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 Troxeldecision.  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:

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.

"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.