Spending time with your grandchildren is one of the great joys of your life. Situations can arise that make it difficult, however: your child decides to get divorced, or becomes disabled, imprisoned or terminally ill. While it is always best to maintain a good relationship with your child’s spouse or ex-spouse and be respectful of their child-rearing choices, the situations may arise in which you as a grandparent believe you should have formal visitation rights or even believe you should take over the raising of your grandchildren. It is very difficult in Colorado for any outside adult to get custody when the parent is adequately caring for their children. But there is a legal precedent for creating visitation that is agreed upon and formalized by the court, and an attorney can help guide you through the process.
1. Your child is going through a divorce.
This is not something you would have chosen for them, but they have been through the wringer, have tried counseling, and have determined that divorce is the best resolution. You are of course concerned for your child and their spouse, but they are adults. Your grandchildren will be the ones that keep you up at night in the days to come. At the beginning of this process, the divorce decree was a long way off. It looked like your child was going to be the custodial parent. But it’s been a few months or a few years and your daughter’s ex is petitioning to have the kids for half the week. Or your son and his new girlfriend are living together, but it’s not clear that they will be together for the long term and you’re concerned about the kids.
When there are children involved in the divorce process, the emotional intensity of the proceedings can lead to poor decisions where custody is concerned. One of the most devastating choices people can make is to back down from a custody battle because of the real or perceived stress it is causing the children or their spouse. Your child may feel fed up with the process or angry with their spouse, but any indication to the court that they don’t want to be involved in their children’s lives can result in a custody decision that is unfavorable to them – if not now, then once tempers have cooled.
How will your grandchildren’s lives be affected? How can you help? And when your child is going through this tough time, how can you talk with them about the fear weighing on you: that you could be prevented from seeing your grandchildren under the new custody arrangements?
2. Your child has become disabled.
Your child has become disabled and is now unemployed and unable to work. Their spouse is working more, trying to earn enough for the whole family, but you worry the children’s lifestyle will change drastically. Not only will one parent be disabled, but the other will be working for most of the time the children have at home. Do you have the right to help by taking custody of the children, if you can provide them with the care and comfort they had before the disability?
3. Your child is deceased or terminally ill.
One tragic scenario in which the grandparents could have a strong case for custody is when their child that is the parent of the grandchildren has died. This is a situation no parent wants to consider, but it did occur in the formative case on the subject, mentioned below. Leading up to and after the death of their parent, your grandchildren will need care. You may have always had certain times with the kids and hope to continue that tradition, even building more time in to make up for the loss of their parent, your child, in their lives. Can you petition the court to make this official, keeping it out of the fray in any future marriage that may happen for the surviving parent?
When your grandchildren are your only connection to your deceased child, emotions can run even higher around time with those children. The law is clear, as outlined below, but if you’re considering seeking custody, the attorneys at Robinson & Henry can assess the details of your situation and help you move forward in an informed way.
Time With Your Grandchildren
So, with all this in mind, how can you protect your time with your grandchildren? Many grandparents have set times that they see their grandkids. The children are your responsibility 3 days a week, or you have a tradition of seeing them every Christmas Eve, or you always go to the lake together for Memorial Day. If these times fall on days your child’s ex has the kids after a divorce, or the children’s new step-parent has different ideas about how to spend these times, you will be hard pressed to keep your traditions alive.
Children need protection and stability during these tough times. The parents will be struggling emotionally, socially and even financially. But their children will be struggling as well, and the best thing for them is to keep as much stability as possible in their day-to-day lives. You can step in to provide this, while also being available to your child to help them with the day-to-day obligations of meetings with attorneys and mediators, getting to court appearances, etc. But will you have the legal right to custody of the children?
Grandparents Have Legal Rights
Grandparent visitation rights were thrown into a state of confusion by the U.S. Supreme Court in a 2000 case, Troxel v. Granville (for a short summary of the case, see below in “Relevant Excerpts from Troxel v. Granville). The Court ruled that states which allowed grandparents visitation rights against the wishes of a child’s parent violated the constitutional right of a parent to raise the child. The law states that fit parents are presumed to be acting in their child’s best interests, and while family law judges may order grandparent visitation, they must give extra weight to the wishes of the child’s parents.
