Grandparent Responsibility

 

Visitation

 

Grandparent Custody:

While people tend to think of custody cases as battles between two biological parents of the child, a significant number of custody cases involve more expanded family settings. Maternal and paternal grandparents often get involved in custody cases either through supporting the child's parent, being the grandchild's caretaker or as actual parties in the case. Colorado law does grant certain rights to grandparents, although the United States Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000), places limits on those rights.

Natural Parents Presumed to Know Best: In Troxel v. Granville the Supreme Court found that parents have certain fundamental rights in the raising of their children. For the state to intrude on those fundamental rights (by, for example, forcing the parents to allow grandparents to see the child), the state must have a compelling reason for doing so. In interpreting this opinion, Colorado courts have held that a presumption exists that the child’s natural or adopted parents act in the best interests of the child when denying grandparent visitation. Grandparents seeking visitation with their children must overcome this presumption with clear and convincing evidence to the contrary.

Grandparent Visitation:

Cases involving grandparent visitation issues are often highly complex. Most often, the issue arises in high conflict divorce or custody cases. Grandparents seeking to intervene in a high conflict case have to navigate between two hostile parents, a complicated court system, and complex legal issues requiring reference to the U.S. Constitution, U.S. Supreme Court Opinions, Colorado Supreme and Appellate Court Opinions, and Colorado statutes. The experience can be overwhelming for people who find themselves caught in one of these situations, even if they have an attorney to walk them through the process.

Grandparents have the right to petition the Court for visitation with the minor child in any custody case that has already been filed. Grandparents who have been denied visitation with their grandchild cannot start a court case on their own solely for the purpose of having grandparent visitation ordered by the Court. One situation we frequently encounter is grandparents living in the same state as a custodial parent who is hostile to them seeing the child, while their own child lives in a different state, making it difficult for the grandparents to spend time with the grandchild during their child’s parenting time.

Ultimately, grandparents seeking visitation with a child will have to prove their case via an evidentiary hearing in front of a Judge or Magistrate. This means presenting testimony and documentary evidence. Testimony from the grandparents and the parents will almost certainly be necessary. There may also be testimony from a Child and Family Investigator or Parental Responsibilities Evaluator.

Grandparent 'Parental' Responsibility:

Grandparents seeking custody of a child face a very different legal landscape. If a grandparent (or any non-parent) has had physical care of the child for a six-month time period and less than six months have elapsed since that physical care ended, the grandparent can file a case requesting custody of the child. The presumptions in favor of the natural parents are not as strong, considering the child has already been given into the care of the grandparents for a significant period of time. Also, these situations normally involve much lower levels of conflict, primarily because at least one parent and usually both have already consented to the grandparent assuming care of the child. A grandparent can gain much greater rights by filing for parental responsibility or custody, including the right to make decisions for the minor child and to receive child support from the parents on behalf of the minor child, in addition to having significantly more time with the minor child.

If the grandparent’s request for custody is opposed by one or both of the natural parents, however, the case will be much more complicated. Once again, the grandparents will have to prove their case by an evidentiary hearing and will likely have to involve experts appointed by the Court to do so.

In the end, grandparent visitation and custody cases turn on a number of highly factual questions that can turn on many intricate details. Consultation with an attorney is strongly advised so that grandparents can be fully aware of what rights they may have in their particular situation. Acting in a timely manner can be very important. Martin Law Firm can assist in this process and counsel on how to maintain the relationship between grandparents and their grandchildren.

Grandparent Guardianship & Power of Attorney:

If the grandchild is in need of a legal caretaker, which may occur if the natural parent is unable to unwilling to provide care for the child due to military service, incarceration, abandonment or other absence, grandparents may be able to petition the court to be appointed as the child's guardian. The child's parent may also give the grandparent a Power of Attorney to act on their behalf in making decisions for the child, such as school enrollment or medical attention.

 


 

General Info

Colorado grandparents can file for visitation rights under three circumstances: if the grandchild's parents are divorced or legally separated; if the child is in the custody of someone other than a parent; or if the grandparent's child, who is the parent of the child, has died. If a parent loses his or her parental rights, the rights of his or her parents, the child's grandparents, are lost also.

In Colorado, parents who have cut off contact with grandparents are presumed to have acted in the child's best interest.

This is, however, a "rebuttable presumption," meaning that grandparents can present evidence to the contrary. Grandparents must present "clear and convincing evidence" that either the parent is not fit to make this presumption or that the decision barring visitation is not in the best interests of the child.

If the court orders visitation, it must cite the "special factors" on which it relied for its decision. The court may hold a hearing to make its determination or rely on the evidence presented in affidavits. A hearing is required if the custodial parent so requests.

Adoption terminates the visitation rights of grandparents unless the adopting party is a stepparent.

