GRANDPARENT RIGHTS – LEGAL AND PRACTICAL IMPLICATIONS

Kathryn M. Beck Beck, Jonson & Nolan, PC

GRANDPARENT VISITATION

Grandparent visitation rights are non-existent if the child’s parents have not filed any form of “child custody case” or “APR case” and both parents are living.

CRS 19-1-117 allows a grandparent (and since 2014, a great grandparent) to ask the Court to enter an order granting them reasonable grandparent visitation rights only if there is or has been a custody or APR action relating to that child.

Such actions include: -judicial intervention into the marriage such as: a dissolution of marriage case; an annulment (declaration of invalidity) case; a legal separation case; -death of the grandparent’s child: a circumstance where Grandparent’s deceased child was the parent of the grandchild (in this instance, no pending court case is required); - a judicial placement such as: actions when APR has been allocated to a non-parent; or, the child has been placed outside the home {exception: if child has been legally adopted – grandparent visitation is specifically excluded when child has been placed for adoption or adoption has occurred} (Dependency and Neglect actions have specific statutory criteria not discussed here) -paternity cases (not enumerated in statute but included by case law)

In re D.C., 116 P 3d 1251 (Colo. App. 2005) concludes that Mother may make determinations about the level of contact her children have with her own family without fear of court intervention when the children are in the care and custody of their mother (grandmother’s daughter) and there has been no prior court intervention.

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C.R.S. 14-10-116.5 does not address appointment of a CFI in a grandparent visitation case (unless it is being heard in conjunction with the parent’s APR case).

Does your order of appointment direct you to consider this issue? If not, should it?

Issue: Have Grandparents sought and been granted standing?

A parent does not have standing to argue in favor of grandparent visitation (if grandparents have not filed a request): this right of grandparents is derived statutorily and only the grandparents have this right. See: In the Interest of D.R.V., 885 P.2d 351, 355 (Colo. App. 1994).

Grandparent seeking visitation should first move to intervene pursuant to C.R.C.P. 24(b) (permissive intervention; a conditional right); and either C.R.S. 19-1-117 (or for APR, under C.R.S. 14-10-123), and ask the Court to allow him/her to intervene and file his/her motion for grandparent visitation.

-Court may determine the intervention will prejudice original parties’ rights or delay the case and deny intervention. See: In re K.L.O.-V., 151 P 3d 637 (Colo. App. 2006). -Court may say child’s best interest is served by hearing all issues together. -Court may defer grandparent request for grandparent visitation until issues between the parents are resolved. See: KLOV

After establishing standing, the grandparent must seek grandparent visitation (C.R.S. 19-1-117 (2)) by motion accompanied by Affidavit, telling the Court why their request should be granted.

The Court may act upon the motion and grant grandparent visitation rights if it finds grandparent visitation is in the best interest of the minor child.

The Court will go through the factors set forth in C.R.S. 14-10-124 (1.5).

2 (The mental health professional conducting a PRE or a CFI should do the same)

Parent may file a response, opposing the request, and can file an opposing Affidavit.

The Court must grant a hearing if such is requested by either side.

C.R.S. 19-1-117 (3) provides that Grandparents may file an Affidavit seeking visitation rights no more often than every two years, absent a good cause showing.

The Fundamental Right of Parents to Make Decisions

2000 United States Supreme Court case of Troxel v. Granville

-The Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

-In the United States, each and every state has grandparent visitation laws of some sort; they are not unconstitutional. Nonetheless, Troxel tells us that so long as a parent adequately cares for his/her child (“the parent is fit”), there will typically be no reason for a Court (the state) to inject itself into the family and question the ability of Mother or Father to make the best decisions concerning the raising of their own child(ren). In other words, biological parent’s decisions (about Grandparent visitation) must carry special weight.

Spineless and Good for Nothing do not have to prove that grandparent visitation would adversely affect the child (see: In re C.M., 74 P. 3d 342 (Colo. App. 2002)).

Colorado’s Supreme Court Case

In re Adoption of C.A., 137 P 3d 318 (Colo. 2006)

3 Sets forth the standard to be applied by the Court in determining grandparent visitation requests under C.R.S. 19-1-117.

There is a rebuttable presumption in favor of the parent’s determination as to grandparent visitation.

To rebut the presumption, Grandparents must establish that the parent’s determination is not in the best interest of the child OR that the parent is unfit to make the grandparent visitation determination (and that grandparent visitation IS in the child’s best interest).

The standard to be applied by the Court is clear and convincing evidence.

The Court must make findings of fact and conclusions of law identifying “special factors” that it relied upon in granting grandparent visitation.

Court cannot just say, “I gave special significance to the parent’s wishes,” the Court must show how it gave the parents’ wishes special weight (see: In re Petition of R.A., 121 P 3d 295 (Colo. App. 2005)).

In re M.G., 58 P. 3d 1145 (Colo. App. 2002): Maternal Grandmother had legal guardianship of grandchild. Paternal Grandmother sought grandparent visitation. Court of Appeals found that Court did not have to give Maternal Grandmother’s wishes special weight in this visitation dispute.

