Grandparent’s Visitation & Custody Rights in Colorado

5.10.17

An Uphill Battle for Colorado Grandparents

Grandparents can play a very important role in the care and up-bringing of children. They can be a valuable resource to parents, stepping in for part-time or full-time care when a parent finds themselves stretched too thin or temporarily unable to care for their children. In an agreeable situation, Colorado does grant temporary rights to grandparents while they care for a grandchild. However, when the parties disagree, it can be an arduous up-hill battle for grandparents in the courtroom.

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As states are hesitant to interfere with a parent-child relationship, grandparent’s seeking legal intervention are viewed by courts with strict scrutiny. This is because parents have a constitutional right to make decisions for their children – and when parent’s exercise this right by choosing to limit their child’s contact with other family members, a court is presuming that they are acting in the child’s best interest. However, there are cases when a parent is not acting in a child’s best interest. The law acknowledges this fact and so provides legal routes for grandparents to alter visitation and/or custody of their grandchildren.

Rights concerning visitation

While Colorado does afford grandparents some rights to their grandchildren, it does not give grandparents an automatic right to visitation. If, for whatever reason, a grandparent finds themselves unable to see their grandchildren, the burden falls on them (grandparents) to prove in court that changing visitation would be in a child’s best interest. However, even if successful, parents can later seek to modify or terminate the order under the same reason.

Grandparent’s cannot file for visitation rights if:

  • The family is ‘intact’. Generally, this means that both parents and children live together.
  • The grandchild is adopted. The when the natural parents give up their legal claim of a child during an adoption, then the grandparent’s rights are also forfeited. Possible exceptions are if it is a stepparent adopting the child or if the child is being adopted due to death of one or both parents.
  • The related parent’s parental rights are revoked. If, for whatever reason, a biological parent legally revokes their parental rights, then the grandparent’s rights over that grandchild are also concurrently revoked.
  • If the family has had no previous family court rulings in Colorado. One such case law is D.C. and D.C. (Colorado appeals 2005) in which a court ruled that even though the family was not intact, the grandparents could not obtain visitation rights because there had been no prior family court actions in Colorado.
  • Seeking visitation for religious reasons. A court cannot grant visitation if it is based on a grandparent’s desire to, for example, take a grandchild to church. When this desire conflicts with a parent’s, a court views this as a violation of that parents right to determine what/if any religious upbringing is important.
  • The grandparent’s child (parent of the child) has died.
  • The child is in the legal custody of a non-biological parent. In instances where a child was removed by the state and placed into foster care, a grandparent can petition for visitation.

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Can file for visitation rights if:

  • The parents are legally separated or divorced. Colorado law dictates that unless the family has already been to family court, a grandparent cannot file for visitation. Hence, families that have already gone to court for divorce, annulment or legal separation.
  • The grandparent’s child (parent of the child) has died.
  • The child is in the legal custody of a non-biological parent. In instances where a child was removed by the state and placed into foster care, a grandparent can petition for visitation.

If a grandparent wishes to file for visitation, they will need to do so through their local district court. For example, if the child resides in El Paso County, Colorado, the grandparent would file in District Court located in Colorado Springs. The motion must include an affidavit that outlines the reasons and facts which support the motion. The parents must be notified and can file their own opposing affidavit. Whether or not the motion will go to a court hearing is up to either party, or left to the discretion of the court.

Under Colorado statute 19-1-117 great-grandparents, as well as grandparents have the legal right to pursue visitation.

Why an attorney?

Motions for visitation can only be filed once every two years. If your case is dismissed, then you will have to wait an additional two years before you can refile. This means you may lose valuable time with your grandchildren.

If the court finds that a motion lacks credible evidence then a court may order the filer to pay for the parent’s attorney fees.

Case Law and The Flexibility of Statue Interpretation

Law is dictated by statue (legislative rule) and legal precedent (aka case law or common law). While statutes are important for providing guidance, case law stands as an interpretation of the law and becomes an example of how future cases of a similar nature can be ruled. For example, when a judge makes a ruling on a new case where there is no legal precedent, then the judge will only interpret the statutory law; if a prior case exists then the judge will look at both statutory and common law when making a ruling.

In cases concerning grandparent rights, common law is extremely important. Colorado statutory law dictates that the “best interests of a child” are of paramount concern when deciding on grandparent’s rights over visitation and custody of grandchildren. However, the statute does not elaborate on what “best interests” are; hence it’s up to case law to help guide judges.

The supreme court case of Troxel v. Granville, 530 U.S. 57 (Colo. 2000) dealt grandparent’s rights a big blow in 2000. Many states, Colorado included, altered their statues to reflect the Supreme Court’s decision. At its most basic, Troxel v. Granville overturned a previous Washington statue that allowed anyone to sue for visitation at any time, so long that it was in the child’s best interest. Instead the court found that the statue violated the parent’s constitutional right, as upheld by the 14th constitutional amendment, to make decisions concerning the care of the child. Additionally, the court found the case to be an argument over visitation schedule and that the grandparents had failed to prove the parent to neither be unfit nor going against the best interests of the child.

