In Colorado, grandparents generally have the right to see their grandchildren. However, the circumstances for visitation depend on a number of factors specific to the case, such as the child’s best interests and who has custody of the child. In today’s blog, we will discuss how grandparents may be granted visitation in Colorado.
Asking for Visitation
When parents freely allow grandparents to visit with their grandchildren, grandparents do not need to seek official court-ordered visitation. Grandparents may seek visitation rights, though, when there has been a custody case involving the children, such as when any of the following occur:
- the child’s parents divorce, separate, or seek annulment;
- a court awards legal custody to someone other than the child’s parents, or the child is placed outside the parents’ home (excluding adoption); or
- the child’s parent who is the grandparent’s child dies.
Grandparents can seek visitation when any of the above occur, regardless of whether custody is an issue in a pending court case. Paternity cases also create an opportunity for grandparents to seek visitation rights.
Grandparents seeking visitation rights must file a motion for visitation in the district court of the county where the child lives. They can file the motion in an active custody case, or in a new case if no custody case is currently pending. The motion should include an affidavit stating the facts that have occurred that give the grandparent the right to ask for visitation, and the grandparent must serve a copy of the motion on the person who has legal custody of the child. Grandparents can’t seek visitation with grandchildren more than once every 2 years unless there is good cause, such as the death of a parent or the parents’ divorce. Note that in Colorado, great-grandparents can’t seek visitation rights.
Child’s Best Interests
Courts deciding grandparent visitation rights cases must determine whether the requested visitation is in the child’s best interest. In certain cases, the judge must also weigh a parent’s objection to grandparent visitation against the potential benefit of the grandchild-grandparent relationship.
A court deciding whether to grant grandparent visitation begins with the presumption that the child’s parent is acting in the child’s best interests. In other words, when a fit parent objects to a grandparent’s visitation request, the court will typically defer to that decision. The grandparent must prove clearly and convincingly that the parent’s visitation decision isn’t in the child’s best interests, and they must also show that the visitation schedule they request is appropriate for the child.
Judges consider several factors when deciding whether grandparent visitation is in a child’s best interest and benefit. For example, one judge denied maternal grandparents’ visitation because they often criticized the child’s father during visits, causing the children stress and undermining the father’s authority. In another example, a court denied a grandmother visitation who wanted to take the children to church because her daughter didn’t take them; however, grandparents can’t use visitation to overrule a parent’s decision on religion.
Note that a court order terminating a parent’s visitation doesn’t automatically terminate the grandparent’s visitation rights. For example, if a court terminated a mother’s visitation time due to misconduct, the maternal grandparent’s visitation could still continue.
Impact of Adoption
Keep in mind that adoption by a stepparent does not terminate a grandparent’s court-ordered visitation. For instance, if a paternal grandparent has visitation with a grandchild, and the child’s mother’s new spouse adopts the child, the paternal grandparent can still exercise visitation with the child. (However, if the child’s father no longer had custody because a court has terminated his custodial rights, the paternal grandparent’s visitation will automatically end).
On the other hand, if a person other than the child’s stepparent adopts a child, grandparent visitation will terminate, as the adoption severs not only the relationship between the child and the child’s natural parents, but all the natural parent’s relatives as well. Note that even adoption by a cousin, aunt, or uncle terminates grandparent visitation. The one exception is when the child is adopted after the child’s parent dies (e.g., when a maternal aunt and uncle adopted a child in Colorado after the child’s parents died, grandparents’ visitation may continue).
When a judge determines that there is no fit natural or adoptive parent to have legal custody of a child, the court can grant custody to a grandparent, depending on the situation. The grandparent must be willing and able to care for the child and have appropriate parenting abilities.
Grandparents may also receive temporary custody of a child in certain circumstances. When a child is removed from a parent’s home due to the parent’s misconduct or inability to care for the child, the department of human services in Colorado will give a grandparent first preference for temporary custody when the parents are unable to have custody.
Seek an Attorney for Legal Guidance
If you have questions about grandparents’ visitation rights in whatever custody circumstances the child is in, consult an attorney for legal guidance. Grandparents are generally granted custody if it is in the child’s best interests and as it is permissible by the child’s parents. There are limiting circumstances, though, and it is best to speak with a lawyer about your case in particular to learn about your specific rights.
Contact the Law Office of Alexandra White, P.C. for a consultation to discuss your case today.