Most of the family law cases involving grandparents fit into one of two categories: grandparent visitation and grandparent custody. Grandparent visitation is when a grandparent seeks court-ordered visitation time with a grandchild. Grandparent custody is when grandparents seek physical custody of a grandchild; that is, when a grandparent seeks to become the primary person responsible for the physical safety and emotional welfare of the grandchild. Today’s post will deal with the subject of grandparent visitation. I will take up the issue of grandparent custody in the future.
In a perfect world, parents would be and remain married and children would maintain a close relationship with all extended family members. In the real world, of course, this is not always the case: sometimes parents never get married; sometimes they divorce; sometimes a parent dies before children reach adulthood; and sometimes the parents are incapable of acting in anyone’s best interest except their own. In general, we like to think that children benefit from close and loving relationships with their grandparents. Occasionally, however, the parents and grandparents do not get along well, and parents prevent the children from seeing the grandparents. In some situations, the parents are acting in their children’s best interests because there are legitimate reasons why contact with grandparents would be detrimental to the best interest of the children. In other cases, the parents place their owns motivations above the best interests of the children, and prohibit contact that would be good for the children.
The Colorado Children’s Code contains procedures that grandparents may follow to obtain court-ordered visitation with grandchildren. However, grandparents’ rights are limited by the United States Supreme Court’s recognition that a fit parent has the right to decide–without interference from the state or the courts–with whom their children may interact. There is a legal presumption that a fit parent acts in a child’s best interest; and so, if a parent decides that his or her child should not have contact with a grandparent, the law presumes that the parent must have a good reason for that. Hence, the grandparent will have the burden to persuade the court by clear and convincing evidence that the parent is either unfit or is not acting in the child’s best interest. (As an aside, in most situations, if a grandparent feels that a parent is unfit, the grandparent should not be seeking visitation but custody.)
Section 19-1-117 of the Colorado Children’s Code sets forth the procedures for grandparent visitation, including the requirements for standing and the grounds for relief. Standing is the legal ability to bring a claim for relief to the courts. For grandparents to have standing, there must be a divorce or child custody action between the parents. This can be a presently open case or an order granted in the past. If the parents of the grandchildren are still married and have not filed for dissolution of the marriage or the allocation of parental responsibilities, then the grandparents do not have standing to seek visitation. If the parents have never been married and have never filed an action for the allocation of parental responsibilities, then the grandparents do not have standing. There are exceptions to this when a grandchild has been placed outside of the home of the parents (other than when they have been placed for adoption), and when a parent has died, and that parent is the child of the grandparent.
If the grandparent does have standing, they may file in the district court a motion for visitation, along with an affidavit setting forth the grounds and facts of their motion. The affidavit must show, by clear and convincing evidence, the reasons why the grandparents are seeking visitation, and must demonstrate that the parent who is denying the contact with the grandchildren is either not acting in the children’s best interest or is unfit. The Courts will judge each case on its own facts and merits. Therefore, it is important that each party sets forth the facts and evidence as persuasively as possible.
If you are a grandparent, and your children will not let you spend time with your grandchildren, call me to discuss your case. I may be able to help.
Likewise, if you are a parent, and your own parents or your child’s other grandparents are seeking a court order for visitation, call me right away. I can help you present your case, and show the Court the reasons why you believe it would not be in your child’s best interest for the grandparents to have visitation rights. Call me today.