While people tend to think of custody cases as battles between two biological parents of the child, a significant number of custody cases involve a more expanded family setting. 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.
The Colorado Supreme Court has determined that the appropriate legal standard to be applied in grandparent visitation cases is: “(1) a presumption in favor of the parental visitation determination; (2) to rebut this presumption, a showing by grandparents through clear and convincing evidence that the parental visitation determination is not in the child’s best interests; and (3) placement of the ultimate burden on grandparents to establish by clear and convincing evidence that the visitation schedule they seek is in the best interests of the child. The court must apply this standard in grandparent visitation cases and, if it orders grandparent visitation, it must make findings of fact and conclusions of law identifying those “special factors” on which it relies.” In re Adoption of C.A., 137 P.3d 318 (Colo. 2006).
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. 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. Colorado Divorce Attorneys 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 or 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.
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