Grandparent’s rights do exist in Colorado but are fairly limited. Grandparents rights include both a potential right to “visitation” and a potential right to “custody.”
Whether a grandparent has the right to visitation with their grandchildren depends on the circumstances, but, in general, there are two steps. First, the grandparent has to establish that one of the “qualifying circumstances” exists under Colorado law allowing for grandparent visitation rights. Second, the grandparent has to file a motion with the court asking for visitation along with an affidavit “setting forth facts supporting the requested order.” Under C.R.S. § 19-1-117(1), grandparents may have rights and request visitation when:
- The child’s parents are already or currently having their marriage dissolved (divorced), separated, or annulled.
- Custody of the child has been allocated to someone other than the child’s parent (a third party).
- The child’s parent has passed away (but only if it is the parent that is your child).
Whether a grandparent has a right to custody is far more complicated and is discussed below. To learn more about grandparents rights in other states, take a look at FindLaw’s 50-state survey.
Grandparents Rights Generally
If you are a grandparent and the parents of your grandchildren are alive, healthy, and the children live with them, then the children’s parents have the ultimate right to decide whether you can spend time with them. This is because the US Supreme Court has declared that the care, custody, and control of one’s own children is a constitutional right and parents are presumed to act in the best interests of their children. As a result, the parents get to decide how their children spend their time and with whom. However, there are exceptions.
Exceptions Where Grandparent Visitation Rights May Exist
If the child’s parents are involved in a divorce proceeding or are already divorced and a court has issued orders regarding custody and parenting time of your grandchild, then you can file a motion asking for visitation rights with your grandchildren. Along with the motion, you must also submit an affidavit setting forth the facts that support your request for visitation.
In addition to a divorce case, there are other types of cases qualify and allow grandparents to intervene by filing a motion seeking visitation. The qualifying type of cases include legal separation, annulment, allocation of parental responsibility, dependency and neglect, paternity, or a probate action where a child’s parent has died, or someone is acting as a guardian.
Once the motion and affidavit are filed, the parents may file opposing affidavits. If you or the parents ask for a hearing, the judge must conduct a hearing where both sides will be expected to present evidence supporting their position. The judge then decides whether visits with you are in the children’s best interests. If the parent or parents object, his or her wishes concerning visitation with you must be given “special weight” because of the Supreme Court decision.
A court can only override the parent’s wishes if the presumption that a parent is acting in their child’s best interests is overcome by clear and convincing evidence. The burden is on the grandparents to put forth sufficient evidence that parenting time with them is in their grandchildren’s best interests despite the parent’s objection.
Enforceable Order of the Court
If a court grants your request for grandparent visitation, the judge will set a visitation schedule, and it will become an order of the court. The schedule and frequency of visitation will depend on the circumstances. A judge may order visitation one weekend a month, or every other weekend, or any other schedule the court thinks is appropriate. The court may also provide for vacation time during the summer, depending on the circumstances.
You and the child’s parents can also come to an agreement about your right to visit your grandchildren. If you do reach an agreement, you still want it to become an order of the court so that your rights are enforceable, so make sure you reduce your agreement to writing and submit it to the court for the court’s approval.
Once the schedule is set and becomes a court order, the parents are bound to follow the schedule and allow visitation, even if they do not agree. If the parents deny visitation to you when there is an order in place, you can seek enforcement of the order and make the parents comply. However, the court also retains jurisdiction to terminate or modify your grandparent visitation rights if it is in the best interest of the grandchildren.
Getting the Process Started
If you want to apply for visitation with your grandchildren, first determine whether you qualify to make a request. You qualify if there is a pending case that affects the custody of the grandchildren, or there has been a case in the past, even if it is already concluded.
Once you determine if you can file for grandparent’s rights, you need to find out in which jurisdiction the action is pending or was pending and file a motion to intervene in the case and then file a motion for visitation, along with the required affidavit.
Grandparent Custody vs. Grandparent Visitation
If you seek visitation and a court grants your request, the parents still retain their rights to make decisions for their kids; you merely have the right to see your grandchildren on the schedule set forth by the judge.
However, if your grandchildren live with you and have lived with you for at least 6 months and no more than 60 days has elapsed since your grandchildren last lived with you, you can file an independent action and ask the court to award you parental responsibilities (custody), which includes parenting time and decision-making responsibility and you do not need to intervene in a case that has already been filed. In this case, you must submit a Petition for Allocation of Parental Responsibilities asking the court to award you custody of your grandchildren based on the fact that they already live with you or lived with you in the very recent past.
If either of the children’s parents’ objects, you will have to present clear and convincing evidence that your maintaining custody is in your grandchildren’s best interests. Once again, the parents will be afforded the presumption that they are acting in the children’s best interests and you will have to present evidence to overcome the presumption if the parent(s) object.
If you are awarded parenting responsibility, then you have all the rights and duties that a parent would have, meaning you are allowed to make all major decisions for your grandchildren, including educational and medical decisions. You also get to decide who the children spend their time with, including their parents or other grandparents.
As A Parent, How Do You Stop A Grandparent’s Visitation Rights?
Fairly easily. As explained above, the burden on a grandparent to prove that visitation is in the children’s best interest is very high and if you are asking this question to yourself then presumably you are still alive and well. Because of the rule that parents are presumed to act in their children’s best interest, if you object to grandparent visitation rights and have even a halfway decent case, you will likely prevail. In general, for a grandparent to obtain full custody over their grandchildren, the facts and circumstances need to be fairly dire. If you want to stop a grandparent from obtaining visitation or custody, the best strategy is to ensure that you are doing everything you can do that is in the child’s best interest.
Leslie Hansen is Senior Counsel at Griffiths Law PC. Hansen has experience in all aspects of family law including cases involving grandparents seeking custody and visitation of their grandchildren.