dissenting.
The majority holds that the respondents, because of their physical possession of C.C.R.S. and despite the petitioner’s revocation of consent to physical custody, acquired standing to petition a court for custody under section 14-10-123, 6B C.R.S. (1987), of the Uniform ' Dissolution of Marriage Act (UDMA). Maj. op. at 249, 254. The majority thus allows disappointed prospective adoptive parents to circumvent the relinquishment and adoption provisions of the Colorado Children’s Code and pursue custody under the UDMA. The majority also holds that a biological parent does not have a fundamental constitutional right to physical custody of her child. Maj. op. at 255-256. Therefore, a trial court is not required to find a parent unfit before awarding custody to a non-parent. Maj. op. at 258. According to the majority, a trial court need only consider the best interests of the child when making custody determinations between a parent and a non-parent. Id. Because I believe that the majority has created an avenue by which prospective adoptive parents may circumvent the stringent statutory requirements for relinquishment and adoption through its interpretation of the standing.requirement of the UDMA, I dissent. I also dissent because I believe that parents have a fundamental constitutional right to the care and custody of their children. Because of this right, a court should not be able to deprive parents of the custody of their children and award custody to a non-parent without a finding that the parent is unfit at least in absence of a compelling reason. I adopt the reasoning stated in the dissent written by Judge Taubman of the Colorado Court of Appeals in the decision that we now review. See In re the Custody of C.C.R.S., 872 P.2d 1337, 1345-55 (Colo.App.1993) (Taubman, J., dissenting). Because Judge Taubman comprehensively and persuasively addresses the majority’s contentions in this ease, I will not attempt to recapitulate the arguments here. I also join the dissent written by Justice Scott. I write only to emphasize some of the constitutional, practical, and policy reasons for my disagreement with the majority.
First, the majority holds that the respondents have standing under section 14-10-123, 6B C.R.S. (1987), because they had physical custody of C.C.R.S. The majority defines the term physical custody as used in sections 14r-10-123(l)(b) and (c) to mean physical possession. Maj. op. at 253. This definition is excessively broad and creates an opportunity for abuse by unscrupulous custody seekers. This definition denies parents any necessary role in determining who will acquire physical custody of their children or what scope that custody might take. See 872 P.2d at 1349 (Taubman, J., dissenting). The definition also does not include consideration of the parent’s intent in leaving the child in another’s care. Under the majority’s definition any caretaker, no matter how slight the parent’s grant of authority, may gain physical custody of the child and have standing to petition for permanent custody. For example, a parent who leaves a child with a babysitter for a week while on vacation in no way intends to relinquish “physical custody” to the baby-sitter within the meaning of section 14-10-123(1). Yet under the majority’s definition the baby-sitter could petition the court for a permanent custody hearing. While this may seem implausible, one need only look to other jurisdictions to find parents threatened with custody proceedings after temporarily entrusting their children to another’s care. See Henderson v. Henderson, 174 Mont. 1, 568 P.2d 177 (1977) (aunt who picked up child while child was being cared for by babysitter brought suit for guardianship); In the Matter of McCuan, 176 Ill.App.3d 421, 125 Ill.Dec. 923, 531 N.E.2d 102 (Ct.1988) (grandparents petitioned for custody after mother placed children in their care for short period of time). The majority’s definition provides courts with no basis to distinguish between *260those to whom a parent makes a limited request for help in caring for a child, those to whom a parent has completely abandoned the child, and kidnappers for purposes of standing to petition for custody. The legislature could not have intended such a result.
