Notice

"Notice" is one of the most basic concepts in our legal system; it is the idea that action affecting an individual’s legal rights or claims can not be taken without an opportunity to be heard by the Court.

Yet, the notice requirement is overlooked by attorneys and pro se litigants alike with alarming frequency.

Failing to give notice to all persons required by statute is an all too common occurrence in the Probate Court, causing unnecessary frustration for both the Court and the litigants. When notice is improper, the Court must strike the hearing from the docket, and parties must reset their matter, delaying resolution of issues for weeks, even months. Parties’ frustrations are worsened by the fact that notice defects often go undetected until 1 or 2 days before the hearing when the law clerk reviews the file. To eliminate these frustrations, attorneys and pro se litigants can follow the legislature’s mandates regarding notice found in C.R.S. §§15-10-401, 15-14-207, 15-14-309 and 15-14-405.

The most common notice deficiencies seen in the Denver Probate Court involve failure to give notice to both parents of a minor or unmarried incapacitated person, failure to give notice to an incapacitated/protected person when it is thought that notice would be futile given the incapacitated/protected person’s medical condition or mental state, and failure to give notice to a minor age 13 or older.

Parental Notice Parental notice defects occur most frequently in Petitions for Approval of Personal Injury Settlements and Petitions to Appoint a Guardian or Conservator when one parent has been the primary caretaker/custodian of the minor for most of the minor’s life, and the other parent has not been part of the minor’s life. Unless parental rights have been terminated by Court Order, all living parents are entitled to notice of proceedings affecting the rights of their children even when they do not have custody or have not been seen or heard from in many years. It should be noted that although the Court may approve service by publication, the party wishing to publish notice must file a Motion to Serve Notice by Publication, identifying the efforts made to locate the absent parent, and the Court must approve the motion prior to publication. The Court must be convinced that all reasonable efforts were made to locate the absent parent, including such simple measures as calling information in the last known city where the parent resided, and contacting the parent’s friends and relatives. Parties should also consider using the internet to locate a person given the vast resources available on the world wide web.