Grandparents’ Rights to Custody & Visitation in Colorado
You may have heard of grandparents’ rights, but wonder what those rights are. Can grandparents take custody of their grandchildren or see their grandchildren against their parents’ wishes? In Colorado, grandparents’ rights do exist, but they’re limited.
What are grandparents’ rights?
Grandparents’ rights include both a potential right to “visitation” and a potential right to “custody.” The courts in Colorado understand that grandparents’ involvement with their grandchildren is important and necessary if it’s in the children’s best interests. However, whether a grandparent has the right to visitation with their grandchildren depends on several circumstances.
While the details can vary, grandparents’ rights generally consist of two steps. First, the grandparent has to establish that one of the “qualifying circumstances” exists under Colorado law allowing for grandparent visitation rights. Second, the grandparent must file a motion with the court along with an affidavit “setting forth facts supporting the requested order.”
Grandparents may have rights and request visitation when:
The child’s parents are already or currently having their marriage dissolved (divorced), separated, or annulled. (Any case where parenting time is determined is a qualifying circumstance.)
Custody of the child has been given to someone other than the child’s parent (a third party).
The child’s parent has passed away (but only if it is the parent that is your child).
Although these two steps are important, whether a grandparent has a right to custody is far more complicated.
How do grandparents’ rights work in general?
If you are a grandparent and the parents of your grandchildren are alive, healthy, and the children live with them, then the children’s parents have the ultimate right to decide whether you can spend time with them. However, there are exceptions. If you meet certain criteria and can prove that grandparent time is in the child’s best interest, then visitation or custody may be granted.
What are the exceptions for grandparents’ rights?
If the child’s parents are (1) currently divorcing or (2) are divorced already and (3) a court has issued orders regarding custody and parenting time of your grandchild, then you can move to ask for visitation rights. Along with the motion, you must also submit an affidavit setting forth the facts that support your request for visitation. The motion and the affidavit form the basis for your request to the court.
Besides a divorce case, grandparents may also be allowed to intervene if there’s a legal separation, annulment, allocation of parental responsibility, dependency and neglect, paternity, or a probate action where a child’s parent has died, or someone is acting as a guardian.
Once you file the motion, the parents may file a response and include their own affidavits. If you or the parents ask for a hearing, the judge must conduct a hearing where both sides will present evidence supporting their position. A hearing will happen in almost all cases.
The judge then decides whether visits with you are in the children’s best interests. If the parent or parents object, their wishes concerning visitation with you are given special weight.
A court can only override the parent’s wishes if the presumption that a parent is acting in their child’s best interests is overcome by clear and convincing evidence. The burden is on the grandparents to show that parenting time with them is in their grandchildren’s best interests despite the parent’s objection.
What’s the difference between grandparent custody and visitation?
If you ask for grandparent rights and the court grants your request, the parents still keep their rights to make decisions for their kids. As a grandparent, your rights are to see your grandchildren on the schedule identified by the judge, not to make decisions for them.
However, if your grandchildren live with you, have lived with you for at least six months, or no more than 182 days has elapsed since your grandchildren last lived with you, you can file an independent action and ask the court to give you parental responsibilities (custody). These heightened rights include parenting time and decision-making responsibility. The process to seek custody is different because you must submit a Petition for Allocation of Parental Responsibilities asking the court to award custody of your grandchildren within 182 of the physical care ending.
If either of the children’s parents objects, you must present clear and convincing evidence that your proposed custody schedule is in the grandchildren’s best interests. The law presumes that the parents are acting in your grandchildren’s best interest, so you need to present powerful evidence to the contrary if the parent objects.
If the court awards you parental responsibilities, then you have all the rights and duties that a parent would have. This means that you may make all major decisions for your grandchildren, including educational and medical decisions. You also get to decide who the children spend their time with, including their parents or other grandparents.
How does the court order work?
If a court grants your request for grandparent visitation, the judge will set a visitation schedule and it will become an order of the court. The schedule and frequency of visitation will depend on the circumstances. For instance, a judge may order visitation one weekend a month, every other weekend, or any other schedule the court thinks is appropriate. Generally, courts look at the historical time that grandparents spent with the child to determine what is appropriate. The court may also provide for vacation time during the summer, depending on the circumstances.
You and the child’s parents can also come to an agreement about your right to visit your grandchildren. If you agree, you’ll still want to seek a court order so that your rights are legally enforceable.
Once the court establishes the schedule, the parents must follow the court’s order. If the parents deny visitation, you can seek enforcement of the order and make the parents comply. However, the court also has the power to end or change your grandparent’s visitation rights. As with any order relating to children, the schedule is modifiable. The court will always look at what is best for the children.
How do I start the process of seeking grandparents’ rights?
If you want to apply for visitation with your grandchildren, first determine whether you qualify to make a request. You qualify if there is a pending case that affects the custody of the grandchildren, there has been a case in the past, even if it is already concluded, or, unfortunately your child passed away..
Once you determine if you can file for grandparent’s rights, you need to find out in which jurisdiction the action is or was pending. There, you’ll file a motion to intervene in the case and then file a motion for visitation, along with the required affidavit.
How does visitation work if the grandparent is out of state?
While living in a state other than Colorado does not preclude grandparents from exercising grandparent visitation, there are more hurdles to overcome than the traditional in-state visitation schedule.
The courts are likely to order that grandparent visitation take place in the state where the minor children reside, especially during the school year. While Colorado Courts are more amenable to grandparent visitation during the summer months, this is largely contingent on the age of the minor children and the ability of the minor children to leave the state to visit their grandparents.
The older the children become, the more their voices will be heard. For example, if a child in high school wants to participate in sports or spend summers with their friends, the court will put more weight into their wishes than they did when the child was younger. On the other side, if a child wants to spend more time with their grandparents as they get older, that will also be considered.
As a parent, how do I stop grandparents’ visitation rights?
A parent can stop a grandparent’s visitation or custody rights fairly easily. The burden on a grandparent to prove that visitation is in the children’s best interest is very high. It’s extremely rare for a grandparent to obtain full custody over their grandchildren, and the facts and circumstances need to be dire. If you want to stop a grandparent from obtaining visitation or custody, the best strategy is to ensure that you are doing everything you can do that is in the child’s best interest.
If you’re navigating grandparents’ rights in Colorado, reach out! Our team at Thrive Family Law is happy to help you decide if we’re the right fit for you.