Second, the majority by allowing non-parents after a failed relinquishment and adoption easily to petition for custody under the UDMA eviscerates the stringent procedures and policies underlying the Colorado parental rights relinquishment statute delineated in Article 5, part 1, of the Colorado Children’s Code. See 872 P.2d at 1350-1352 (Taubman, J., dissenting).27 The purpose of the relinquishment statute is “to promote the integrity and finality of adoptions to ensure that children placed in adoptive placements will be raised in stable, loving, and permanent families.” § 19-5-100.2, 8B C.R.S. (1994 Supp.). The legislature also intended to protect children from the trauma of being uprooted from adoptive placements. Id. Section 19 — 5—103(l)(a), 8B C.R.S. (1994 Supp.), facilitates this policy by requiring parents who wish to relinquish their child to undergo counseling from the county department of social services. In addition, section 19-5-103(2), 8B C.R.S. (1994 Supp.), prohibits courts from terminating the parent-child legal relationship until the court is satisfied that the parent-has been counseled. These statutes ensure that parents will not relinquish their parental rights without an understanding of the grave and serious nature of the decision. After counseling, a parent is less likely to make a hasty decision that will be regretted later. Parents fully aware of the consequences of their actions would be less likely to bring a suit or disrupt their children’s new relationship with adoptive families. The facts of this case demonstrate the necessity for stringent adherence to the requirements of the relinquishment statute. The respondents did not follow the proper procedures for relinquishment and adoption of C.C.R.S.. The petitioner did not have counseling and was not fully advised of her rights. Perhaps because of this lack of counseling, the petitioner made an ill-informed decision that she later regretted. This law suit resulted and the lives of two families have been in turbulence for over four and a half years.
By allowing disappointed prospective adoptive parents to petition for custody under the UDMA, the majority creates a legal loophole in the relinquishment and adoption statutory framework. Disappointed prospective adoptive parents now have the opportunity to bring extensive litigation in an effort to gain custody of a child with whom they do not have a legally cognizable relationship. The majority thus creates a way for persons seeking to adopt to circumvent the requirements of the relinquishment and adoption statutes by merely seeking physical custody of a child. Under this scheme, biological parents will not be afforded the proper counseling necessary to make an informed choice. In addition, despite non-compliance with the statutory requirements, prospective adoptive parents are assured of the chance to retain physical custody. Moreover, once non-parents have physical custody of a child, there may be little a biological parent can do to regain custody. Trial courts utilizing the best interests of the child standard are often reluctant to remove a child from a home once the child has begun to develop psychological attachment to the family. The majority’s creation of this option for disappointed prospective adoptive parents to pursue custody under the UDMA undermines the legislature’s intent in crafting the relinquishment scheme to provide stable unions by requiring informed consent.
The present case demonstrates the problems with allowing this kind of circumvention of the Children’s Code. The respondents were not entitled to adopt C.C.R.S. because *261of their failure to comply -with the statutory requirements of the Children’s Code. In addition, as part of their agreement with the petitioner, the respondents agreed to wait a year from the time of the child’s birth before instituting formal relinquishment and adoption proceedings. They did so apparently in order to ensure that a court would place guardianship of C.C.R.S. with them, rather than with the department of social services, after the petitioner relinquished parental rights. See § 19-5-104(l)(d), 8B C.R.S. (1994 Supp.). The respondents should have been aware of the inherent risk in this agreement that the petitioner could change her mind regarding relinquishment of parental rights. During this year the respondents had no legal right to custody of the child without the petitioner’s consent. Yet, when the petitioner revoked her consent, as she had a right to do, the respondents instead of returning the child to its mother applied for custody under section 14-10-123 of the UDMA. The petitioner is now being denied her right to custody of her child despite the trial court’s explicit finding that she will be a fit and proper parent. The majority’s decision allows the respondents to circumvent the requirements of the Children’s Code and maintain custody of the child of another.
The majority further undermines the legislature’s intent to create stable adoptive families by leaving the two families in this case in legal flux. See 872 P.2d at 1351 (Taubman, J., dissenting). In this case, the respondents have physical custody of the child but are not able to adopt. Furthermore, the respondents must live with the possibility that eus^ tody could be altered in the future. Maj. op. at 256. The petitioner, on the other hand, is deprived of the opportunity to nurture and rear her child on a daily basis. The distance between her and her child is great and the cost for her to travel to see the child prohibitive. Her parental rights seem illusory at best, yet she is burdened by the legal responsibilities of parenthood. Moreover, the court will have continuing involvement in the lives of these two families through its role in monitoring visitation and other issues of conflict. Far from creating a stable familial structure for the child, the majority’s decision leaves these families with only a temporary solution and little peace of mind.
