Colorado Appellate Court Considers Great-Grandparent Visitation

May 14, 2013

333066_nana.jpgAn area that can present a cause for concern in Colorado child custody cases is the question of grandparent visitation. Can grandparents request visitation with their grandchildren through a judicial process just as a divorced parent asks for parenting time with his or her child? Colorado gives grandparents more legal rights than many states do, but these rights are still limited. A grandparent can bring a case to court only under certain circumstances.

Colorado Revised Statutes 19-1-117 controls this issue, stating that a grandparent can seek judicial recourse under such conditions as: (1) the parents are legally separated or divorced and there has been a child custody case, (2) custody of the child has been given to someone other than the parents, (3) the marriage of the parents is annulled, or (4) the child's parent who is the child of the grandparent dies.

Additionally, grandparents cannot sue for visitation merely because they are estranged from the parents. The grandparents bear the burden of proving by clear and convincing evidence that a parent who wants to deny them visitation is not acting in the child's best interests and also that visitation would be in the child's best interests.

Colorado courts also look at a parent's rights in these visitation cases. An unusual but instructive discussion came up in an appellate case earlier this year In re Parental Responsibilities, MDE. In that case, a great-grandmother sued for visitation under the grandparent statute when her granddaughter got a divorce.

The child's mother had filed a petition to have the parental responsibilities allocated in May 2009. The court entered permanent orders and a parenting plan resolving the parents' dispute but they did not mention the great-grandparent. Over six months passed. The great-grandmother then brought a motion to intervene and a motion for grandparent visitation. She argued that she should logically have grandparent rights under the statute even though she was a great-grandparent.

The father opposed her motion saying she did not have the right to intervene under the statute because a great-grandparent was not the same thing as a grandparent. A magistrate heard the motion and reasoned that even though "grandparent" is defined by the statute as "a person who is the parent of a child's father or mother, who is related to the child by blood, in whole or by half, adoption, or marriage," the Children's Code (the code that allows certain grandparent visitations) was to be liberally construed in the best interests of the child. He ruled that the great-grandparent should be allowed to intervene and a hearing should be had on whether visitation with her was in the child's best interests.

The father asked the district court for a review of the magistrate's order. The district court agreed with the magistrate. Accordingly, the father asked the Colorado Court of Appeals to review the decision.

The appellate court ruled that a great-grandparent did not have standing or the right to seek visitation rights. It reasoned that to rule otherwise would permit eight great-grandparents in addition to four grandparents to unduly infringe on parents' fundamental rights to make decisions concerning the care, custody, and control of their children. In a footnote, the court cited a few states that do expressly permit great-grandparents to seek visitation.

The issue of great-grandparent visitation is rare now, but it may become a bigger issue in Colorado in future years as lifespans increase. While parents' wishes are given deference if they are still together, a divorce or separation or death can lead to more difficult legal questions. These issues may need to be resolved with the assistance of a skillful and diligent family lawyer. If you are dealing with difficult visitation and family law issues like the case described above, contact the experienced Denver family law attorneys of Plog & Stein.