Grandparent Rights & Visitation

grandparent child

While parents often believe it is in the children’s best interest to have a close relationship to their grandparents, this is not universally true. A parent may be estranged from his own parents, and therefore oppose grandparent visitation rights, or after a death or divorce the custodial parent may not encourage a relationship with the other parent’s parents.

It’s because of these disagreements that Colorado has a grandparent rights statute as a means of resolving disputes between parents and grandparents/great-grandparents over seeing the kids. In the statute, great-grandparent and grandparent visitation rights are called “grandparent family time.”

In principle, the General Assembly has declared that grandparent visitation (called grandparent family time in Colorado) is generally a positive for children:

“(I) The General Assembly Finds and Declares that “A close relationship between grandparents or great-grandparents and grandchildren or great-grandchildren can be beneficial for the health and well-being of grandchildren or great-grandchildren; and

(II) Grandparents or great-grandparents may provide acceptance, patience, love, stability, wisdom and support to grandchildren or great-grandchildren.”

C.R.S. 14-10-124.4(1)(a) (Emphasis added).

Note the emphasized language – the assembly is not saying children should always see their grandparents, just that it’s often in their best interests.

Colorado law provides several methods by which grandparents may seek visitation, or even custody under the right conditions:

  • Grandparent visitation,
  • Grandparent placement/custody in a dependency & neglect proceeding involving DHS, or
  • Grandparent custody with a showing of being psychological parents.

Requirements for Grandparent Visitation Rights

The simplest, and most common situation, concerns a grandparent or great-grandparent who simply wants to see the child, rather than one who is trying to obtain custody.

Pursuant to C.R.S. 14-10-124.4(3), any grandparent or great-grandparent may seek visitation rights when there has previously been a child custody case, which also includes one of the following:

a. The grandchild’s parents’ marriage has ended in dissolution, legal separation or annulment,

b. A third party other than the parents has parenting time over the grandchild (other than through an adoption), or

c. The grandchild’s parent, who is the child of the grandparent or grandchild of the great-grandparent, has died (i.e. a grandparent has no standing to seek grandparent family time if the “other” parent has died, and it is their own child blocking visitation).

Grandparent Visitation Includes Great-Grandparents in Colorado

Grandparent visitation pursuant to this statute also applies to great-grandparents – following M.D.E., a 2013 Court of Appeals decision holding great-grandparents had no visitation rights the Assembly changed the statute to add great-grandparent visitation. That provision is now in C.R.S. 14-10-124.4(3), and a great-grandparent is simply defined in the statute as the grandparent of the child’s father or mother.

This article uses the term “grandparent” and “grandchild” for the sake of simplicity, but the discussion applies equally to great-grandparents and great-grandchildren.

No Grandparent Visitation If Parents Separated But No Custody Case

Look at the limitations above. If the child is still living with both parents and there has never been a custody order, the grandparent or great-grandparent lacks legal standing to even ask the court to order for grandparent visitation rights. The parents simply living apart from each other is not sufficient.

The Colorado Court of Appeals considered a situation where the children lived with their mother, not the father. And the father’s parents sought grandparent visitation, despite the absence of a prior custody order, arguing that the family was not intact. However, this absence of a prior custody order was fatal to their case, as the court held: “[T]he statute ensures that grandparent visitation decisions made by parents of intact families, where there has been no prior court intervention, are not challenged.” D.C.

This means that grandparents who are estranged from their own son/daughter cannot go to court to seek grandparent visitation over the objections of parents in an intact family unit. Similarly, if the child’s parents are separated, or were never married, but they never obtained any court orders, the grandparents cannot seek an order for grandparent rights.

Grandparents Must Seek Own Visitation, Parent Cannot Seek on Their Behalf

Grandparent visitation must be sought by the grandparents, a parent’s attorney cannot do that on their behalf. D.R.V. Even if the parent and grandparents have a common goal, they cannot share the same attorney in the same proceeding, as technically their interests are adverse.