Two cases provide more insight into Colorado law. In Colorado, as in many states, a grandparent visitation suit cannot be filed if the grandchildren in question live in an intact family. In the 2005 case In the Matter of D.C. and D.C. the grandchildren in question lived with their mother but not with their father. The court, however, declined to award visitation because there had been no judicial intervention in the couple's marriage.

Another important passage comes from the 2006 case In Re Adoption of C.A., in which the court warned that "a dispute between parents and grandparents regarding grandparent visitation is not a contest between equals." In other words, parents have an advantage in court which the grandparents must overcome.

See 19-1-117 of the Children’s Code in Colorado Revised Statutes for information about grandparent visitation and 19-1-117.5 for information about grandparent visitation disputes.

 


 

Frequently Asked Questions:

How do I ask the courts for permission to visit my grandchildren?

In Colorado, any grandparent may seek a court order granting contact and visitation rights, in the following situations:

A grandparent can seek a Court Order allowing grandparent visitation if, and only if, one of these situations is present.

If one of these basic criteria is met, the grandparent must file a Verified Motion/Affidavit for Grandparent Visitation, in the district court for the county in which the grandchild resides. The grandparent must set forth the facts supporting the requested order. Notice must be given to the party (or parties) who has (or have) legal custody of the grandchild. The court may make an order, with or without a hearing, granting (or denying) visitation rights whenever such order would be in the best interest of the grandchild.

Can I be awarded court ordered grandparent visitation if my son or daughter will not let me see my grandchild when one of the three (3) situations set forth above has not occurred? No.

Can I take my grandchild away from his or her custodial parent when that parent is drinking or using drugs? Not without a Court Order.

If my grandchild is adopted, will my rights to grandparent visitation be terminated? Yes. However, if your grandchild is adopted by his natural parent's new spouse (e.g., stepparent) and still remains with and in the legal custody of his natural parent, your rights to grandparent visitation are not automatically terminated.

When the court has determined by way of a paternity case that my son is the father of a child and a custody order has been entered, can I seek grandparent visitation with that child? Yes.

Once I get an order granting me grandparent visitation, can this order ever be modified or changed? Yes. The court may modify or change any order regarding grandparent visitation if the court finds that such modifi­cation or change would be in the best interest of the grandchild.

If my grandchild's custodial parent does not comply with court ordered visitation, can I get any help from the court to enforce such visitation? Yes. After the court has determined that the person with legal custody of the child has not complied with the visitation order, the court can impose additional terms and conditions consistent with the court's previous order, modify the previous order, require the violator to post bond or security to insure future compliance, require that missed visitation be made up, hold the violator in contempt of court and impose a jail sentence or bond, or award the aggrieved party his or her attorney's fees.

Will I need to pay anything to file the documents with the Court? Yes. The grandparent will need to pay to the clerk of the District Court a filing fee and possibly an intervenor's fee if it is a pending case. Click here for a list of "Filing Fees and Costs in Colorado State Courts". Would it be possible to have that fee waived? Yes. If you are indigent (low-income), you can file a "Motion to File without Payment and Supporting Financial Affidavit", asking the Court to permit you to file the documents free of charge, but only if you can prove to the Court that you are in fact indigent and unable to pay the fee.

How do I notify the party having custody of the minor child that I am asking the Court for court ordered visitation with my grandchild? If there is a case pending and if a party is represented by an attorney, you need to mail or hand deliver a copy of the Motion for Grandparent Visitation and the Affidavit in support of Grandparent Visitation to the attorney. If a party is not represented by an attorney, you need to mail or hand-deliver a copy of the Motion for Grandparent Visitation and the Affidavit in support of Grandparent Visitation to the party personally. Also, a 'Certificate of Mailing' should be included at the bottom of all of the documents verifying to the Court that you either hand delivered or mailed them to the party (or parties) or his or her attorney on a certain date.

If other people are involved in the pending case, do I need to notify them as well, even if they do not have custody of my grandchild? Yes. The same notice procedures apply to all parties involved in the case, including all attorneys appointed to represent any party or involved in the case in any other capacity (such as a Child and Family Investigator or Parenting Coordinator).

Can the party or parties having custody of the minor child file opposing affidavits with the Court? Yes. However, the filing of opposing affidavits is not required. The party is still permitted to request a hearing on your Motion for Visitation even though he or she did not file opposing affidavits. However, if a hearing is held, only those parties who have submitted affidavits shall be allowed an opportunity to be heard.

Does there have to be a hearing in order for me to get court ordered visitation with my grandchild? No. If no party (including you) requests a hearing, the court can enter an order for Grandparent Visitation if it finds that such visitation would be in the best interest of the minor child.

