Pursuant to Colorado child custody statutes, specifically C.R.S. 14-10-123, non-parents can seek custody of a child in certain situations. Non-parents includes grandparents, though just because they are relatives of the child and grandparents does not mean they are given any greater, preferential treatment as it relates to whether they meet the legal standards to seek custody.
Grandparents may seek parental responsibilities of a child if the child is either presently in their physical care or not in the care of either parent. The legal process can be started via either the filing of a brand new Colorado child custody case or moving to intervene into a divorce or custody case in which custody has already been allocated between the parents. The other circumstance in which grandparents can seek custody would be one in which the child had been in their primary physical care for six months or more, had left their care, but less than six months had passed since that point.
Alternatively, grandparents may intervene in a case to seek visitation with their grandchildren pursuant to C.R.S. 19-1-117, which provides: “(1) Any grandparent or great-grandparent of a child may, in the manner set forth in this section, seek a court order granting the grandparent or great-grandparent reasonable grandchild or great-grandchild visitation rights when there is or has been a child custody case or a case concerning the allocation of parental responsibilities relating to that child.”
After this statute was enacted, however, the United States Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000), held that the Due Process Clause prevents the government from intruding on fundamental rights and liberty interests, one of which is the liberty interest that parents have in controlling the care and custody of their children. Accordingly, the state may not give rights to any third party to challenge any decision by a parent regarding visitation with that parent's child in state courts.
This would seem to trump the grandparent visitation statute. However, in In re Adoption of C.A., 137 P.3d 318 (Colo. 2006), the Colorado Supreme Court explained that C.R.S. 19-1-117 and the Troxel decision may co-exist. Specifically, the Court read this section as requiring that the biological parent's decisions concerning grandparent visitation must carry special weight and significance in the adjudication of the grandparent's visitation petition. The burden of proof must be such that the parent need not prove that the grandparent visitation would adversely affect the child. To rebut the due process presumption in favor of parental visitation determination, grandparents must now demonstrate by clear and convincing evidence that visitation schedule they seek, and not parental determination, is in child's best interests.
In order to intervene as grandparents, you can file either a Motion to Intervene pursuant to Rule 24 of the Colorado Rules of Civil Procedure in an already existing case, or file a Pleading Affidavit to request grandparent or great-grandparent visitation in a new Juvenile (JV) action where the child’s parent, who is the child of the grandparent or grandchild of the great-grandparent seeking visitation, has died. No grandparent or great-grandparent may seek an order granting visitation rights more than once every two years, without court approval.
Please contact the Domestic Team at Feldmann Nagel Margulis for all of your family law needs.