COCODE

14-10-124.4. Family time for grandparents or great-grandparents - legislative declaration - definitions.

Statute text

(1) (a) The general assembly finds and declares that:

(I) A close relationship between grandparents or great-grandparents and grandchildren or great-grandchildren can be beneficial for the health and well-being of grandchildren or great-grandchildren; and

(II) Grandparents or great-grandparents may provide acceptance, patience, love, stability, wisdom, and support to grandchildren or great-grandchildren.

(b) The general assembly further finds that it may be in the best interests of grandchildren or great-grandchildren for grandparents or great-grandparents to be granted grandparent or great-grandparent family time because of the positive effects the relationship may have on a grandchild's or great-grandchild's health and well-being.

(2) As used in this section, unless the context otherwise requires:

(a) "Grandparent" means a person who is the parent of a child's father or mother, who is related to the child by blood, in whole or by half, adoption, or marriage; except that "grandparent" does not include the parent of a child's legal father or mother whose parental rights have been terminated in accordance with sections 19-5-101 and 19-1-104 (1)(d).

(b) "Great-grandparent" means a person who is the grandparent of a child's father or mother, who is related to the child by blood, in whole or by half, adoption, or marriage; except that "great-grandparent" does not include the grandparent of a child's legal father or mother whose parental rights have been terminated in accordance with sections 19-5-101 and 19-1-104 (1)(d).

(c) "Grandparent or great-grandparent family time" or "grandparent family time" means any form of contact or engagement between grandparents or great-grandparents and their grandchildren or great-grandchildren for the purposes of preserving and strengthening family ties.

(3) Any grandparent or great-grandparent of a child may, in the manner set forth in this section, seek a court order granting reasonable grandparent family time with a grandchild or great-grandchild when there is or has been a child custody case or a case concerning the allocation of parental responsibilities with respect to that child. Because cases arise that do not directly deal with child custody or the allocation of parental responsibilities but nonetheless have an impact on the custody of, or parental responsibilities with respect to a child, for the purposes of this section, a "case concerning the allocation of parental responsibilities with respect to a child" includes any of the following, whether or not child custody was or parental responsibilities were specifically an issue:

(a) The marriage of the child's parents has been declared invalid or has been dissolved by a court or a court has entered a decree of legal separation with regard to such marriage;

(b) Legal custody of or parental responsibilities with respect to the child have been given or allocated to a party other than the child's parent or the child has been placed outside of and does not reside in the home of the child's parent, excluding any child who has been placed for adoption or whose adoption has been legally finalized; or

(4) A party seeking a grandparent family time order shall submit, together with the party's petition for grandparent family time, to the district court for the district in which the child resides, an affidavit setting forth facts supporting the requested order and shall give notice, together with a copy of the party's affidavit, to each party involved in the allocation of parental responsibilities proceedings as determined by a court pursuant to this article 10. The party with legal custody or parental responsibilities as determined by a court pursuant to this article 10, may file opposing affidavits. If neither party requests a hearing, the court shall enter an order granting grandparent family time to the petitioning grandparent or great-grandparent only upon a finding that the grandparent family time is in the best interests of the child. A hearing must be held if either party so requests or if it appears to the court that it is in the best interests of the child that a hearing be held. At the hearing, parties submitting affidavits are allowed an opportunity to be heard. If, at the conclusion of the hearing, the court finds it is in the best interests of the child to grant grandparent family time to the petitioning grandparent or great-grandparent, the court shall enter an order granting grandparent family time. In determining the best interests of the child for the purpose of grandparent or great-grandparent family time, the court shall presume the parental determination regarding grandparent time is in the best interests of the child. A grandparent or great-grandparent may overcome the presumption upon a showing by clear and convincing evidence that the grandparent family time is in the child's best interests. In making this determination, the court shall consider the factors described in section 14-10-124 (1.5)(a).

(5) The court may appoint a legal representative of a child pursuant to section 14-10-116 to represent the best interests of the child in a proceeding pursuant to subsection (4) of this section.