Colorado Grandparent Rights & Visitation Introduction

 

Under C.R.S. 19-1-117, a grandparent can petition a Colorado family law court for reasonable grandchild visitation rights in the following situations: 1. The grandchild's parents have obtained a dissolution, annulment, or legal separation, 2. The child has been placed into the legal custody of someone other than a parent, or 3. The child's parent, who is the child of the grandparent seeking visitation, has died.

There is no automatic right to grandparent visitation – the Colorado family law court must find that it is in the best interests of the child to have grandparent visitation. And, once granted, Colorado grandparent visitation may be modified or terminated if it is in the best interests of the child. Note that this is not the end of the inquiry, however – see the next article on Colorado Grandparent Rights Legal Standards for important cases interpreting the "best interests" standard.

Finally, Colorado grandparent rights and visitation are terminated by the child's adoption, or termination of the parental rights of the child's parent who is the child of the grandparent.

There Is No Formalized Colorado Grandparent Visitation If Family Intact

In February 2005, the Colorado Court of Appeals issued a ruling, In the Matter of D.C. and D.C., 04CA0249 (Colo. App. 2005) which reiterated that a grandparent in Colorado could not seek visitation with grandchildren when both of the children's natural parents were alive and there had been no prior Colorado family court actions.

The grandparent argued that the family was not intact, since the children lived with their mother, and not the father. However, the absence of a court action was fatal to that argument. Citing the Troxel decision, the Court of Appeals stated: "[T]he statute ensures that grandparent visitation decisions made by parents of intact families, where there has been no prior court intervention, are not challenged."

New Legal Standard for Grandparent Visitation

Grandparent visitation rights were thrown into a state of confusion by the U.S. Supreme Court. In a 2000 case, Troxel v. Granville, 530 U.S. 57 (2000), 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. Bottom line – 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 due deference to the wishes of the child's parents.

There have been multiple cases litigated at the Colorado Court of Appeals and Colorado Supreme Court over the past decade struggling with how to apply the Troxel decision. And the legal standards changed every time a different court issued an opinion.

The definitive word on grandparent visitation in Colorado came from the Colorado Supreme Court in a 2006 decision, In re: Adoption of C.A., 137 P.3d 318 (Colo. 2006). There, 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 after adhering to the following requirements:

  • When the marriage of the grandchild's parents has been declared invalid or dissolved, or the court has entered a decree of legal separation, or
  • When the legal custody of the grandchild has been given to a party other than the parent, or the child has been placed outside of and does not reside in the home of the parent, excluding any child who has been placed for adoption or whose adoption has been legally finalized; or
  • When the grandchild's parent, who is the child of the grandparent, has died.

    "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. One civil jury instruction describes it as follows:

    "The clear and convincing standard requires evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the fact[s] for which it is offered as proof. To be clear and convincing, the evidence must be so clear as to leave no substantial doubt and be sufficiently strong to command the unhesitating assent of every reasonable mind."

    Source: www.juryinstruction.com.

    What does this mean? While grandparent visitation is not technically dead in Colorado, it's far from easy. In my own experience, it's harder now than ever for grandparents to obtain visitation rights in Colorado, and whether they do depends a lot upon the individual judge assigned to the case.

    Reasonably, unless the grandparents have had a major role in the child's life, and have uncontroverted evidence that the parent is acting unreasonably in denying visitation, seeking grandparent rights may be an expensive, and losing, proposition.

     


    Colorado Grandparent Custody Rights

    1. A presumption in favor of the parental grandparent visitation determination.
    2. The grandparents must show, by clear and convincing evidence, that the determination is not in the child's best interests.
    3. The grandparents must show, by clear and convincing evidence, that the visitation schedule they seek is in the child's best interests.
    4. Though not strictly speaking a means of obtaining grandparent visitation, grandparents today often end up raising their grandchildren, and may seek to obtain physical care (the term Colorado uses for "custody") over them. There are three primary avenues through which a grandparent in Colorado may obtain custody over a grandchild: 1. 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). 2.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. 3.Any person, including a grandparent, who had physical care of the child for at least 6 months, within 6 months of the termination of the physical care, can petition a Colorado family law court for an allocation of parental responsibilities. C.R.S. 14-10-123.

      Note: Colorado grandparent custody rights are not automatic. Rather, like a parent seeking custody, the Colorado family law judge must determine first whether the grandparent would be a suitable custodian. Courts may consider any credible evidence of past child abuse or neglect by the grandparent in determining whether to award custody.

      This law firm makes an effort to keep this public information up to date. However, we do not make any warranty as to this information’s currency, nor do we make any other warranties about the information. The use of this site does not constitute legal advice and anything contained therein is for informational purposes only. This is not a complete compilation of The Colorado Revised Statutes, it is not necessarily a complete analysis of the law, and should never be relied upon for legal advice.

      The best practice is to call our firm and set up an appointment at James Munafo & Associates, PC: Parker (303)805-7430 or in Colorado Springs, (719) 635-9994.