If you are here, it likely means you have been unable to visit with your precious grandchildren or a parent concerned about a grandparent trying to see your children against your wishes. Grandparent’s rights do exist in Colorado but are limited. Grandparents’ rights include both a potential right to “visitation” and a potential right to “custody.” The courts in Colorado appreciate that a grandparents involvement with their grandchildren is important and necessary, so long as the child’s best interests are being obtained. However, whether a grandparent has the right to visitation with their grandchildren depends on several circumstances.
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 must file a motion with the court along with an affidavit “setting forth facts supporting the requested order.” Under C.R.S. § 14-10-124.4(3), grandparents may have rights and request visitation when:
- The child’s parents are already or currently having their marriage dissolved (divorced), separated, or annulled. (Any case where parenting time is determined is a qualifying circumstance.)
- 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).
Although these two steps are important, whether a grandparent has a right to custody is far more complicated. To learn more about grandparents’ rights in other states, 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 shall decide how their children spend their time and with whom. However, there are exceptions.
Specifically, C.R.S. 14-10-124.4(4) provides better detail as to when grandparents shall obtain visitation rights, stating:
“[i]n determining the best interests of the child for the purpose of grandparent or great-grandparent family time, the court shall presume the parental determination regarding grandparent time is in the best interests of the child. a grandparent or great-grandparent may overcome the presumption upon a showing by clear and convincing evidence that the grandparent family time is in the child’s best interests.”
Exceptions Where Grandparent Visitation Rights May Exist
If the child’s parents are (1) currently divorcing or (2) are divorced already and (3) a court has issued orders regarding custody and parenting time of your grandchild, then you can move to ask for visitation rights. Along with the motion, you must also submit an affidavit setting forth the facts that support your request for visitation. The motion and the affidavit form the basis for your request to the court.
Besides a divorce case, there are other types of cases qualify and allow grandparents to intervene by moving to seek 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 you file the motion, the parents may file a response and include their own 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. A hearing will happen in almost all cases. The judge then decides whether visits with you are in the children’s best interests. If the parent or parents object, their wishes concerning visitation with you are alotted “special weight” due to the Supreme Court’s 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 show 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. For instance, a judge may order visitation one weekend a month, or every other weekend, or any other schedule the court thinks is appropriate. Generally, courts look to the historical time that grandparents spent with the child to determine what 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 agree, you still want it to become an order of the court so that your rights are enforceable. Make sure that you reduce your agreement to writing and submit it to the court for the court’s approval. This will make sure that it is enforceable.
Once the court establishes the schedule, the parents must follow the court’s order. If the parents deny visitation, you can seek enforcement of the order and make the parents comply. However, the court also keeps jurisdiction to end or change your grandparent’s visitation rights. As with any order relating to children, the schedule is modifiable. The court will always look at what is best for the children.
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.
Exercising Grandparent Visitation When Living Out of State
While living in a state other than Colorado does not preclude grandparents from exercising grandparent visitation, there are admittedly many more hurdles to overcome than the traditional in-state visitation schedule.
Primarily, the Courts are likely to Order that grandparent visitation take place in the state that the minor children reside, especially during the school year. While Colorado Courts are more amenable to grandparent visitation during the summer months, this is largely contingent on the age of the minor children and the ability to afford the minor children leaving the state to visit their grandparents.
The older the children become, the more their voices are heard in this process, as well. For example, should the children be in high school and wish to participate in sports or spend their summers with their friends, the courts will put more weight into their wishes than they do when the children are younger. In the alternative if children express a desire to spend more time with their grandparents as they get older, that will be considered as well.
Grandparent Custody vs. Grandparent Visitation
If you ask for grandparent rights and the court grants your request, the parents still keep their rights to make decisions for their kids. As a grandparent, your rights are to see your grandchildren on the schedule identified by the judge, not make decisions for them.
However, if your grandchildren live with you and have lived with you for at least six months and no more than 182 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). These heightened rights include parenting time and decision-making responsibility. You do not need to intervene in a case that has already been filed. However, you must submit a Petition for Allocation of Parental Responsibilities asking the court to award you custody of your grandchildren within 182 of the physical care ending.
If either of the children’s parents objects, you must present clear and convincing evidence that your proposed custody schedule is in the grandchildren’s best interests. Once again, the law presumes that the parents are acting in your grandchildren’s best interest. Therefore, you must present powerful evidence to overcome the presumption if the parent objects.
If the court awards you parental responsibilities, then you have all the rights and duties that a parent would have. This means that you may 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.
It is important to know that a parent may remove the children from out of state even if you file a Motion seeking Grandparent Visitation. However, if you have parental rights given the nature of your relationship with your children, then your Petition for Allocation of Parental Responsibilities does prohibit a parent from removing the children from out of state upon serving them with the Petition.
As A Parent, How Do You Stop A Grandparent’s Visitation Rights?
A parent can stop a grandparent’s visitation or custody 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. If you are asking this question to yourself then presumably you are still alive and well. A Supreme Court case from 2000, Troxel v. Granville, found that the law presumes that parents act in their children’s best interest, and places the burden on the grandparents to prove to the contrary. In general, it is extremely rare for a grandparent to obtain full custody over their grandchildren, and 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.
For further assistance in obtaining grandparent visitation or to determine the legal rights as a grandparent or parent facing this issue, contact a Griffiths Law attorney today.
Jamie Paine is a Shareholder at Griffiths Law. Jamie’s practice focuses on domestic relations matters. Jamie’s background as a District Attorney helps her handle delicate matters with tactful strategy and empathy.
Robert Perrone is a Senior Associate at Griffiths Law. Robert is an experienced attorney with an accomplished track record for winning complex family and civil litigation.