(6) A grandparent or great-grandparent shall not file a petition seeking an order granting grandparent family time more than once every two years absent a showing of good cause. If the court finds there is good cause to file more than one such petition, it shall allow such additional petition to be filed and shall consider it. The court may order reasonable attorney fees to the prevailing party. The court may not make any order restricting the movement of the child if such restriction is solely for the purpose of allowing the grandparent or great-grandparent the opportunity to exercise the grandparent's or great-grandparent's family time with the grandchild or great-grandchild.

(7) The court may establish, modify, or terminate grandparent family time if the order would serve the best interests of the child.

(8) An order establishing, granting, or denying parenting time rights to the parent of a child does not affect grandparent family time granted to a grandparent or great-grandparent as long as the grandparent family time is in the best interests of the child pursuant to this section.

History

Source: L. 2023: Entire section added with relocations, (HB 23-1026), ch.243, p. 1302, 2, effective August 7.

Annotations

Editor's note: Subsection (3) is similar to 19-1-117 (1); subsection (4) is similar to 19-1-117 (2); subsection (6) is similar to 19-1-117 (3); subsection (7) is similar to 19-1-117 (4); and subsection (8) is similar to 19-1-117 (5) as they existed prior to 2023.

Annotations

Cross references: For the short title ("Grandparents' Rights for Aaliyah and Myah Act") in HB 23-1026, see section 1 of chapter 243, Session Laws of Colorado 2023.

Annotations

ANNOTATION

Annotations

Law reviews. For article, "Parental Rights and Responsibilities of Grandparents and Third Parties", see 30 Colo. Law. 63 (May 2001). For article, "The Constitutionality of Colorado's Grandparent Visitation and Third-Party Standing Statutes", see 32 Colo. Law. 51 (Feb. 2003). For article, "Securing the Nonparent's Place in a Child's Life Through Adoption and Adoption Alternatives", see 37 Colo. Law. 27 (Oct. 2008). For article, "Constitutional Issues and Legal Standards in Parental Responsibility Matters", see 42 Colo. Law. 33 (Jan. 2013).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

This section not unconstitutional on its face. This section may be construed to embody the protections required by Troxel v. Granville, 530 U.S. 57 (2000). The court read this section as requiring that the biological parent's decisions concerning grandparent visitation must carry special weight and significance in the adjudication of the grandparent's visitation petition. The burden of proof must be such that the parent need not prove that the grandparent visitation would adversely affect the child. In re C.M., 74 P.3d 342 (Colo. App. 2002); In re R.A., 66 P.3d 146 (Colo. App. 2002).

Section does not violate due process clause of the United States Constitution merely because it authorizes visitation rights for grandparents. In re M.G., 58 P.3d 1145 (Colo. App. 2002).

Due process does not require a showing of parental unfitness prior to applying the best interest of the child standard to determine custody of a child. In re R.A., 66 P.3d 146 (Colo. App. 2002).

Adoptive parents not similarly situated to biological parents for purposes of an equal protection analysis when determining the threshold circumstances under which grandparents could be permitted to seek court-enforced visitation rights. In re Petition of R.A., 66 P.3d 146 (Colo. App. 2002).

The wishes of adoptive parents should be given "special significance" like those of biological parents in determining the merits of a grandparents' visitation request, since the intent underlying the adoption statutes is to place the adopted child in the same position as the natural child and, correspondingly, bestow upon the adoptive parents the same rights and duties of natural parents. In re Petition of R.A., 121 P.3d 295 (Colo. App. 2005), rev'd on other grounds sub nom. In re Adoption of C.A., 137 P.3d 318 (Colo. 2006).

Appropriate standard for issuance of an order of grandparent visitation requires: (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 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 they seek is in the best interests of the child. In re Adoption of C.A., 137 P.3d 318 (Colo. 2006).

In applying the best interest of the child standard in grandparent visitation petitions, the court must, if it orders grandparent visitation, make findings of fact and conclusions of law identifying those "special factors" upon which it relied. In re Adoption of C.A., 137 P.3d 318 (Colo. 2006).