Third, the majority holds that a trial court may grant physical custody of a child to a non-parent without finding that the parent is unfit. The majority holds that the best interests of the child standard should prevail in a custody contest between a parent and a non-parent. Maj. op. at 258. Because I believe that the opportunity to nurture and care for one’s child on a daily basis that physical custody provides is central to providing parental care, I believe parents have a fundamental constitutional interest in the physical custody of their children. See 872 P.2d at 1352-55 (Taubman, J., dissenting). The United States Supreme Court has recognized that parents have a constitutionally protected liberty interest in the “care, custody, and management of their child.” Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982). The United States Supreme Court has acknowledged that these rights do not attach by the fact of mere biology alone. Rather, biology gives one the opportunity to demonstrate a commitment to parenthood by coming forward to participate in the rearing of one’s child. Lehr v. Robertson, 463 U.S. 248, 260-263, 103 S.Ct. 2985, 2992-94, 77 L.Ed.2d 614 (1983). Once a biological parent has undertaken this commitment, the parent establishes an interest that cannot be disturbed without due process of law. To this end the Supreme Court has required states to establish by clear and convincing evidence that constitutionally sufficient grounds for termination exist prior to terminating parental rights. Santosky, 455 U.S. at 769, 102 S.Ct. at 1403. Although in this case the petitioner’s parental rights have not been terminated, the petitioner’s opportunity to develop a nurturing relationship with her child has been severely curtailed. Because this nurturing relationship approaches the importance ascribed to an individual’s parental rights, the same standard should apply in custody proceedings between parents and non-parents as in actual termination proceedings. Thus, a trial court should be required to find a parent unfit prior to severing custodial rights in favor of a non-parent.
*262In Lehr v. Robertson the United States Supreme Court recognized that:
[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in ‘promot[ing] a way of life’ through the instruction of children.
463 U.S. at 261, 103 S.Ct. at 2993 (quoting Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 844, 97 S.Ct. 2094, 2109-10, 53 L.Ed.2d 14 (1977)). This bond continually developing and maturing on a daily basis is the essence of the parent child relationship. The best interests test in the context of a custody dispute between a parent and a non-parent does not adequately protect this bond. As the Supreme Court stated in Quilloin v. Walcott:
We have little doubt that the Due Process Clause would be offended ‘[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.’
434 U.S. 246, 255, 98 S.Ct. 549, 554 (1978) (quoting Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. at 862-863, 97 S.Ct. at 2119 (Stewart, J., concurring)). The best interests test can all too easily disadvantage the poor, the uneducated, and the otherwise disadvantaged individuals. In our society, we do not auction children off to those who can provide the best amenities and a more traditional household. We recognize the right of all individuals to procreate and to have a family. Absent compelling reasons, this parental right should be disturbed in favor of a non-parent only upon a finding that the parent is unfit.
The majority states that the Supreme Court cases dealing with parental rights established only procedural protections in termination proceedings and did not establish any substantive right to raise a child. Maj. op. at 256. The procedural protections established by the Supreme Court are not an end in themselves. They protect the fundamental interests that parents have in the care, custody, and management of their children. The ties that bind a parent and child are developed from the mutual efforts to love and support one another and the intimacy developed from common experience. The opportunity to develop and nurture these ties should not be denied without the utmost justification. Therefore, I would hold that parents have a fundamental interest in the physical custody of their children. This interest should not be disturbed in favor of a non-parent absent compelling reasons without a finding that the parent is unfit.28
For all the reasons so well expressed by Judge Taubman in his dissenting opinion in the Colorado Court of Appeals, I respectfully dissent.
KIRSHBAUM and SCOTT, JJ., join in this dissent.
. The legislature has also devised an extensive legislative scheme for protecting children from abuse and neglect and when necessary involuntarily terminating parental rights under the Dependency and Neglect Statute of the Colorado Children's Code. See Colorado Children's Code, Article 3, 8B C.R.S. (1994 Supp.). This statutory scheme fosters the dual goals of preserving the stability of families while ensuring the safety and protection of children. § 19-3-100.5, 8B C.R.S. (1994 Supp.). Section 19-3-604, 8B C.R.S. (1994 Supp.), sets out specific criteria for courts to apply when determining whether to terminate a parent-child legal relationship after a child has been adjudicated dependent or neglected.
. See supra, at 248 n. 1.