In re A.M., 251 P. 3d 1119 (Colo. App. 2010): Grandparents bear the same burden of proof in resisting a subsequent motion to terminate grandparent visitation as they bear in seeking grandparent visitation. In this case, Court found Mother and adoptive father had the burden of presenting some evidence of a material change in circumstances affecting the child’s best interests to support their motion to terminate grandparent visitation (they cited Mother’s marriage, Stepfather’s adoption, child’s therapist’s reports, evidence of child’s difficulties in school). Grandparent had the right to rebut the presumption, by clear and convincing evidence that Mother’s request was in the best interest of the child.

4 Stepparent adoption does not automatically terminate grandparent visitation rights (see: In re Aragon, 764 P. 2d 419 (Colo. App. 1988).

Grandparent visitation rights automatically terminate upon completion of adoption by stranger or natural relative (see: People in Interest of N.S., 821 P. 2d 931 (Colo. App. 1991); paternal grandparents’ visitation ends when maternal grandmother adopts child.

In re Marriage of Oswald, 847 P. 2d 251 (Colo. App. 1993): Courts must support a parent’s Constitutional right to determine child’s religious upbringing unless it is established that the child’s physical health would be endangered or emotional development significantly impaired. Thus, granting Grandmother the right to take child to church, over parent’s objection, was an undue interference in custodial parent’s right to determine issue of religion for child.

Grandparent visitation rights can be modified or terminated: standard is best interests.

Reality for counsel for Grandparents: as there is a presumption in favor of a parent’s decision, proceed carefully when seeking grandparent visitation over a parent’s strong objection.

Reality for mental health professional working with Grandparents: it is up to the Court to make the ultimate determination concerning grandparent visitation rights; it is your job to set forth an analysis of the facts, not make the legal call.

GRANDPARENTS SEEKING ALLOCATION OF PARENTAL RESPONSIBILITIES/DECISION MAKING

Standing: Child must have been in their physical care for more than six months, and; they must have initiated an APR action within six months of the child leaving their physical care; or

Child must not be physical care of Mother or Father.

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Physical Care: What’s in a rose? By any other name . . .

Court examines: the nature of the contact; the duration of the contact - the frequency of the contact between Grandparent and the grandchild and frequency of contact Parents and child.

Has Grandchild been in the physical care of Grandparent; is there a “bond” with Grandparent? In re LF, 121 P 3d 267 (Colo. App. 2005).

The Court is not required to find that the physical care was uninterrupted or exclusive of the parent’s care (see: In the Interest of E.L.M.C., 100 P. 3d 546 (Colo. App. 2004))

In re Custody of C.C.R.S., 892 P. 2d 246 (Colo. 1995).

Does Grandparent need to prove that Parent voluntarily relinquished care of the child to them? (see: In the Interest of B.B.O., 277 P. 3d 818 (Colo. 2012))

Court could determined Grandparent did not have physical care of child for purposes of standing to seek APR because Grandparent’s care was provided at Mother’s direction and under Mother’s supervision (in spite of frequent overnights with Grandparent; Mother acted as Parent with Grandparent serving as a mentor). See similar case: IN re D.T., 292 P. 3d 1120 (Colo. App. 2012).

Once standing is set, Court again considers best interest factors in C.R.S. 14-10-124 (1.5) in establishing how much decision making authority should be accorded to Grandparent.

Presumption in Favor of Parent

Again, Court presumes Parent has first and prior right to make decisions concerning child; and Parent again enjoys presumption that they are “fit” and will act in the best interest of their child.

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Grandparent must rebut presumption: the child’s best interest is better served by granting Grandparent decision making.

Grandparent does not have burden of proving Parent is unfit; Grandparent must prove it is in child’s best interest for Grandparent to make decisions regarding child.

Clear and convincing evidence standard (In re Parental Responsibilities of Reese, 227 P. 3d 900 (Colo. App. 2010).

If Parent gave Grandparents “custody” consensually, then seeks it back, the parental preference presumption remains intact. (see: In re D.I.S., 249 P. 3d 775 (Colo. 2011) and, In re Parental Responsibilities Concerning BRD, 280 P.3d 78 (Colo. App. 2012).

A Court meets the due process requirement in Troxel to accord “special weight” to Parent’s determination of the best interest of a child by considering all relevant factors set forth in C.R.S. 14-10-124 (1.5) and entering findings based on clear and convincing evidence that granting parental responsibilities to the nonparent (substitute Grandparent here) is in the child’s best interest. See: Reese, and In re M.W.

In considering Grandparent’s request for APR, the Court must consider: the presumption favoring the parent; whether non-parent (Grandparent) has shown by clear and convincing evidence that the parent’s determinations do not favor the best interest of the minor child; grandparents must show their request for APR is in child’s best interest; the “special factors” upon which the Court relied

Attorneys argue these facts; Evaluators go through a similar analysis.

Whether Mother/Father are fit parents and generally make decisions in the child’s best interest is relevant, but not dispositive or conclusive in determining whether it is in the child’s best interest to allocate parental

7 responsibilities to Grandparent. (In re M.W.) Court just must make sure to accord special weight to parents in making its decision.

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