Colorado statute is construed to contain a presumption that parental determinations about grandparent visitation are in the child's best interest. This is a rebuttable presumption, however, when the grandparent presents clear and convincing evidence that the parent is either unfit to make the grandparent visitation determination or that the grandparent visitation decision made by the parent is not in the best interests of the child. In re Adoption of C.A., 137 P.3d 318 (Colo. 2006).

Grandparent bears same burden of proof in resisting subsequent motion to terminate grandparent visitation as in seeking initial order for grandparent visitation. Mother and adoptive father, as movants, have burden to present some evidence of a material change in circumstances affecting the child's best interests to support their motion to terminate grandparent visitation, and the marriage of the mother, the adoption of the child by stepfather, the reports of the child's therapist, and evidence of the child's difficulties in school met this burden. Grandparent must then rebut the presumption, by clear and convincing evidence, that mother's request to terminate visitation is in the best interests of the child. In re A.M., 251 P.3d 1119 (Colo. App. 2010).

Nonparent need not show demonstrated harm to child to satisfy "special weight" accorded to parental determinations. In re Adoption of C.A., 137 P.3d 318 (Colo. 2006); In re Reese, 227 P.3d 900 (Colo. App. 2010).

Trial court correctly determined that the filing requirement set forth in this section did not affect the court's subject matter jurisdiction; instead, this section is a venue provision and, as such, is subject to waiver. In re Villalva, 56 P.3d 1214 (Colo. App. 2002).

Hearing required if custodial parent requests. Subsection (2) requires the trial court to hold a hearing if the custodial parent so requests. In re Seright, 649 P.2d 730 (Colo. App. 1982).

Filing of an opposing affidavit is not a condition precedent to the exercise of the right to require the holding of such a hearing. In re Seright, 649 P.2d 730 (Colo. App. 1982).

No time limitation for hearing request. This section does not specify any time limitation upon the abilities of the custodial parent to request a hearing. In re Seright, 649 P.2d 730 (Colo. App. 1982).

Denial of visitation rights held in the best interests of the children. Kudler v. Smith, 643 P.2d 783 (Colo. App. 1981).

Proceeding under article 4 of this title is a custody case for purposes of this section. F.H. v. K.L.M., 740 P.2d 1006 (Colo. App. 1987).

Dependency and neglect proceeding is a custody case for purposes of this section. People in Interest of J.W.W., 936 P.2d 599 (Colo. App. 1997).

Father did not have standing to argue the inadequacy of visitation rights of child's grandparents. In Interest of D.R.V., 885 P.2d 351 (Colo. App. 1994).

Grandmother lacked standing on the sole basis that the children did not reside with their father, who was never married to the children's mother, as the plain meaning of this section does not authorize the court to hear grandmother's petition unless there has been a judicial intervention into the marriage of the children's parents, a judicial placement of the children outside their family, or the death of the grandparent's child. In re D.C., 116 P.3d 1251 (Colo. App. 2005).

A paternity proceeding is a "child custody case" within the meaning of this section and, therefore, grants grandparent standing to seek visitation under the statute. Although paternity actions are not enumerated in this section, the statute has been construed to include paternity actions within its definition of a child custody case. In re K.L.O-V., 151 P.3d 637 (Colo. App. 2006).

"Great-grandmother" does not fall within the definition of "grandparent", therefore, great-grandmother lacked standing to seek visitation under this section. In re M.D.E., 2013 COA 13, 297 P.3d 1058.

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. In re D.C., 116 P.3d 1251 (Colo. App. 2005).

Visitation is primarily a right of the child and only secondarily a right of the visiting party. Conditions on visitation are within the sound discretion of the trial court, taking the best interests of the child into consideration. In re Oswald, 847 P.2d 251 (Colo. App. 1993).

Order under this section expressly allowing noncustodial grandparent to take children to church, contrary to wishes of custodial parent, was invalid and unconstitutional. In re Oswald, 847 P.2d 251 (Colo. App. 1993).

Because trial court made no findings concerning child's best interests, did not accord special weight to mother's visitation proposal nor address whether mother's proposal would fail to meet the child's interests, and made no findings supporting its order allowing grandparent to take child to Wyoming over mother's objections, the visitation issue must be redetermined. In re C.M., 74 P.3d 342 (Colo. App. 2002).

