsibility, the court may
allocate the decision-making responsibilities mutually between parties, individually,
or any combination thereof. See id. at § 14-10-124(b). Under Colorado law, the term "custody" is interchangeable with
the term "parental responsibilities." Id. at § 14-10-103(4). As such, the Court's "Order Granting Allocation of Parental Rights
and Responsibilities" was sufficient to establish custody in Ms. S~ as one of the
named individuals sharing decision making authority for the NH.
Recognizably, as indicated above, the Court's order specified that Ms. S~ "shared"
with others "decision-making authority concerning the child." We interpret this to
mean that all major decisions regarding the health, education, and general welfare
of the child were to be made jointly between the parties, and that no individual had
sole authority. See In re Marriage of Whitley, 775 P.2d 95, 96 (Colo. App. 1989). Since Ms. S~ shared in the "decision-making"
authority concerning the NH, we believe that this satisfies the "custody and/or responsibility"
requirement mandated by POMS § RM 00202.005.
While we also recognize that David H~ and Stephanie H~ were designated the "residential
custodians" of the NH, this does not affect the rights granted to Ms. S~. "Residential
custody" and "physical custody" are terms relating to the residential or physical
placement of the child (including what was formerly known as visitation rights) now
appearing as "parenting time." See Colo. Rev. Stat. Ann. § 14-10-103(3); see also In re Marriage of Roosa, 89 P.3d at 527. The Parenting Time Enforcement Act provides the child with access
to the "parent with whom the child does not reside [with] the majority of the time."
N.A.H. V. S.L.S., 9 P.3d 354, 359 n.2 (Colo. 2000). Again, the fact that other individual had "physical
custody" of the NH did not affect Ms. S~'s right to make major decisions regarding
the welfare of the NH.
With regard to your second question, we found no amendments or changes to the term
"guardianship" under Colorado law. While the terms "custody," "custodian," and "custodial"
have been changed to parental responsibilities (including "parental responsibilities
and parenting time"), the term guardianship and its meaning have remained unchanged.
CONCLUSION
Accordingly, because the Ms. S~ is a relative (aunt) and was granted shared "parental
responsibilities," which is the same as joint legal custody in the State of Colorado,
she is a proper applicant for obtaining a SSN on behalf of the NH pursuant to POMS
§ RM 00202.005.
Very truly yours,
Deana R. E~-L~
Regional Chief Counsel
Carolyn C~
Assistant Regional Counsel