The United States Supreme Court in Troxel v. Granville, set the burden of proof for grandparents very high. The 2000 Supreme Court opinion of Troxel v. Granville, 530 U.S. 57 (2000), limited grandparent visitation orders by holding that parents’ due process rights impose a “special weight,” a burden on the grandparent to overcome parental wishes when the court has before it a grandparent visitation petition. In acknowledging the presumption that fit parents act in the best interest of their child and noting that the 14th Amendment guarantees parents a fundamental liberty interest in the care, custody and control of their children, the Troxtel court held that a fit parent’s decision should be given special weight and to do anything less would be unconstitutional state interference.
The Troxel case ultimately ruled that it was a violation of parental consitutional rights to force parents to give parenting time to grandparents, but Colorado does provide some leeway to grandparents. In Colorado, Grandparent Rights are governed by two applicable statutes: 19-1-117, C.R.S. and 14-10-123.
Colorado Revised Statute 19-1-117 allows grandparent visitation orders to be issued for a grandparent when there is or has been a child custody case or a case concerning the allocation of parental responsibilities relating to that child. Cases concerning the allocation of parental responsibilities relating to children include dissolution of marriage cases, cases where legal custody or parental responsibilities have been given to a party other than the child’s parent, or when the child’s parent has died. According to the statute, the court shall order grandchild visitation only upon a finding that such visitation is in the best interests of the child. In these sorts of cases, the Colorado Supreme Court has held that the appropriate standard for issuance of an order for grandparent visitation under 19-1-117, C.R.S., requires the following:
(1) A presumption in favor of the parental visitation determination;
(2) To rebut this presumption, a showing by grandparents through clear and convincing evidence that the parental visitation determination is not in the child’s best interests; and
(3) Placement of the ultimate burden on grandparents to establish by clear and convincing evidence that the visitation schedule they seek is in the best interests of
19-1-117, C.R.S., applies to grandparents only and is for visitation rights only. However, 14-10-123, C.R.S., permits any third party to petition the court for visitation rights and parenting time. To obtain standing under this statute, the child must not be in the physical care of the parent, or the non-parent must have had physical care of the child for six months or longer, and the petition must be filed within six months of the termination of the non-parent’s physical care of the child. It should be noted that case law has established that merely arguing it would be beneficial for the grandchild to know the grandparent is not enough to override the presumption of parental determination of visitation.
Whether you are trying to establish rights as a grandparent or fighting against it, it is advisable to seek legal counsel.
*This blog is for educational purposes only. This does not serve as legal advice nor does it create an attorney-client relationship.