By: Janette Jordan
Grandparent visitation is a unique area of family law that not many people are aware of. This is different from grandparents adopting a grandchild, seeking custody (parental responsibilities) of a grandchild, or seeking a guardianship of a grandchild. For more on those topics, please visit some of our prior blog posts. In Colorado, the State recognizes grandparent visitation rights with a minor child under a specific set of conditions set forth in statute.
Pursuant to §19-1-117 of the Colorado Revised Statutes, a grandparent or great-grandparent can ask the court for “reasonable” visitation time with the minor child if there has been a child custody case or case concerning the allocation of parental responsibilities relating to the minor child previously filed with any Colorado court. The following situations are cases in which a petition for grandparent visitation would be appropriate:
- When the minor child’s parents have been legally divorced, separated, or annulled;
- When the minor child has been legally placed within the care and control of someone other than the biological parents (Please note that a child that has been placed for adoption is not eligible for grandparent visitation and the Court will not allow a grandparent to intervene);
- When there has been a child custody case involving a minor child, including dependency and neglect and guardianship cases;
- When the minor child’s parent, who was the child of the grandparent, has passed away.
If one of the situations stated above applies to your case, then you may proceed with filing a motion to intervene as a new party to the existing case. A petition for grandparent visitation, together with an affidavit, and proposed court order should also be filed. The purpose of seeking grandparent visitation cannot solely be to see the minor child or take time away from one of the child’s parents. Rather, a grandparent must show that visitation with the minor child is in the child’s best interests through clear and convincing evidence. This type of evidence will usually entail proving a meaningful relationship exists or existed, and that continuing that relationship would benefit the child.
The most prominent case regarding grandparent visitation is the United States Supreme Court, Troxel v. Granville, in which it was established that parents have a fundamental right to the care and control of their children. In light of Troxel, if a parent has denied visitation between the grandparent and the minor child, or objects to such, the burden of proof is on the grandparent to show through clear and convincing evidence why the denial of visitation is not in the child’s best interests as well.
Furthermore, the Colorado Supreme Court has determined in In Re Adoption of C.A., that the visitation being sought by the grandparent, must be also “reasonable,” again by the clear and convincing evidence standard. Given the burden(s) of proof placed on grandparents, both statutorily and via case law, one could argue that grandparents essentially have an uphill battle when seeking visitation. Each case is different and the facts and evidence will certainly vary.
It is also important to be aware of the restriction placed on parties seeking grandparent visitation through the court system. Similar to those child custody litigants seeking to modify primary residence, a grandparent cannot file for visitation rights more than once every two years, absent a showing of good cause. Additionally, under statute, the court may also order reasonable attorney fees to the prevailing party. It should also be noted that even though grandparent visitation may have been established, it cannot be used as a basis to prevent a parent from relocating with the grandchild from Colorado. In those instances, and depending on the specific visitation schedule, the grandparent may need to seek to modify orders.
What all of this means is that you need to be certain that you understand the law and the standards you will be held to when filing your request for grandparent visitation. Legally seeking grandparent visitation and whether to involve the court can be a big decision, one which family law attorneys would advise people to thoroughly think about before committing to. The most important individual who matters in a case like this is the child and what’s in his or her best interests. Once you make the decision that you wish to pursue grandparent visitation rights, you will want a diligent and skillful lawyer at your side.