The Court stated that “a dispute between parents and grandparents regarding grandparent visitation is not a contest between equals.” On the contrary, the Court could only order grandparent visitation under the following conditions:
- A presumption in favor of the parental grandparent visitation determination.
- The grandparents must show, by clear and convincing evidence, that the current determination is not in the child’s best interests.
- The grandparents must show, by clear and convincing evidence, that the visitation schedule they seek is in the child’s best interests.
“Clear and convincing evidence” is a high burden. While not as hard to meet as the “beyond a reasonable doubt” standard required in criminal cases, it’s more than the “preponderance of the evidence” standard typically required in civil cases.
There are three primary avenues through which a grandparent in Colorado may obtain custody over a grandchild:
- If Colorado authorities remove a child from a parent’s home, under C.R.S. 19-1-115, grandparents in Colorado have 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).
- Though not strictly speaking a means of obtaining grandparent visitation, grandparents often end up raising their grandchildren, and may seek to obtain physical care (the term Colorado uses for “custody”) over them.
- Any person, including a grandparent, who has had physical care 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 custody rights are not automatic. Rather, the Colorado family law judge must determine first whether the grandparent would be a suitable custodian, just as when a non-custodial parent seeks custody. Courts may consider any credible evidence of past child abuse or neglect by the grandparent in determining whether to award custody.
What the court will consider first and foremost is the child’s best interest. A knowledgeable attorney from Robinson & Henry can help you navigate the legal precedents and understand your rights under Colorado law. Contact us for a consultation at 303-688-0944.
Robinson & Henry is an Experienced Choice
In 2007 Robinson & Henry family law attorney James Townsend 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) (https://www.courtlistener.com/opinion/2633550/in-re-adoption-of-ca/), the case that defines the current standard for grandparent visitation.
If your child is going through a divorce, has become unable to care for their children, or is deceased, you may be deeply concerned about the welfare of your grandchildren. Robinson & Henry, P.C. attorneys can help you understand and exercise your rights regarding either visitation or custody.
Relevant Excerpts from Troxel v. Granville
In Troxel v. Granville, the Washington state court of appeals concluded that the “special weight” courts must give to parental determinations under Troxel requires a grandparent requesting visitation over the wishes of legal parents to prove “that a fit parent’s exercise of parental responsibilities poses actual or threatened emotional harm to the child,” and that such harm must be “substantial.” Troxel may guide and limit a Colorado trial court’s determination in a child custody determination. The trial court must give special weight to a parent’s determination of the child’s best interests with respect to grandparent visitation. The court may not merely substitute its own judgment for that of the parent as to what grandparent visitation is in the child’s best interests. The Troxel plurality holds that “there is a presumption that fit parents act in the best interests of their children.” Troxel states that “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” (Citation omitted.) Further, “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.” According to this precedent:
1. Any grandparent of a child may, in the manner set forth in this section, seek a court order granting the grandparent reasonable grandchild visitation rights when there is or has been a child custody case or a case concerning the allocation of parental responsibilities relating to that child.
Because cases arise that do not directly deal with child custody or the allocation of parental responsibilities but nonetheless have an impact on the custody of or parental responsibilities with respect to a child, for the purposes of this section:
a “case concerning the allocation of parental responsibilities with respect to a child” includes any of the following, whether or not child custody was or parental responsibilities were specifically an issue:
(a) 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;
(b) 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; or
(c) That the child’s parent, who is the child of the grandparent, has died.
(2) . . . . If neither party requests a hearing, the court shall enter an order granting grandchild visitation rights to the petitioning grandparent only upon a finding that the visitation is in the best interests of the child. A hearing shall be held if either party so requests or if it appears to the court that it is in the best interests of the child that a hearing be held. At the hearing, parties submitting affidavits shall be allowed an opportunity to be heard. If, at the conclusion of the hearing, the court finds it is in the best interests of the child to grant grandchild visitation rights to the petitioning grandparent, the court shall enter an order granting such rights.