In many families, grandparents play a very impactful role in their grandchildren’s lives and it may be in the grandchild’s best interest to regularly see their grandparents. However, absent a court order, a grandparent’s access to his or her grandchildren may be curtailed by the parents. As a grandparent, especially when the grandchild’s parents are no longer in a relationship, it is important to understand your legal rights.
It is important to understand that, no matter how you choose to pursue either visitation rights or parental rights as a grandparent, the Supreme Court has ruled that the Court must always give special weight to the preferences of the parents. Because of the legal complexities associated with grandparent rights, it is always advisable to speak with a family law attorney who is well-versed in these issues before seeking court orders.
Grandparent Visitation
When a family is intact, meaning the child’s parents are both living and there has been no court action taken with regards to the child, grandparents are not permitted to seek a court order permitting them grandparent visitation concerning the child. Instead, the parents are permitted to use their discretion regarding the amount of time the grandparent spends with the child.
Conversely, if one of the following three scenarios does apply, grandparents are permitted to seek court ordered visitation rights under C.R.S. § 19-1-117:
- The grandchild’s parents have obtained a dissolution, annulment, or legal separation;
- The grandchild has been placed into the legal custody of someone other than a parent; or
- The grandchild’s parent, who is the child of the grandparent seeking visitation, has died.
If one of these scenarios does apply, then a grandparent may seek visitation rights. The standard that the court applies as to whether the grandparent should be given legally enforceable visitation rights is whether doing so is in the child’s best interest.
It is important to note that, if the parents were never married and neither party has filed an allocation of parental responsibilities action, grandparents are not permitted to seek visitation. Further, if one parent has passed away but it is not the child of the grandparent seeking visitation of the grandchild, the statute does not permit the court to grant grandparent visitation. Under C.R.S. § 19-1-117, grandparents are not provided actual parental rights over the child. Instead, the parent or parents retain decision-making authority over the child, but the grandparents are provided specific time that the parents are required to allow the grandparent(s) to see the child.
Grandparents Obtaining Parental Rights
There are three other scenarios where a grandparent may be given actual parental rights to a child. Under C.R.S. §19-1-115, when a child is removed from the legal custody of his or her parents, grandparents are given preference when considering alternative persons to be given legal custody of the child.
Additionally, under C.R.S. § 14-10-123, if the grandparent has physical custody of the child and the child is not in either parent’s physical care, the grandparent may initiate an allocation of parental responsibilities action and request being given parental rights over the child, including parenting time, decision-making, and child support. Parental consent allowing the child to be physically cared for by the grandparent is not required under these circumstances.
Finally, if the grandparent has been physically caring for the child for more than 182 days, within the last 182 days, the grandparent can also petition the court seeking parental responsibilities. The grandparent must show that he or she was acting in a parental role by physically caring for the child, rather than in a grandparent-like role. If the child is cared for by the grandparent under the supervision and direction of the parent, the grandparent is acting in a grandparent-like role and will not likely succeed at obtaining parental rights. It is significant to note that this does not mean that grandparents have to be the exclusive caretaker of the child during the 182 days.
Grandparent rights are a complicated legal matter that must be handled with care. If you are seeking to gain grandparent visitation or parental rights over your grandchild, contact the seasoned family law attorneys at GEM Family Law to discuss your options.
Authored by: Erika Gebhardt, Esq.
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