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By David M. Johnson, Johnson Kush PC

Grandparents are often called upon to assist in the care and upbringing of children. U.S. census data shows that 7.1 million American grandparents are living with their grandchildren under 18. Some 2.3 million of those grandparents are responsible for their grandchildren. About a third of grandchildren living with grandparents who are responsible for them are younger than 6. About half of the grandparents who are responsible for their grandchildren are 60 and over, according to census data. The reasons for this vary but often it is due to the parents of a child being unable or unwilling to care for the child because of health issues, addiction issues or because the parent is incarcerated.

Even if one or both parents are available to raise a child, grandparents are often called upon for childcare, getting kids back and forth to school or appointments and simply as extended family support. Children generally benefit from the involvement of grandparents in their lives. Grandparents bring a wealth of parenting experience and wisdom to a family. Parents often welcome the involvement of grandparents with their children.

But what happens if a grandparent finds that the parent or parents decide to limit or cut off the contact of the grandparent with a child? What legal rights, if any, do grandparents have in Colorado to be involved in the lives of their grandchildren.

Colorado has recognized limited rights of grandparents for over 35 years. The original statute recognizing grandparent visitation was passed into law in 1987. Recently the Colorado legislature revised this statute. The new law now recognizes that grandparents and great-grandparents may pursue “family time” with grandchildren and great-grandchildren.

CRS 14-10-124.4. In 2023 the legislature revised and updated the statute on grandparent visitation. It added great-grandparents to the class of relatives who can seek a court order to establish contact with the child. The term “visitation” has been replaced by “family time”.

In order to obtain a court order for family time, the grandparent or great-grandparent must first show that there is a prior existing court case involving either the custody of the child or the allocation of parental responsibilities for the child. Usually, this will be a case between the parents for divorce or legal separation or, if they are not married, allocation of parental responsibilities and child support. Other court cases may arise if a child is placed outside the care of either parent due to parent’s unavailability or neglect or abuse. Finally, a grandparent or great-grandparent may seek a court order if there is no prior existing court case but the parent who was the child or grandchild of the grandparent or great-grandparent has died.

Parent v. Grandparent/Great-grandparent. It is very important to point out that under the law parents have the constitutional right to raise their children and to make choices for their children. The Supreme Court of the United States ruled in the case of Troxel v. Granville that one of the oldest fundamental liberty interests of a parent is the right to the care, custody and control of their children. It found that in most cases parents have this right and that courts should not interfere with this right unless the parent is unfit or the decision of the parent is clearly not in the best interests of the child. Any dispute between a fit parent and grandparent or great-grandparent over custody of a child or family time with a child is not a contest between equals.

Presumption in Favor of the Decision of a Parent. In Colorado the court presumes that a fit parent will make decisions for the child that are in the best interests of the child. This presumption favors the decision of the parent to either limit or terminate the child’s contact with a grandparent or great grandparent. In order to overcome this presumption, the grandparent or great grandparent must present evidence that is clear and convincing that either the parent is unfit or that the decision of the parent to limit time or cut off the time is not in the child’s best interests. The facts of each case will be different. There is no simple answer to “What is clear and convincing evidence?” Suffice it to say that the proof must be greater than slightly tipping the scale in favor of the wishes of the grandparent or great-grandparent. The proof must be either that the parent is unfit due to mental health, addiction or criminal problems or because of neglect or abuse; or that the decision of the parent who is fit is not in the best interests of the child. If the parent is fit, the likelihood of showing their decision is not in the best interests of the child is slim.

This means that if a parent and grandparent or great-grandparent do not agree on the level of involvement of the grandparent or great-grandparent in the life of the child, the decision of the fit parent is going to prevail almost 100% of the time.

If the child or grandchild of the grandparent or great-grandparent is alive, having a good relationship with that child or grandchild will go a long way to ensure that the grandparent or great-grandparent will be able to have a relationship with the child. If the child or grandchild had died, cultivating a good relationship with the surviving parent is the best way to make sure that a grandparent or great-grandparent will be involved in the life of the child.

Seeking Custody of a Grandchild. Seeking to have the care, custody and control of a grandchild is a different issue than seeking family time. A different set of statutes apply. This issue will be the subject of a future blog article on the Johnson Kush website.