This section does not authorize an order impinging on custodial parent's rights under 14-10-130. In re Oswald, 847 P.2d 251 (Colo. App. 1993).

The presumption giving custodial preference to biological parent need not be accorded to a legal guardian. In re M.G., 58 P.3d 1145 (Colo. App. 2002).

No irreconcilable conflict between subsections (1)(b) and (1)(c). The so-called "adoption exclusion" in subsection (1)(b) has been construed to apply only when a child becomes available for adoption because the natural parents' rights have been legally terminated. Thus, subsection (1)(b) creates an interim statutory right in favor of grandparents to visit grandchildren until placement of the child for adoption or entry of a final decree of adoption. Under subsection (1)(c), a grandparent may seek visitation even after an adoption if a parent is deceased. In re R.A., 66 P.3d 146 (Colo. App. 2002).

Grandparents' visitation rights not subject to exclusion under subsection (1)(b). Exclusionary statutory phrase concerning a child for whom adoption is pending or final pertains only to situations in which legal custody is vested in someone other than child's natural parents or in which child is place out of the natural parents' home. In re Aragon, 764 P.2d 419 (Colo. App. 1988).

Grandparents' visitation rights not automatically terminated by adoption of child by natural parent's new spouse. Paternal grandparents' right to visitation with grandchild after dissolution of parents' marriage was not automatically divested when child was subsequently adopted by mother's new spouse. In re Aragon, 764 P.2d 419 (Colo. App. 1988).

Grandparents' visitation rights automatically terminate upon completion of adoption, regardless of whether adoption is by strangers or a natural relative. Thus, paternal grandparents' visitation rights terminated upon completion of adoption by maternal grandparents. People in Interest of N.S., 821 P.2d 931 (Colo. App. 1991).

Grandparent's visitation rights terminated and grandparent did not have standing to assert rights under this section where she did not seek to intervene in dependency and neglect proceeding and no order granting her leave to do so was entered by the trial court. People in Interest of J.W.W., 936 P.2d 599 (Colo. App. 1997).

Grandparent's visitation rights terminated and grandparent did not have standing in the relinquishment proceedings where the child had been placed for adoption with the family designated by the birth parents. Petition of B.D.G., 881 P.2d 375 (Colo. App. 1993).

Grandparent's visitation rights are lapsed, not terminated because of death of biological parents. In re R.A., 66 P.3d 146 (Colo. App. 2002).

Adoptive parents and biological parents not treated differently when grandparents are allowed visitation rights of an adopted child unless a custody case has taken place. In re R.A., 66 P.3d 146 (Colo. App. 2002).

Marriage dissolved for purposes of subsection (1)(a) speaks to the marriage between persons who were parties to child custody case. In re Davisson, 797 P.2d 809 (Colo. App. 1990).

Applicability of statute is not limited by parents' marital status at the time visitation motion is filed. In re Davisson, 797 P.2d 809 (Colo. App. 1990).

An administrative paternity proceeding is a child custody case within the meaning of subsection (1). People in Interest of A.M.B., 946 P.2d 607 (Colo. App. 1997).

This section does not confer an unconditional right to intervene in a paternity action under C.R.C.P. 24(a)(1) or as of right under 24(a)(2). Because the statute requires a grandparent to rebut the presumption that the parent's decision regarding visitation is in the child's best interest, it does not give rise to an absolute right to visitation. Because the statute does not vest a grandparent with an absolute right to visitation and issues concerning grandparent visitation are not inherent in a paternity action, there is no absolute or unconditional right for a grandparent to intervene in a paternity action. In re K.L.O-V., 151 P.3d 637 (Colo. App. 2006).

Subsection (3) does not authorize court to award attorney fees in all requests for grandparent visitation. Subsection (3) does not apply to initial requests for visitation; rather, it applies only when visitation rights have been established in a prior dissolution proceeding. In re Gallegos, 251 P.3d 1086 (Colo. App. 2010).