GRANDPARENT VISITATION

A grandparent’s loving relationship with his or her grandchild can often result in lifelong positive benefits for both the grandparent and the grandchild. However, Colorado law has strict requirements concerning a grandparent’s right to visitation. A grandparent may only obtain visitation rights in specific circumstances, and must strictly adhere to the procedural requirements for seeking a visitation order. The grandparent seeking visitation faces a very high legal hurdle if the child’s parent objects to the grandparent’s visitation request.

This article explains the legal nuts and bolts of grandparent visitation in Colorado.

Legal prerequisites for grandparent visitation

In Colorado, grandparents and great-grandparents may obtain reasonable visitation rights only if there is or has been a “child custody case or a case concerning the allocation of parental responsibilities [APR] relating to the child.” This includes any of the following situations, whether or not child custody or parental responsibilities were specifically an issue:

  • the marriage of the child’s parents has been legally dissolved;
  • legal custody or parental responsibilities for the child have been given to a party other than the child’s parent;
  • the child has been placed outside of the home of the child’s parent, excluding any child who has been placed for adoption or has been adopted;
  • the child’s parent, who is the child of the grandparent or grandchild of the great-grandparent, has died. No court case relating to the death of the child’s parent is necessary.

Procedural requirements for grandparent visitation

If a child custody or APR case is pending, the grandparent seeking visitation should request permission to intervene in the action for the purpose of seeking grandparent visitation. If the court denies the request for intervention, the grandparent should file an independent action for visitation in the district court. The procedure for requesting visitation is the same in both cases:

  • The grandparent must file a motion for visitation and an affidavit setting forth the facts supporting the request.
  • The person with legal custody or parental responsibilities may file an opposing affidavit.
  • If either party requests a hearing or if the court determines that a hearing is necessary, a hearing will be held and the parties who submitted affidavits are given an opportunity to be heard.
  • The court may enter an order granting grandparent visitation only if it finds that such visitation is in the best interests of the child.

If a parent objects to grandparent visitation

The Due Process Clause of the 14th Amendment to the U.S. Constitution protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. As long as a parent adequately cares for his or her children, there is normally no reason for the state to intervene in the family’s affairs and question the parent’s ability to make the best decisions concerning the children.

In Colorado, there is a rebuttable presumption in favor of the parent’s decision regarding grandparent visitation. The parent’s decision regarding grandparent visitation is accorded “special weight” and will be honored by the court unless the grandparent establishes, through clear and convincing evidence, that the parent’s visitation decision is not in the child’s best interest or that the parent is unfit to make the visitation decision. This “special weight” requirement does not apply to legal guardians, only to biological or adoptive parents.

If the court grants grandparent visitation over the parent’s objection, it must issue findings of fact and conclusions of law identifying the special factors it relied on to overrule the parent’s objection.

Modification of a grandparent visitation order

The court may modify or terminate the grandparent’s visitation rights if it would serve the best interests of the child.

Survival of grandparent visitation rights following the termination of the parents’ parental rights

An order granting or denying parenting time rights to a parent of the child does not affect the grandparent’s visitation rights. But, an involuntary termination of the parents’ parental rights eliminates a grandparent’s right to visitation. An exception is when the involuntary termination of the parents’ parental rights is due to the death of the parents as opposed to a legal termination. In that scenario, the grandparent’s visitation rights survive the termination of parents’ parental rights.

Similarly, if the child is adopted and the natural parents’ legal rights with respect to the child are legally terminated, grandparent visitation rights are terminated. This is true even if the adoptive parents are relatives of the child, such as the child’s other grandparents. An exception is when the child is adopted as a result of the death of the parents as opposed to a legal termination of their parental rights. In that scenario, the grandparent’s visitation rights do survive a final adoption.

Penalties for refusing to comply with grandparent visitation order

If a court finds that the person with legal custody or parental responsibilities of the child has not complied with the visitation order or schedule and has violated the court order, the court, in the best interests of the child, may issue orders which may include but need not be limited to:

  • Imposing additional terms and conditions which are consistent with the court’s previous order;
  • Modifying the previous order to meet the best interests of the child;
  • Requiring the violator to post bond or security to insure future compliance;
  • Requiring that makeup visitation be provided for the aggrieved grandparent or great-grandparent and child under the following conditions:
    • That such visitation is of the same type and duration of visitation as that which was denied, including but not limited to visitation during weekends, on holidays, and on weekdays and during the summer;
    • That such visitation is made up within one year after the noncompliance occurs;
    • That such visitation is in the manner chosen by the aggrieved grandparent or great-grandparent if it is in the best interests of the child;
  • Finding the person who did not comply with the visitation schedule in contempt of court and imposing a fine or jail sentence;
  • Awarding to the aggrieved party, where appropriate, actual expenses, including attorney fees, court costs, and expenses incurred by a grandparent or great-grandparent because of the other person’s failure to provide or exercise court-ordered visitation.

An aggrieved party may also have the right to a bring an independent legal action in tort.

Additional considerations

A grandparent who has visitation rights may not interfere with the custodial parent’s wishes regarding the religious training or upbringing of the child.

A grandparent may not file a motion seeking visitation more than once every two years absent a showing of good cause.

The court may order reasonable attorney fees to the prevailing party in the grandparent visitation case.

The court may not make any order restricting the movement of the child if the restriction is made solely for the purpose of allowing the grandparent the opportunity to exercise his or her grandchild visitation rights.

Conclusion

Colorado law regarding grandparent visitation is complex. A grandparent seeking visitation must comply with all substantive and procedural requirements, and faces a uphill battle if one of the child’s parents objects to the grandparent’s request for visitation. Once a visitation order is in place, the child’s parent or guardian faces severe penalties for failing to comply with the visitation order.