What does this mean for Colorado grandparents? It means that courts have a presumption that parent’s decisions concerning the care of the children are, unless proved otherwise, in a child’s best interest. This gives parents an advantage in court. Grandparents are then left with the burden of proof, and unless they can obtain “clear and convincing” evidence to the contrary, they are unlikely to win visitation.

Rights Concerning Child Custody

It has become more and more frequent that grandparents are assuming a greater role in the care of their grandchildren. In Colorado, the number is now over 35,000 grandparents whose grandchildren live with them part or full time. When a grandparent assumes more and more parental responsibility, it is certain that legal issues may arise as to their authority in the care of the child. Issues such as the ability to register a child for school, make medical decisions and receive financial help are becoming increasingly common. There are options for grandparents that find themselves in this situation. Some remedies for grandparents are:

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Power of Attorney (POA)- This option is suitable for grandparents who are caring for a grandchild for a finite period of time. Either one or both parents must be willing to assign their parental rights to another person aka the grandparents. It is usually prepared by a lawyer, signed by both parties and notarized. It allows the grandparent the authority to make decisions in the care of the child. It doesn’t relinquish the parent’s authority or rights and can be terminated at any point by the parent. There are limitations to be aware of. By Colorado law, it can only be temporary, lasting for period up to 12 months. Under the POA, the grandparent cannot consent to adoption or marriage of the child. Depending on the health insurance or school district, they may not accept a POA when enrolling a child.

Custody – Legally called “allocation of parental responsibility”, but commonly referred to as “custody”, is an option if parents are unwilling to sign a POA. Grandparents must file with the court, asking for custody. This can only be done if the child has lived with the grandparents for 6 months. If the child has been removed from their care, there is still an option to file, if the child has not been gone for more than 6 months after living with the grandparent. The parents must be notified of the hearing. If awarded, a court may allow the parents to have visitation and may even require them to pay child custody to the grandparents. There may also be additional benefits, such as social security and/or public assistance (Medicaid, food stamp etc.) given to the custodian. Unlike visitation, which only grants grandparents the right to see the child, custody endows grandparents with varying legal authority over the care of the child.

Guardianship – Similar to custody, this option grants grandparent’s temporary parental rights. Unlike custody, guardianship is filed with a probate court, not a family law court. If the child is 12 years or older, a court will consider the child’s opinion on whether or not they consent to the appointment.

Adoption – This option is for all intents and purposes, permanent. In order to file for a motion to adopt, the grandparent must show that the child has been abandoned by the biological parent for a period of a year or greater and/or has not sufficiently cared for the child financially. Additionally, a parent may agree to relinquish their parental rights or if there is presence of abuse or neglect, then a court will usually be in favor of granting an adoption to a family member (such as a grandparent) rather than send the child into foster care.

Things a court will consider when deciding on custody, guardianship or adoption:

  • Age and health of grandparent
  • Pre-existing relationship between grandparent and grandchild
    • Frequency and duration of physical time together
    • If/and to what extent any psychological bonds may have developed
  • Child’s best interest
  • Child’s opinion if over the age of 12
  • Parent’s opinion
  • What/if any harm would be done to the child if the order was denied

Grandparents face a lot of obstacles when it comes to obtaining visitation or custody of their grandchildren. This is because, like in most states, Colorado courts believe that biological parents have the “first and prior right” to the care, decision making and custody of their children. Unless a grandparent has hard evidence to the contrary, it is an automatic presumption that the biological parents will act in the best interests of the child. Only through proving that a parent is unfit to make decisions and/or that those decisions are not in a child’s best interest, can custody and/or visitation be awarded.

Only in cases where the biological parents are deceased or when the children removed from the home by the state, is preference given to grandparents.

R&H’s own Attorney James Townsend’s role in the formation of grandparent’s rights in Colorado

James Townsend is a major authority on the matter of grandparent’s rights in Colorado. In 2007 James played a pivotal role in changing the law regarding grandparent visitation in the state of Colorado. He co-wrote the Petition for Writ of Certiorari in In re Adoption of C.A., 137 P.3d 318 (Colo. 2006). This case has come to define Colorado’s standard for grandparent visitation today. Not only is James an expert in statutory and case law that affect grandparent’s right, James also knows the ins and outs of the local court systems in Colorado and the personality of the local judges – factors which can make or break a case.

James has experience serving both parties on either side of a grandparent’s rights case. For grandparents wondering what kinds of odds they may be facing, James has experience reviewing cases to make sure they have the legal standing needed to pursue a case in court. James has also successfully helped parents fight for parental rights.

With so much at stake, it’s important to retain the legal help that has both your bests interests at heart, and the knowledge and skill to obtain the best possible outcome. Call us to schedule your free consult with James today.

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