There are essentially four ways grandparents can assert legal rights to their grandchildren in Colorado: 1) through allocation of parental responsibilities proceedings; 2) by seeking grandparent visitation; 3) through guardianship; and 4) as part of a dependency and neglect (child welfare) proceeding.
BURDEN OF PROOF
Parents have a constitutionally-protected right to parent their children. In Colorado, a presumption exists that fit a parent’s determination of visitation and care of his/her child is appropriate. Grandparents must show by clear and convincing evidence that a parent’s determination is not in the child’s best interests. Grandparents must also show by clear and convincing evidence that their request for visitation is in the child’s best interests. The “clear and convincing” standard is a high standard. “Clear and convincing” means highly probably and free from serious or substantial doubt. “Preponderance” means more probably true than not. “Best Interests” is defined by statute in Colorado, including 9 factors that the court must consider.
ALLOCATION OF PARENTAL RESPONSIBILITIES
You, as a grandparent, can seek parental responsibilities of a child if one of the following apply:
- You have had physical care of the child for 182 days or more and no more than 182 days has passed since the care ended;
- The child is not in the physical care of either parent; or
- You have been granted custody or parental responsibilities of a child in a dependency and neglect case.
You, as a grandparent, can seek visitation of your grandchildren if there is a custody case or case regarding the allocation of parental responsibilities of the child, including a divorce or legal separation. You can also seek visitation if parental responsibilities or custody of the child has been given to someone other than a parent or if the grandparent’s child (the grandchild’s parent) has died. You may not seek visitation if the child has been placed with non-parents for adoption or if an adoption is final.
For purposes of grandparent visitation, a grandparent is a parent of a child’s mother or father, including step-parents. This law also applies to great-grandparents.
A grandparent can only petition every two years for visitation, unless good cause is shown.
You, as a grandparent, can seek guardianship of your grandchildren if one of the following exist:
- The child’s parents consent;
- Parental rights have been terminated;
- The parents are unwilling or unable to exercise their rights; or
- Guardianship was previously granted to a third party and that party has died or become incapacitated and did not appoint a replacement guardian.
Typically, guardianship is only a good option if the parents consent or their rights have been terminated, because the guardianship is tenuous otherwise.
DEPENDENCY AND NEGLECT
A dependency and neglect proceeding may be instituted by the county Department of Human Services. This is usually commenced after a child abuse or neglect claim is reported and the county determines the claim to be “founded.” The court may place a dependent and neglected child with grandparents, and grandparents may be given a preference for placement in some circumstances. Sometimes parents relinquish their rights and in that case, a grandparent may request custody/placement of the child in his/her home, but not if the parents have designated an adoptive family or the child has not been in the custody of the grandparents at all or not for more than 6 months. If parental rights are terminated, a grandparent may request custody/placement of the child.
In any case involving the Department of Human Services, the timing of the grandparents’ request is very important and varies depending on the specifics of the proceeding.
NOTICE TO PARENTS
In most instances, you will need to give notice, sometimes by personal service, to the parents of the child and anyone who has custody/physical care or legal rights to the child. Service by publication should only be used as a last resort, after you have exhausted all attempts to contact the parents, because the Court orders are weaker if proper notice was not given.
As grandparents, you have no legal responsibility to pay child support for your grandchild. If you have Parental Responsibilities (custody) of your grandchild, it is likely that both of the child’s parents will have a child support obligation to you. In guardianships, the law is less clear on whether the court can order parents to pay child support. If you are a guardian or are seeking grandparent visitation, your financial records should not be subject to disclosure for child support purposes.
POWERS OF ATTORNEY
A parent or guardian of a minor child may delegate a power of attorney to you as grandparent for a period not to exceed 12 months. You should use a special form that is available through an attorney or on the state judicial website.