Under Colorado Revised Statute 19-1-117, a grandparent can Petition the court for reasonable visitation rights with the grandchild. However, it isn’t easy and there are several requirements that need to be satisfied, before the grandparent can even rightfully file the Petition.
The first requirement is that there must be an existing case concerning the parents and the child already commenced with the court. The grandparent cannot file a Petition in a new action to start the proceedings regarding the grandparent visitation. For instance, if the parents have separated or have never been married and simply have an agreement regarding custody and visitations without ever going to court, the grandparent does not have the legal right to visitations or the right to file a request with the court. Moreover, the requirement for the case to be existing within the court doesn’t mean that the case had to have addressed the custody issues or visitations for the parents. It can be a case that just deals with the dissolution of marriage. The court’s rational is that even if the case doesn’t address the custody or visitations for the parents, the divorce itself still affects the child, and therefore, is relevant to the child’s well being.
According to the Statute, if there is an existing case, the grandparent can seek a court order granting visitation rights in the following situations:
- The marriage of the parents has been declared invalid or has been dissolved by a court, or the court has entered a decree of legal separation;
- The legal custody or parental responsibility has been given or allocated to someone other than the parent or the child has been placed outside of the parent’s home; this does not include adoption situations and keep in mind that once the adoption has been legally finalized, the grandparent does not have any legal rights for visitations; OR
- The child’s parent, who is the child of the grandparent seeking visitation, has died.
If the grandparent’s situation meets the above requirements, the grandparent, along with the proper motion for visitation, must also include an affidavit that describes specific facts supporting the request for visitations. A notice of the filing, along with a copy of the affidavit, must be given to the party who has legal custody or the party with parental responsibility, as determined by the court. Naturally, the parent or the party with legal custody or parental responsibility may file an opposing affidavit and either party can request a hearing before the Judge. A hearing is not automatic and the party must either request it or the court may decide on its own that it is in the best interest of the child for the hearing to be held. Otherwise, the court will base its decision solely on the affidavits that were filed by the parties, so it’s extremely important that the affidavit is as detailed and factual as much as possible. Remember that under the Colorado law, a grandparent may not file a request for visitation more than one time every two years, unless there is a good cause; so if you file it the first time, make it count.
The court will use the “in the best interest of the child” standard when evaluating grandparent’s request for visitations. The burden is on the grandparent to show by clear and convincing evidence that it is in the best interest of the child for the visitations to be granted. This burden is not easy to meet. It means that the grandparent must show the court that there is a high probability of the truth of the facts that he or she is offering to the court to show that the visitations are in the child’s best interest. In the affidavit that is required to be filed, you must show as many details as possible about your relationship with the grandchild. If there is already a relationship established between the grandparent and the child, list in the affidavit specific events you went to together, specific memories you share together, describe the child’s behavior and mental state of mind when you are together, describe the frequency of your contact with the child prior to filing the request, etc. Include as much detail as possible to let the Judge know the dynamic between you, the grandparent, and the child and how it will not be in the child’s best interest to terminate that relationship. Reality is that the judge doesn’t know you, doesn’t know the child when their with you, so it’s your responsibility to paint that picture for the court. If the relationship has not been established, describe why and what are the circumstances.
Pay attention that you only describe how developing a relationship with the child will be beneficial to the child, not to you. Remember, the court is concerned with the child here, not you and your needs as a grandparent. Finally, show the court that the schedule you are proposing is reasonable and in the best interest of the child and that it will not interfere with the parent’s relationship and visitations. The court will not allow for the child’s movements to be restricted just for the visitations with a grandparent. So when drafting the affidavit and/or testifying in court, make sure you focus on the child, state as many facts and examples as possible to familiarize the court with your relationship (or the need for one) and how it will benefit the child.
As stated, obtaining visitations for the grandparent isn’t easy, but it is doable. If you need assistance with a family law issue, please contact the domestic team at Feldmann Nagel Margulis.