Fact: In the United States, grandparents do not automatically enjoy legal rights to visit their grandchildren or gain custody of their grandchildren.
This is an interesting fact given that a 2011 study found that grandparents were the primary caregivers for 3 million of the children in the county and a second study determined that 1 out of every 10 U.S. children lives in an extended household that included one or more grandparents. Certainly grandparents play an important role in a child’s upbringing, but what if a parent just does not want grandparent input or does not want the child to have a relationship with his/her grandparent at all?
Each state has its own laws in place regarding the extent to which a grandparent may petition a court for visitation with a grandchild. Some states are very lenient while others barely allow grandparent any standing to bring the issue before a court of law. Colorado is middle-of-the-road on the issue of grandparent rights to visitation and child custody. In Colorado, section 19-1-117 of the Children’s Code in Colorado Revised Statutes covers grandparent visitation and it does not provide a particularly broad remedy to grandparents. The crux of the Colorado Children’s Code is that a court shall determine whether its ruling or decision would be in the “best interest” of the child. This is the standard by which most courts across the country decide. In deciding the “best interest” of a child, a court will consider the totality of the evidence and circumstances surrounding the grandparents’ request.
Prior to a grandparent even considering a motion to the court for visitation in Colorado, there must be an already existing or open legal action in process. From there, there are legally three situations in which a grandparent may raise the issue of visitation of a grandchild with a court:
- Child custody has been granted to someone other than the child’s parents (not including adoptions);
- The parents’ marriage was annulled or the parents are otherwise divorced or legally separated; and,
- The child’s parent (the grandparent’s child) is deceased.
With respect to grandparent rights to custody or “parental rights” of a grandchild, courts in Colorado are somewhat more limiting. The controlling source of law is the Uniform Dissolution of Marriage Act (UMDA), particularly section 14-10-123. Grandparents may petition a court for parental rights if the grandchild is not under the physical care of his/her own parent or where the grandchild has been under the physical care of a grandparent for six months or more. If a grandchild was under a grandparent’s physical care for six months and that arrangement terminated, a grandparent may file for parental rights so long as the petition is filed within six months of the termination. In most cases, the proper motion to file is called a Motion for Allocation of Parental Responsibilities.
From a practical standpoint, in many cases courts tend to rule in favor of grandparent visitation, particularly in cases where the child’s parents are fairly young and dependent financially or emotionally on their own parents (the grandparents). Courts appear to see a benefit in a child being cared for both at a nuclear level and via extended family, and this makes logical sense. Because the laws surrounding grandparent rights are not exactly black and white in Colorado courts, any grandparent may benefit by speaking to a local attorney who can help clarify the issues and determine a strategy in those cases where a grandparent’s situation may fit the statutory parameters for grandparent visitation and custody.