Deference to Parents – Troxel vs. Granville

A 2000 U.S. Supreme Court ruling provides that states cannot confer unfettered grandparent visitation rights, but instead they must be balanced against the parents’ rights. Troxel. SCOTUS 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.

Colorado Implements Troxel for Grandparent Rights

There have been multiple cases litigated in Colorado appellate courts since Troxel, with courts struggling how to apply the standard and give due deference to parents. Finally, the definitive word came from the Colorado Supreme Court in 2006. C.A.

The Court stated: “a dispute between parents and grandparents regarding grandparent visitation is not a contest between equals.” On the contrary, grandparents seeking visitation rights had three hurdles to overcome:

  • A presumption in favor of the parental grandparent visitation determination.
  • The grandparents must show, by clear and convincing evidence, that the determination is not in the child’s best interests.
  • The grandparents must show, by clear and convincing evidence, that the visitation schedule they seek is in the child’s best interests.

In 2023, Colorado amended the grandparent visitation statute to incorporate the C.A. standard, so the statute now provides

“In 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.”

C.R.S. 14-10-124.4(4).

Clear and convincing evidence” is a high burden. Most civil cases are “preponderance of the evidence”, which simply means a fact is more likely than not to be true (i.e. greater than 50%). “Clear & convincing evidence” is higher than the preponderance standard which normally applies to civil cases, but lower than the super-high beyond a reasonable doubt standard used in criminal cases. Here is a Colorado jury instruction on this standard:

“A fact or proposition has been proved by ‘clear and convincing evidence’ if, considering all the evidence, you find it to be highly probable and you have no serious or substantial doubt.”

I tend to think of clear & convincing evidence as requiring proof to about a 75-80% certainty.

Parents Disagree as to Grandparent Visitation

Sometimes the child’s parents will disagree as to whether the grandparents should be awarded visitation rights. In those cases, the Colorado Court of Appeals held that “only the opposing parent’s Troxel presumption is implicated. Thus, the grandparents must overcome the Troxel presumption of the opposing parent.” O’Connor, ¶ 4. For a complete discussion of the O’Connor case, see our Grandparent Visitation When Parents Disagree – Who Decides? blog post.

Modifying a Grandparent Visitation Order

The grandparent family time statute provides that the family court may “establish, modify, or terminate grandparent family time if the order would serve the best interests of the child.” C.R.S. 14-10-124.4(7).

And if the court does establish grandparent/great-grandparent visitation, any future change to the parent’s own parenting time will not affect that ordered time unless it is in the children’s best interests to modify the grandparent visitation. C.R.S. 14-10-124.4(8).

Even once a court has granted grandparent visitation, should the parent(s) seek to modify or terminate it, the grandparents must still follow the C.A. burden of proof, and show by clear & convincing evidence that the proposed modification is contrary to the child’s best interests. A.M. This means that in a future modification hearing a grandparent who was previously granted visitation rights is literally not “grandfathered in”, and cannot avoid having to “re-prove” the grandparent visitation case by clear & convincing evidence.

Disputes Concerning Grandparent Visitation

Appointment of Child’s Legal Representative

New in 2023, courts have statutory authority to appoint a Child’s Legal Representative (CLR) in grandparent visitation cases to represent the best interests of the child. C.R.S. 14-10-124.4(5). However, the statute is silent on whether other parenting experts such as a Parental Responsibilities Evaluator (PRE) or a Child & Family Investigator (CFI) may be appointed.

Logically, when the Assembly added authorization to appoint a CLR, had they intended for judges to be able to appoint any other experts, they would have included a broader range of experts who can be appointed. That omission almost certainly means that no other parenting experts are authorized in grandparent visitation cases.

Parent Allegedly Violating Grandparent Visitation Order

Once the grandparents have obtained a visitation order from the court, if they believe that the child’s parent is violating their grandparent family time, they can file a verified motion with the judge containing specific allegations. C.R.S. 14-10-124.5(1). If the allegations are adequate, the court can set the matter for a hearing, or order mediation before a hearing.

