Spending time with your grandchildren is one of life’s greatest joys. Unfortunately, a variety of situations can make it difficult for you to cultivate a relationship with your grandchildren. If this is happening to you, it’s important for you to understand your grandparent rights under Colorado law.
Divorce, incarceration, and the death of a parent are circumstances that can limit a grandparent’s relationship with their grandchildren.
Whatever your family’s particular circumstances, it is always best to try to maintain a good relationship with your grandchild’s other parent and to be respectful of their child-rearing choices.
However, there may come a time in which you as a grandparent believe you need formal visitation orders or even believe you should take over raising your grandchildren.
It is important to underscore that it is very difficult in Colorado for any outside adult to get custody when the parent is adequately caring for their children. There is a legal precedent, though, for establishing grandparent visitation that is agreed upon and formalized by the court.
Learn More About Your Grandparent Rights
Our Family Law Team encourages you to set up a free case assessment where you can sit down with an attorney for a half-hour and talk about the facts of your case, possible legal options, and next steps. Call 303-688-0944 to set up the free case assessment or click here to make the appointment online.
Grandparent Rights & the U.S. Supreme Court
Grandparent visitation rights were thrown into a state of confusion by the U.S. Supreme Court in the 2000 case Troxel v. Granville. This case originated in Washington state. A pair of grandparents, the Troxels, petitioned for the right to visit their deceased son’s daughters. While the children’s mother, Ms. Granville, agreed with the girls visiting their grandparents, she opposed the amount of visitation her former in-laws sought.
A focal point of the case was Washington Revised Code § 26.1O.160(3). It allowed state superior courts to grant visitation rights to anyone at any time so long as the visitation was in the best interest of the children.
In Superior Court, the grandparents were awarded more visitation than the mother agreed with, so she appealed. The Washington Appeals Court, however, reversed the lower court’s decision and dismissed the grandparents’ case.
From there, the case moved to the Washington Supreme Court where it found that the state law unconstitutionally infringed on the mother’s fundamental right to raise her children. The state justices reasoned that the U.S. Constitution only permits a state to interfere with that right to prevent harm or potential harm to a child – and the court noted that the state’s law was too broad.
U.S. Supreme Court Gives Deference to Parents
The grandparents continued to fight for visitation, and the case made it all the way to the United States Supreme Court.
The nation’s highest court ruled that states which allowed grandparent visitation rights against the wishes of a child’s parent violated the parent’s constitutional right to raise their child.
“In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.”
– Justice O’Connor, Troxel v. Granville Opinion
In other words, a court cannot overlook a parent’s decision about whether their child should have a relationship with their grandparent.
What This Means for Colorado Grandparent Rights
It’s understandable if you feel a little defeated after reading that the U.S. Supreme Court gives deference to parents when it comes to grandparents requesting visitation with their grandchildren. However, this does not mean that all hope is lost in your pursuit to see your grandkids.
What this does mean, though, is that it is tougher now to establish grandparent rights regarding visitation and custody in Colorado.
Colorado Law & Grandparent Rights
In 2006, the Colorado Supreme Court said in order to accommodate the state’s “best interests of the child” intent and the “special weight” and “special factors” requirements from the U.S. Supreme Court, a Colorado court could only order grandparent visitation if the following requirements are met:
- a presumption in favor of the parental visitation determination
- grandparents can rebut this presumption through clear and convincing evidence that the parental visitation determination is not in the child’s best interests
- the ultimate burden is placed on the grandparents to establish by clear and convincing evidence that the visitation schedule they seek is in the best interests of the child
Clear and convincing evidence is a high burden.
While clear and convincing evidence is not as hard to meet as the beyond a reasonable doubt standard required in criminal cases, it is greater than the preponderance of the evidence standard typically required in civil cases.
So what is clear and convincing evidence? In a nutshell, you, as the grandparent, must be able to establish that the truth of your claim is highly probable and without serious doubt.
When Grandparents May Petition for Visitation
According to state law, grandparents and great-grandparents have a right to petition the court for reasonable visitation with their grandchildren in these circumstances:
- Divorce & Separation
That the marriage of the child’s parents has been declared invalid or has been dissolved by a court or that a court has entered a decree of legal separation with regard to such marriage C.R.S.A. § 19-1-117(1)(a)
- Grandchild to go to Foster Home
That legal custody of or parental responsibilities with respect to the child have been given or allocated to a party other than the child’s parent or that the child has been placed outside of and does not reside in the home of the child’s parent, excluding any child who has been placed for adoption or whose adoption has been legally finalized C.R.S.A. § 19-1-117(1)(b)
- Death of a Parent
That the child’s parent, who is the child of the grandparent or grandchild of the great-grandparent, has died. C.R.S.A. § 19-1-117(1)(c)
When Grandparents May Petition for Custody
For grandparents who think it is in their grandchild’s best interests to be raised by them, there are three primary avenues through which custody may be obtained:
- Child Removed from the Home
If Colorado authorities remove a child from a parent’s home, under C.R.S. 19-1-115, Colorado grandparents have a preference for the child’s placement over other potential foster parents – but not preference over the other parent. Any person, including a grandparent, with actual physical care of the child, can petition a Colorado family law court for allocation of parental responsibilities in Colorado C.R.S. 14-10-123.
- Grandparent Raising Child
Grandparents often end up raising their grandchildren when the child’s parent is absent in their life. In these circumstances, a grandparent may seek to obtain custody of them.
- Ongoing Custody Cases
Any person, including a grandparent, who has had custody of the child for at least six months can petition a Colorado family law court for an allocation of parental responsibilities within six months of the termination of the physical care C.R.S. 14-10-123.
Colorado grandparent rights are not automatic – even in these situations. So it’s important to talk to a lawyer about the facts of your grandparent visitation or custody case.
Talk to a Grandparent Rights Attorney
If your child is going through a divorce, is unable to care for their kids, or is deceased, you are likely deeply concerned about the welfare of your grandchildren. Robinson & Henry, P.C. attorneys can help you understand and exercise your grandparent rights regarding visitation or custody.
Your Free Case Assessment
During your case assessment, you’ll have a chance to talk about what’s going on with your family, learn about possible legal options, talk about cost, and next steps. Call 303-688-0944 to set up the free case assessment or click here to make the appointment online.