If the court finds a violation of the grandparent family time order, the judge can enter appropriate orders, including imposing additional terms/conditions, modifying the prior order, punishing the parent for contempt, attorney’s fees, and, probably most important, ordering make-up visitation similar to the missed visitation within the next year.

Effect Of Adoption On Grandparent Visitation Rights

Colorado grandparent rights are terminated by the child’s adoption, or termination of the parental rights of both parents. N.S. However, in a step-parent adoption situation where one natural parent still has parenting rights, the grandparent visitation of the parent whose rights were terminated still survives the adoption:

“There is nothing in the legislative enactment to indicate that the adoption exclusion was intended to apply to a situation in which the child remains with, and in the legal custody of, a natural parent. Thus, we conclude that where, as here, a grandparent has visitation rights pursuant to § 19-1-117(1)(a) and the grandchild is adopted by her natural parent’s new spouse, the grandparent’s rights to visitation are not automatically terminated by operation of § 19-1-117(1)(b).”

Aragon, at 421 (referring to the prior version of the grandparent visitation statute)

Are Grandparent Visitation Rights Dead in Colorado?

No. While grandparent visitation is not technically gone in Colorado, it’s far from easy to win such rights, and is harder than it used to be. And whether grandparent rights are awarded depends as much upon the judge assigned to a case than it does to the evidence presented. Sadly, this means “luck of the draw” may be the deciding factor – Graham.Law attorneys have seen grandparents with a history of active involvement lose their visitation case, and weak grandparent rights cases prevail.

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.

Grandparent Custody Over Children

In a grandparent custody situation, as opposed to one where grandparents merely have visitation rights, the grandparents are seeking to actually raise their grandchildren in lieu of the parents. It is not uncommon for grandparents to end up raising their grandchildren, and they may therefore seek to have primary parental responsibility (i.e. “custody”) over the children.

Grandparent custody rights are not automatic. Rather, like a parent seeking custody, the judge must first determine whether the grandparent would be a suitable custodian. Courts may consider any credible evidence of past child abuse or neglect by the grandparent in determining whether to award custody.

There are three primary avenues through which a grandparent in Colorado may obtain custody over a grandchild.

DHS Dependency & Neglect Proceeding

If the authorities remove a child from a parent’s home, under C.R.S. 19-1-115 grandparents in Colorado have preference for the child’s placement over other potential foster parents (but the other parent has preference over the grandparents).

Note that a grandparent has a statutory right to intervene, per C.R.S. 19-3-507, and unlike with grandparent visitation, grandparents may intervene in a D&N case even if the child has never been in their care. O.C.

Grandparents Have Physical Care Of Child

Any person, including a grandparent, with actual physical care of the child can petition a Colorado family law court for allocation of parental responsibilities in Colorado. C.R.S. 14-10-123. And the judge will determine whether it is in the child’s best interests to award visitation to that third party.

Physical Care Within Past Six Months

Any person, including a grandparent, who had physical care of the child for at least 6 months, within 6 months of the termination of the physical care, can petition a Colorado family law court for an allocation of parental responsibilities. C.R.S. 14-10-123.

Consider Allegations of Abuse by Grandparents

This should go without saying, but there is an entire statute which provides that when a grandparent is seeking parental responsibilities (i.e. more than visitation), the court “shall consider any credible evidence of the grandparent’s past conduct of child abuse or neglect.” C.R.S. 14-10-123.3.

Curiously, this statute does not on its face apply to requests for grandparent visitation (“grandparent family time”), but it would be inconceivable that any judge determining the best interests of the child would disregard credible evidence of abuse in those cases as well.

Grandparent Payment of Child Support

Normally, a grandparent who is awarded grandparent visitation pursuant to the visitation statute will not have to worry about paying child support. But where the grandparents have sought parental responsibilities under C.R.S. 14-10-123 on the grounds that they have raised the children and may be psychological parents, then Colorado courts have required such third party non-parents to pay child support.